Tuesday, January 23, 2018

Lovett On All Things Property

LovettJohn Lovett (Loyola-NOLA) has recently posted a number of interesting pieces on SSRN. Check them out below:

Into Centuries of Centuries: Reflections on Marc R. Poirier (1952-2015) (Journal of Law, Property, & Soc’y):

This essay reflects on the contributions to property law scholarship and teaching made by Marc R. Poirier (1952-2015), Professor of Law at Seton Hall School, over the course of his twenty-five year career in the legal academy. Marc Poirier was a distinguished scholar and great friend to many in the property law world. The essay recounts Poirier’s formative experiences as a student at Harvard Law School and in practice in Washington, D.C. It details his teaching innovations and his many institutional contributions to Seton Hall and the wider legal academy. It also provides a brief overview of Poirier’s remarkable range of scholarship on property law, emphasizing his syncretic, inter-disciplinary approach to property law and theory, environmental law and law dealing with gender identity and human rights. It draws attention to Poirier’s iterative, generous, and, above all, caring approach to scholarship, teaching and life.

Disseisin, Doubt, and Debate: Adverse Possession Scholarship in the United States (1881-1986) (Texas A&M Law Review):

This article addresses how U.S. and occasionally English property scholars discussed, analyzed and understood the doctrine of adverse possession between 1881 and the early 1980s. It fills a gap in current American property law scholarship by taking a deep, historiographic approach to a century of American adverse possession discourse, beginning with the ruminations of Oliver Wendell Holmes on possession in The Common Law (1881) and culminating in the famous tournament of scholars featuring R.H. Helmholz and Roger Cunningham (1983-86).

The article identifies and analyzes several major themes that emerge throughout this long century of adverse possession discourse. Those include: (1) constant debate over the fundamental doctrinal nature of adverse possession; (2) frequent attempts to distill the social, economic and systemic purposes served by the doctrine; (3) preoccupation with the Americanization of the English common law of adverse possession, and (4) attentiveness to incremental developments in U.S. courts and modest attempts to influence that development, occasionally interrupted by more radical prescriptive and theoretical critiques.

The article demonstrates that American adverse possession scholarship during this period was generally endogenous, apparently uninterested, with a few notable exceptions, in any social, economic or market factors occurring outside the academy or the narrow confines of adverse possession case law. This article recovers for contemporary lawyers, judges and property scholars the impressive learning and frequently brilliant insights that scholars such as Henry Ballantine, Percy Bordwell, William Walsh, William Stoebuck and Charles Callahan provided in their work — insights, which in many instances, foreshadowed scholarly innovations that appeared in subsequent decades.

Moving to Higher Ground: Protecting and Relocating Communities in Response to Climate Change (Vermont Law Review):

As many dramatic recent flooding events illustrate, the risks posed by global climate change continue to mount. Rather than attempt to prove a causal connection between any of these tragic events and climate change, this article focuses on what many scholars and public policy advocates now realize is an inevitable response: retreat — especially moving households and entire communities to higher ground.

This article answers four interrelated questions that relate to the challenge of protecting or relocating communities threatened by sea-level rise and climate change in the specific context of takings claims and government land acquisition programs. These questions are visualized as forming a chronological decision tree which government officials, legislators and, inevitably, courts will face.

First, the article addresses whether property owners can assert a valid takings claim based on a governmental decision not to build hard infrastructure that would protect land, homes and businesses from sea-level rise and flooding? The article’s answer is no; takings liability does not exist in this situation. Next, the article asks whether governmental actors — federal, state or local — are likely to use the power of eminent domain to relocate property owners and entire communities to higher ground? Again, the answer is no; the political unpopularity of eminent domain will usually take this option off the table.

If governments do not use eminent domain to relocate communities but do want to use public resources to create voluntary property acquisition programs designed to facilitate the movement of households and, indeed communities, to higher ground, what strategies have proved to be most successful? To answer this question, the article reviews a handful of recent experiments and distills several lessons from this experience.

Finally, the article tackles a residual question that follows from the previous three. If a government sponsored buy-out program succeeds in inspiring a large percentage of property owners in a community to sell their property and actually move to higher ground (or if large numbers of property owners leave on their own volition for other reasons), what obligations, if any, does the government still owe to those who remain behind, especially when it comes to maintaining infrastructure and government services? Would a county, a state, the federal government, or even a public utility be able to withdraw infrastructure support and services and leave the remainder of the community to fend for itself in the face of ever-rising waters and more ferocious storms? To answer this question the article describes several recent cases and scholarly claims that purport to open the door to potential “passive takings” liability for governmental inaction in these circumstances. The article concludes by noting the irony that although governments generally do not face liability for failing to build hard infrastructure to protect communities from the risks of climate change at the outset, if their relocation and buy-out programs partially — but not entirely — succeed, they might face takings liability at the end of the day.

Tacking in a Mixed Jurisdiction (Andrew Steven ed., Avizandum 2017):

This book chapter addresses a key moment in the development of Louisiana’s law of acquisitive prescription. For one hundred and forty years, Louisiana courts had held that a possessor in bad faith could cumulate her possession with that of a prior possessor in good faith for purposes of establishing ten year acquisitive prescription regardless of whether the two possessions were linked by particular or universal succession. In Bartlett v. Calhoun, 412 So.2d 597 (La. 1982), the Louisiana Supreme Court reversed course and held that a subsequent possessor who acquires her possession by particular title must have all the statutory characteristics and conditions required for ten year acquisitive prescription. In other words, a bad faith possessor cannot tack her possession to the good faith possession of a prior possessor for purposes of achieving ten year acquisitive prescription if the subsequent possessor acquires possession by particular title.

This book chapter analyzes the doctrinal background preceding the decision in Bartlett, comments on the significance of the decision, reveals the dispute’s surprising final outcome, and responds to the decision’s critics, arguing that the alleged doctrinal asymmetry produced by the decision has not troubled subsequent Louisiana courts and explaining why the decision has acquired its own canonical weight in Louisiana property law. The book chapter concludes by providing a brief comparative excursion into Scots law of positive prescription, demonstrating that Scots law would solve the factual problem presented in Bartlett by focusing judicial inquiry on questions related to the authenticity of an allegedly forged deed rather than the good faith of a second possessor.


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