Monday, October 15, 2018
Spring 2019 Full-Time Faculty Podium Visitors
The John Marshall Law School in Chicago seeks one or two full-time visiting faculty members for the Spring 2019 semester. We need coverage in the areas of Civil Procedure(evening course), Secured Transactions, and Estates & Trusts. The appointment is for one semester, but we will be seeking visitors for the 2019–2020 academic year in these areas plus some combination of Evidence, Criminal Law, and Property.
Candidates should have taught full-time at an ABA-approved law school.
Submit a current CV, cover letter, and three professional references to Associate Dean David Sorkin at email@example.com. The review will begin immediately and continue on a rolling basis until one or both positions are filled. We may request a Skype or in-person interview and submission of prior teaching evaluations.
The John Marshall Law School, finding any invidious discrimination inconsistent with the mission of free academic inquiry, does not discriminate in admission, services, or employment on the basis of race, color, sex, religion, national origin, ancestry, age, disability, veteran status, marital status, sexual orientation, gender identity, gender expression, genetic characteristics, or any other characteristic protected by applicable law.
Wednesday, October 10, 2018
Job Announcement – Visiting Assistant or Associate Professor for Property
The University of Missouri-Kansas City School of Law seeks to hire a visiting professor for the Spring 2019 semester to teach Property II and perhaps one other course that meets an area of need.
UMKC School of Law seeks faculty members with a strong commitment to educating lawyers for the twenty-first century, and those who will actively participate in our collegial, collaborative community. It is the urban law school of the University of Missouri System and is located on a beautiful landscaped campus in the Country Club Plaza area of Kansas City, Missouri, a vibrant metropolitan area of more than two million people. UMKC offers courses leading to J.D. or LL.M. degrees for approximately 400 students.
UMKC is an equal access, equal opportunity, affirmative action employer that is fully committed to achieving a diverse faculty and staff. Equal Opportunity is and shall be provided for all employees and applicants for employment on the basis of their demonstrated ability and competence without unlawful discrimination on the basis of their race, color, national origin, ancestry, religion, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status. For more information, call the Vice Chancellor – Human Resources at 816-235-1621. To request ADA accommodations, please call the Office of Affirmative Action at 816-235-1323.
Applicants must apply through the UMKC’s Human Resources website: http://www.umkc.edu/hr/career-opportunities/default.asp.
Inquiries may be sent to:
Professor Kenneth Ferguson
Chair Appointments Committee
500 E. 52nd St.
Kansas City, MO 64110
Saturday, October 6, 2018
Check out Brian Leiter's blog for the top ten most-cited property professors in the U.S. for the period between 2013-2017.
Monday, October 1, 2018
This just in from John Felipe Acevedo (Alabama):
CALL FOR PAPERS: Socio-Legal Approaches to Property – CRN 49
Panels to be held at the Law and Society Association Annual Meeting
May 30-June 2 2019, Washington DC
Abstract Deadline – October 25th 2018
We invite original, unpublished submissions from scholars at any stage of their careers. We are interested in empirically-based papers examining any issues related to the treatment of land and other tangible things as property. Topics may include but are not limited to: land tenure; indigenous forms of property; collectives and property pluralism; land use; symbols of property; resource extraction; civil forfeiture, inheritance; embodied property; redistribution of property; social movements and resistance to property. We will consider all empirically-grounded papers that focus on tangible property, anywhere in the world. All kinds of empirical methods are welcome, including historical, statistical, interviews, comparative, ethnographic, case study, discourse analysis, etc. Also note that papers submitted for publication, but not yet accepted, are also welcome.
If you have a book you would like discussed in a panel session, then please get in touch as we are hoping to have an “authors meet readers” session. Also, if you would be interested in serving as a session chair or discussant please let us know.
We are hoping to have as many panels as possible, so please submit your work, and encourage your colleagues and students to the same!
To submit your paper for consideration, please provide the following information at our website https://slap-propertylaw.org/ or email Antonia Layard, Antonia.firstname.lastname@example.org or Dave Cowan, email@example.com:
• A 100-250 word abstract describing the topic, methodological approach, and findings (or expected findings) of your paper. For more detailed instructions on composing abstracts, see LSA website.
• The paper title
• Your contact information including affiliation, discipline(s), and email
The deadline for submission is 11:59 PM Eastern Time on October 25th.
We will notify all authors about the results of their submissions by email within about a week. If accepted, authors will receive instructions about how to submit abstracts directly to the Law and Society Association which must be done before 7th November 2018.
If you would like to be removed from our mailing list please contact John Acevedo, [firstname.lastname@example.org]jacevedo@
Sunday, September 16, 2018
REMINDER: The AALS Section on Property Law is pleased to announce two Calls for Papers for the AALS 2019 Annual Meeting in New Orleans, Louisiana:
Call for Papers for AALS Section on Property Law:
Property, Capitalism, and Structural Inequality
Property Law Program at the AALS Annual Meeting
Friday, January 4th, 2019 | 10:30am ‐ 12:15pm
Property, Capitalism, and Structural Inequality
With the rise of the individualized ‘gig economy’, the increasing reliance on financial actors in economic and urban development projects, the privatization of pension arrangements and attacks on unions, and the scandals of inequality and housing crises in many places around the world, it is hard not to recognize that the role of property in globalized forms of capitalism has been shifting over the past decades. These transformations manifest themselves legally in the forms of property, the identities of property holders - and relatedly, the patterns of social life - that are seen as legitimate and as worthy of protection and perpetuation. Newly empowered agents, governance mechanisms, and discourses provide the conceptual and material architecture that support these transformations. This panel attempts to contextualize those shifts by engaging with local, regional, and global instantiations of transnational patterns of property concentration and exclusion, and their justifications.
Please submit your 300 – 400 word abstract submissions in Word or PDF to the Property Section Chair Priya Gupta at email@example.com with “Submission: AALS PropertyCapitalism” in the subject line. Submissions must be received by August 31, 2018 EXTENDED: September 21, 2018. Preference will be given to abstracts of projects that are substantially complete and that offer novel scholarly insights. Untenured scholars in particular are encouraged to submit their work.
Presenters will be responsible for paying their registration fee and hotel and travel expenses.
Call for Papers for AALS Section on Property Law:
Works-in-Progress Session at the AALS Annual Meeting
Thursday, January 3rd, 2019 | 3:30pm – 4:45pm
The AALS Property Law Section is organizing a works-in-progress session for pre-tenure scholars at this year’s annual meeting. This is meant to be an opportunity to present and get feedback on drafts that will not be published as of January 2019 and where feedback would be helpful. In addition to having the opportunity to share work through the panel, presenters will be matched with a senior scholar who will provide comments.
Please submit your 300 – 400 word abstract submissions in Word or PDF to the Property Section Chair Priya Gupta at firstname.lastname@example.org with “Submission: AALS Property WorksInProgress” in the subject line. Submissions must be received by August 31, 2018 EXTENDED: September 21, 2018.
Presenters will be responsible for paying their registration fee and hotel and travel expenses.
** Please also note that the Property Section Business Meeting will be held on Friday, January 4 from 7am - 8:30am. **
Sunday, September 9, 2018
Abstracts due October 15, 2018
Drafts due January 1, 2019
The Journal of Affordable Housing & Community Development Law(the Journal)invites articles and essays on the theme of sustainability in affordable housing, fair housing and community development. Contributions couldexplore sustainability from environmental, economic, social or political perspectives and address topics ranging from green building and disaster preparedness/response to affordable housing preservation to funding for local fair housing organizations. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Journalwelcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words).
In addition, the Journalwelcomes articles and essays on any of the Journal’straditional subjects: affordable housing, fair housing and community/economic development. Topics could include important developments in the field; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies.
The Journalis the nation’s only law journal dedicated to affordable housing and community development law. The Journaleducates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.
Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at email@example.com October 15, 2018. Submissions of final articles and essays are due by January 1, 2019.The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.
Saturday, September 8, 2018
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
Hartford's Experiment: Sustainable Zoning in a Post-Industrial City
Sara C. Bronin, Thomas F. Gallivan Chair in Real Property Law and Faculty Director, Center for Energy and Environmental Law, University of Connecticut School of Law
Professor R. Wilson Freyermuth, University of Missouri Law School
Thursday, August 30, 2018
Parking on public streets is scarce. The current allocation system for parking spots based on rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking has consequences for commerce, for access to public spaces, and for pollution and congestion. Municipalities have not widely adopted the solution that economists propose to solve this scarcity problem: increase the price. Politics aside, the reluctance of municipalities to do so may be explained by the unique nature of public property as reflected in well-rooted legal and societal constraints. This unique nature helps explain, for example, municipalities’ ban of software applications (apps) allowing occupants of curbside parking to “sell” their spots to would-be occupants in Boston or San Francisco. While the ban may be justified, the unique nature of public property is not incompatible with some well-designed, efficiency-oriented policies, as this paper will put forward. This article distills the legal constraints on curbside parking and any other public property management by drawing on case law regarding parking meters, case law on public resources managed in trust for the public, and decisions by municipalities regarding parking apps and privatization of parking meters. These constraints include, among others, that public property shall not be used to raise revenue, although placing a price on it may pursue other regulatory aims consistent with public use, or that municipalities shall not lose control of the public spaces dedicated to curbside parking. At a normative level, the above constraints provide a framework for assessing policies regarding curbside parking and, by extension the management of any other public property resources. At a positive level, the article proposes ways to make efficiency compatible with the principles guiding the management of public property. It analyzes to what extent the efficiency oriented policies that would translate into a price increase—variable pricing, tradable property rights, and privatization—clash with those principles constraining the monetization of public property. In addition, the article concludes by pointing to other situations where its analytical framework could be extended, such as other uses of public streets (for instance, use of public bus stops by shuttle-buses of private companies) or existing practices in connection to public resources of a similar nature (for instance, semi-privatization of beaches by surfers).
Tuesday, August 28, 2018
The rise of the sharing economy benefits consumers and providers alike. Consumers can access a wider range of goods and services on an as-needed basis and no longer need to own a smaller number of costly assets that sit unused most of the time. Providers can engage in profitable short-term ventures, working on their own schedule and enjoying many new opportunities to supplement their income. Sharing economy platforms often employ dynamic pricing, which means that the price of a good or service varies in real time as supply and demand change. Under dynamic pricing, the price of a good or service is highest when demand is high or supply is low. Just when a customer most needs a good or service – think bottled water after a hurricane – dynamic pricing may price that customer out of the market. This Article examines the extent to which the rise of the sharing economy may exacerbate existing inequality. It describes the sharing economy and its frequent use of dynamic pricing as a means of allocating scarce resources. It then focuses on three types of commodities – necessities, inelastic goods and services, and public goods and services – and discusses why the dynamic pricing of these three types of commodities raises the greatest inequality concerns. The Article concludes by asking whether some type of intervention is warranted and examining the advantages and drawbacks of government action, action by the private sector, or no action at all.
Monday, August 27, 2018
Gregory Alexander (Cornell) has posted Of Buildings, Statues, Art, and Sperm: The Right to Destroy and the Duty to Preserve (Cornell Journal of Law & Public Policy) on SSRN. Here's the abstract:
Markets require some sort of property rights, including transferability. Without transferable property rights market relations cannot get off the ground. Moreover, markets assume that these rights refer to some resource, some thing that is the object of the market relationship. In this sense property is, as some commentators recently have argued, about things. Saying that property is about things doesn’t tell us very much, though. It tells us nothing about the sorts of things that are the object of property rights, and it gives no indication whether property rights are uniform and fixed regardless of the sort of thing involved. Things are not all of a piece; pencils are not Picassos. There is no good reason to think that the law of property should treat all things alike. Modularity can take us only so far. Property law does and should make distinctions regarding the rights that owners have or don’t have and the extent of those rights depending upon the sorts of things they own. This Article investigates distinctions that property law does draw or should draw with respect to the right to destroy. That right has important implications for the market because the consequence of full exercise of the right, i.e., destruction of the thing, is complete and irrevocable removal of an asset from future market transactions. Where the asset involved is of a fungible sort, a pencil, for example, there is little cause for concern about this loss. The losses about which we worry, however, are those involving non-fungible items, pearls of great price. Such losses include historic buildings and important works of art. Disputes involving the right to destroy have ranged farther, though. Among the most contentious and sensitive of these are disputes over the disposition of human reproductive material. These controversies too have implications for the market, as human sperm and eggs may be sold and bought under certain conditions. Despite its importance, the right to destroy is one of the least discussed twigs in the proverbial bundle of rights constituting ownership. A recent article by Lior Strahilevitz analyzes the right in detail. Other than his article, only an earlier article by Edward McCaffery, and 1999 book by the late Joseph Sax, Playing Darts with a Rembrandt, have discussed the right to destroy within the past several decades. McCaffery’s essay takes the position that most courts have adopted, rejecting the claim that owners have the right to destroy that which they own. McCaffery regards such a right as “an embarrassment in Anglo-American law.” This appears to be the conventional wisdom, with the recent edition of Black’s Law Dictionary excluding the right to destroy from the incidents of ownership included in its definition of ownership. More recently, however, Lior Strahilevitz has provided a powerful defense of the right to destroy. Strahilevitz bases his argument substantially on expressive values implicated in an owner’s preference to destroy an object that he owns. Sax’s book opposes a right to destroy with respect to works that have cultural significance. This Article analyzes the right to destroy from the perspective of the human flourishing theory that I have been developing over the past several years. I will discuss four controversies in which the related questions whether owners have a right to destroy what they own and whether they have obligations to preserve their property. The settings that I will examine, albeit briefly, are historic preservation, artists’ destruction of their own work, removal of public statues, and destruction of frozen sperm. My aim is to show how the human flourishing theory provides an illuminating framework for analyzing what is at stake in disputes over an owner’s asserted right to destroy something that he owns. Hopefully, this framework will provide a more satisfying, analytically and morally, means of resolving such disputes. To set the stage for these case studies, I begin with a brief summary of Lior Strahilevitz’s argument in support of the right to destroy.
Tuesday, August 21, 2018
Good faith plays a pivotal role in four core areas of Louisiana property law that were the subject of an intense burst of law reform activity between 1977 and 1982. This article addresses the function of good faith in those areas: (1) as a prerequisite to the establishment of a predial servitude benefiting the owner of a building that encroaches on the property of a neighbor (Article 670 of the Louisiana Civil Code); (2) as a mediating device allocating the rights of an original owner of a corporeal movable and a subsequent transferee or acquirer under the bona fide purchaser doctrine (Articles 518 to 525 of the Louisiana Civil Code); (3) as a defining characteristic establishing rights and obligations under the law of accession when a person possesses immovable property without title (Article 487 of the Louisiana Civil Code); and (4) as a prerequisite for the acquisition of ownership or other real rights in immovable property by ten year acquisitive prescription (Articles 3480 to 3482 of the Louisiana Civil Code).
The article first observes that in all of the instances in which good faith is employed in Louisiana property law an initial owner of a corporeal thing either risks losing all or a portion of her property rights to another person who has invaded the owner's sphere of exclusive control or may be required to compensate another person who has acquired possession of the thing. In other words, the law shifts a property entitlement to someone who would ordinarily not be entitled to any legal protection. The article argues that in these entitlement shifting situations the Louisiana Civil Code uses the concept of good faith as a crucial mediating device, reallocating the rights and obligations of the original owner and the new player who has arrived on the scene either uninvited or through some intermediary transaction.
The article demonstrates that the concept of good faith has two essential components in those contexts: honesty and carefulness. Honesty is a fundamental and constant requirement for good faith status. Carefulness, however, plays a more variable role. In the context of building encroachments, the Civil Code only requires a minimal level of carefulness-no knowledge of obvious red flags. Under the bona fide purchaser doctrine, different market situations can lower or raise the level of carefulness required to achieve good faith status. In the law of accession, a good faith possessor must rely on a written title translative of ownership but otherwise must only be innocently unaware of defects. Finally, under the law of acquisitive prescription of immovables, a good faith possessor must rely on a just title and meet a rigorous standard of objective reasonableness.
This article shows that that as the consequences of the entitlement shifting rule increase, good faith is transformed from a relatively simplistic and mechanistic tool focused primarily on honesty to one that becomes increasingly precise, exacting and ethically responsive, focusing more and more on the transactional and contextual carefulness of the good faith claimant's actions-and sometimes on the relative carelessness of other parties in a property relationship. The article concludes by speculating on what Louisiana property law might gain and lose if the notion of good faith were banished from consideration.
Friday, August 3, 2018
Saturday, July 21, 2018
Registration is now open for the Central States Law Schools Association 2018 Scholarship Conference, which will be held on Friday, October 12 and Saturday, October 13 at the Texas A&M University School of Law in Fort Worth, Texas. We invite law faculty from across the country to submit proposals to present papers or works in progress.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Please click here to register. The deadline for registration is September 1, 2018.
For more information about CSLSA and the 2018 Annual Conference please subscribe to our blog. We look forward to seeing you in Forth Worth!
Monday, July 2, 2018
Happy Monday, property law profs! Last week, the National Low Income Housing Coalition released its annual report titled Out of Reach 2018. The basic takeaway is that there's nowhere in the US where a full-time worker (no over-time) earning minimum wage can afford a decent two-bedroom apartment. Here's an excerpt from the study:
The report’s Housing Wage is an estimate of the hourly wage a full-time worker must earn to afford a rental home at HUD’s fair market rent (FMR) without spending more than 30% of his or her income on housing costs. FMRs provide an estimate of what a family moving today can expect to pay for a modestly priced rental home in a given area. This year’s findings demonstrate how far out of reach modestly priced housing is for the growing low-wage work force, despite recent wage growth, and for other vulnerable populations across the country.
The 2018 national Housing Wage is $22.10 for a modest two-bedroom rental home and $17.90 for a modest one-bedroom rental home. Among the 50 states and the District of Columbia, the two-bedroom Housing Wage ranges from $13.84 in Arkansas to $36.13 in Hawaii. The five metropolitan areas with the highest two-bedroom Housing Wages are Stamford-Norwalk, CT ($38.19), Honolulu, HI ($39.06), Oakland-Fremont, CA ($44.79), San Jose-Sunnyvale-Santa Clara, CA ($48.50), and San Francisco, CA ($60.02).
A full-time worker earning the federal minimum wage of $7.25 needs to work approximately 122 hours per week for all 52 weeks of the year, or approximately three full-time jobs, to afford a two-bedroom rental home at the national average fair market rent. The same worker needs to work 99 hours per week for all 52 weeks of the year, or approximately two and a half full-time jobs, to afford a one- bedroom home at the national average fair market rent.In no state, metropolitan area, or county can a worker earning the federal minimum wage or prevailing state minimum wage afford a two-bedroom rental home at fair market rent by working a standard 40-hour week. In only 22 counties out of more than 3,000 counties nationwide can a full-time minimum- wage worker afford a one-bedroom rental home at fair market rent. These 22 counties are all located in states with a minimum wage higher than $7.25. Higher minimum wages are important, but they are not the silver-bullet solution for housing affordability. Thirty-eight local jurisdictions have their own minimum wages higher than the state or federal minimum-wage, but all fall short of the local one-bedroom Housing Wage.
An interesting feature of the report is that it includes an interactive map of the US where you can focus-in on a state and see the average hourly wage and hours of work per week need to afford to rent a 2 bedroom home. For example, Louisiana would require $16.63 per hour and a 92-hour work week. Oklahoma would require $15.41 per hour and a 85-hour work week. New York requires $30.03 per hour and a 115-hour work week. For perspective, the federal minimum wage is $7.25 per hour, and only a handful of states have laws that require higher.
Now of course, not everywhere in states like New York does one have to earn that much and work that long to afford a place to rent. To that end, the interactive map allows the user to zero-in on many zip codes within a state to get more customized data.
When you cover landlord-tenant law, this is a really great tool to use in class. This, used in conjunction with the Urban Institute's mortgage origination map, can help students see the real world effects of our housing economy--who gets what kind of tenure and what they pay for it. Have a great week!
Friday, June 29, 2018
For all the real estate finance nerds out there (me!), there's a great new book out from Palgrave called Land and Credit: Mortgages in the Medieval and Early Modern European Countryside, edited by Chris Briggs & Jaco Zuiderduijn. It's a really interesting historical read that I highly recommend. Take a look at this chapter and abstract, posted to SSRN by its author David Waddilove (Harvard Project on the Foundation of Private Law), titled Why the Equity of Redemption?:
The ‘equity of redemption’ is an equitable doctrine undergirding the law of secured lending in the common-law world. It holds that despite any legal forms to the contrary, a borrower remains the true owner of pledged/mortgaged property, with a right to redeem such property upon payment of principal, interests, and costs at any time until a court of equity forecloses a borrower’s interest. This doctrine originated in the English Court of Chancery in the early-modern period, and coincided with a significant expansion in the use of mortgages.
This chapter explores why the equity of redemption arose. It does so by situating the doctrine in the social context of its origin in early modern England. It shows that several traditional explanations for the doctrine, such as the Chancery offering programmatic support for the landed classes, or seeking to capture jurisdiction and increased business and fees from the common-law courts, or intentionally providing a counterweight to the weak bargaining power of mortgagors, are likely misunderstandings. Instead, primary sources suggest that the doctrine is best understood as judicial enforcement of social norms related to mortgage debts in preference to legal technicalities; the equity of redemption was enforcement of “real-world” expectations over legal rights. Why the equity of redemption arose is therefore because it was the most obviously “fair” or intuitively “reasonable” way to address mortgage forfeiture at the time. The equity of redemption was the layman’s response to mortgage forfeiture rather than the lawyer’s.
Monday, June 25, 2018
The one and only Tanya Marsh (Wake Forest) has launched a much-anticipated podcast on the law of all things death-related.
The title of the podcast is Death, et seq. The current plan is to have stand alone episodes that examine a particular issue, as well as interviews with interesting people involved in death care. You can visit the website at www.deathetseq.com for links to the episodes, ways to subscribe on iTunes, Stitcher, and Google Play, and for show notes.
Sunday, June 24, 2018
Donald Kochan (Chapman) has posted Pride & Property: An Interdisciplinary Analysis of Their Symbiotic Relationship (USC Interdisciplinary Law Journal) on SSRN. Here's the abstract:
Pride and property are mutually reinforcing, symbiotic forces through which individuals express their identity in a biologically, economically, and psychologically driven manner that generates evolutionary advantages. This Article is the first to examine the correlative components of pride and property ownership, along with the legal implications that follow from their symbiotic relationship. It is an interdisciplinary treatment of pride and property—engaging law, economics, psychology, evolutionary biology, evolutionary psychology, and philosophy. The grossly under-studied “authentic,” achievement-oriented, and motivational variety of pride (as contrasted with the much-vilified “hubristic” kind) is recently heralded as perhaps the most important human emotion for evolutionary purposes. The Article explains that authentic pride is adaptive, functional, and manifests itself in evolutionarily beneficial ways—including through its interaction with property. The Article also outlines the mechanics of a pride based-utility function.
Property has acquisitional and expressive functions, allowing ownership to be both the repository of pride-based utility and also useful as a vehicle through which evolutionarily-beneficial authentic pride can be expressed. Property can act as a “pride display” that signals status-deservedness to the greater community, enhancing the prospects of group acceptance critical to evolutionary fitness. Although literature has discussed property as integrated with one’s self-identity and personhood, and while recent research on pride has recognized its fundamental relationship to the self, very little analysis ties those strands together to analyze pride in propertyas identity development and to evaluate the motivational role pride plays in the acquisition, maintenance, and improvement of property. This Article seeks to fill that void. It explores ways we might maximize the influence of the utility-enhancing aspects of the pride emotion and examines how we can find new appreciation for the role that identity and our emotions play in how we experience, manage, govern, and protect property.
Friday, June 22, 2018
Yesterday, SCOTUS decided the much anticipated case of South Dakota v. Wayfair et al. Although this is primarily viewed as a state tax/constituitonal law dispute, it actually has some significant property law aspects to it. The fight was over the ability of South Dakota (and really, any state) to impose an obligation on out-of-state companies to collect and remit sales taxes on sales that are conducted with in-state consumers but when (and here's the kicker) the out-of-state company has no "physical presence" in the taxing state. The issue is actually quite significant. By some estimates, states lose somewhere between $8 and $33 billion per year in uncollected sales taxes from online transactions. It's actually not a matter of states not being able to tax these transactions. Indeed, they most certainly have the authority to tax online sales--or at least to collect use taxes from buyers who do not otherwise pay sales tax when they make an online purchase. The problem is forcing out of state companies to collect and remit the sales tax (recognizing that most people are noncompliant in paying their use taxes).
The obstacle for states has been two SCOTUS decisions - National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967) and Quill Corp. v. North Dakota, 504 U. S. 298 (1992). In those cases (particularly Quill), the Supreme Court held that a state cannot impose an obligation on out of state companies to collect and remit sales taxes for transactions with residents of the state if the company lacks a physical presence in that jurisdiction. What this means is that even a very large company (think Overstock.com, Amazon, etc.) that does substantial business in a given state, but has no physical location or employees in that state, does not have to collect sales taxes for transactions with in-state residents. On the other hand, a small business with one employee and thin margins must collect and remit the sales taxes for those same transactions. Many have decried the market distortion that Quill and Bellas Hess have created--essentially a tax shelter for certain online retailers.
But yesterday SCOTUS overruled the physical presence rule of these older cases (much to the delight of states, including my own which is currently facing a major budget shortfall due to a lack of revenue). The case is worth reading for a number of reasons--particularly the dissent by Chief Justice Roberts, joined by Justices Breyer, Kagan, and Sotomayor (an interesting read about administrability, stare decis, and the proper role of the courts v. Congress). However, what I think you'll be interested in reading is the following passage from Justice Kennedy's majority opinion:
Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill. In a footnote, Quill rejected the argument that “title to ‘a few floppy diskettes’ present in a State” was sufficient to constitute a “substantial nexus,” id., at 315, n. 8. But it is not clear why a single employee or a single warehouse should create a substantial nexus while “physical” aspects of pervasive modern technology should not. For example, a company with a website accessible in South Dakota may be said to have a physical presence in the State via the customers’ computers. A website may leave cookies saved to the customers’ hard drives, or cus tomers may download the company’s app onto their phones. Or a company may lease data storage that is per manently, or even occasionally, located in South Dakota.
I think it's noteworthy that while the Court rejected the physicality test, it still hems to the physicality notion of property. Data, to be sure, is intangible--it has no physical body. Yet, the Court seems determined (albeit indirectly) to apply some level of physicality to data--or at least to adopt proxies for physicality. Why is this so? I'll be thinking about this more over the coming months, but I surmise it's because so much of our law uses property as a base. We say something is property, and thus is owned by someone, and then we use that concept as a socket to plug in lots of other areas of law (IP, secured finance, privacy, constitutional law, tax, etc.). But when we talk about data, we haven't completely made the leap to "data as property" quite yet. I think, however, we're trying to get there and this language in Wayfair is representative of our desire to do so. If data is property then it has to be owned by someone (or someones). That might mean that data cannot be as free-flowing as it seems to be now, which in turn might result in more limited or slower innovation, since making data property could drive up transaction costs. After all, if we say data is property then we might want to better formalize instances in which we give it away (see the Cambridge Analytica and Facebook scandal). We might also be less likely to want our law to respect sweeping licensing agreements that we click-through and give our data away even before it's created.
More to come! Feel free to share your thoughts in the comments below or shoot me an email. Have a great weekend!
Friends, I spoke too soon! Just yesterday the Court decided Carpenter v. United States. Again, this case doesn't have much to do with property law (at least not facially). It was about whether there was an unlawful search under the Fourth Amendment when the government obtained cell phone location records from a mobile phone company and, in doing so, arrested multiple individuals for several robberies. On the one hand, one could argue that the actual records themselves (the data) were the property of the cell phone companies. Indeed, the customer agreements with the consumers provided that the company could collect cell phone location data generated from cell sites near where a person makes a call, sends an email, fires off a text message etc. But, such a view of the data as being the property of the company and not the property of the customer was not shared by the majority. Instead, the majority opinion held that this was still a search (and although they didn't say this, what is implied is that this is the case despite whatever the customer agreement might have said). Take a read:
The Government’s position [that this is not a search] fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today. . .
Cell phone location information is not truly “shared” as one normally understands the term. In the first place, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society.
As a result, in no meaningful sense does the user voluntarily “assume the risk” of turning over a comprehensive dossier of his physical movements.
The majority is basically saying that even though the agreement between the cell phone provider and the customer says that the information collected about user location belongs to the provider, this doesn't necessarily mean that the customer has no privacy interest in that information. Because this kind of data is so pervasive and so insistent in everyday life, we can't just treat it as someone else's property for Fourth Amendment purposes.
Now, Justice Kennedy (in his dissent) didn't like this at all because he said the Court was wrongly moving away from the property-based approach to the Fourth Amendment. He stated that the defendants could "'assert neither ownership nor possession' of the records because the records were created, owned, and controlled by the companies. . . The businesses were not bailees or custodians of the records, with a duty to hold the records for the defendants’ use." He argues quite simply that “This case should be resolved by interpreting accepted property principles as the baseline for reasonable expectations of privacy."
Justices Alito and Thomas generally agree with this so-called more property-based approach. Thomas wrote:
By obtaining the cell-site records of MetroPCS and Sprint, the Government did not search Carpenter’s property. He did not create the records, he does not maintain them, he cannot control them, and he cannot destroy them. Neither the terms of his contracts nor any provision of law makes the records his. The records belong to MetroPCS and Sprint.
Alito follows up in stating that:
By allowing Carpenter to object to the search of a third party’s property, the Court threatens to revolutionize a second and independent line of Fourth Amendment doctrine. . . . The Fourth Amendment does not confer rights with respect to the persons, houses, papers, and effects of others. . . the cell-site records obtained by the Government belong to Carpenter’s cell service providers, not to Carpenter.
So the basic divide between the majority and these three dissents is that if you take a traditional property approach then there was no search and if you move away from a property approach then there is a search. But the most fascinating part of the case, I think, is the final dissent by Justice Gorsuch. He says that in taking a property approach you could easily conclude that there was a search. How is this so? Take a read:
Just because you entrust your data—in some cases, your modern-day papers and effects—to a third party may not mean you lose any Fourth Amendment interest in its contents. . .
I doubt that complete ownership or exclusive control of property is always a necessary condition to the assertion of a Fourth Amendment right. Where houses are concerned, for example, individuals can enjoy Fourth Amendment protection without fee simple title. Both the text of the Amendment and the common law rule support that conclusion. . . .use of technology is functionally compelled by the demands of modern life, and in that way the fact that we store data with third parties may amount to a sort of involuntary bailment too.
And here's the best part:
It seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.
Plainly, customers have substantial legal interests in this information, including at least some right to include, exclude, and control its use. Those interests might even rise to the level of a property right.
So what is Justice Gorusch saying? I think what he means is that property law is not so monolithic as his colleagues suggest. In other words, it's not simply what's yours is yours and what's mine is mine. Property is a bundle of sticks! (you knew I had to throw that in, right?). We've never really considered property to be monolithic when dealing with traditional assets (i.e., tangibles) and so why do we have to do so with data (non-rivalrous intangibles)? True, he doesn't come up with a big theory of data as property, but he does suggest there's room to figure that out--you don't have to jettison property law in order to deal with data/digital information.
In this way, the thinking of the majority that people have an interest in data (regardless of contract law) and the thinking of Gorsuch (the notion of property law being contextualized and nuanced when it comes to data) are quite reconcilable.
Thursday, June 21, 2018
Today, the Trump administration released a report entitled Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendations. The report is the result of executive order 13781 (titled “Comprehensive Plan for Reorganizing the Executive Branch"), which called for a study on how the executive branch is structured. This report provides the administration's recommendations for a structural realignment of various portions of the executive branch. The report notes that while some changes can be accomplished through executive order, a number of others must come from legislative action.
For the property law folks, I thought you might be interested in what the report says about the administration's plans for Fannie Mae and Freddie Mac, the giants of the secondary mortgage market, and the various mortgage insurance programs (like FHA, VA, etc). Here are some of the more salient portions of the document (underlining provided by me):
This proposal would reorganize the way the Federal Government delivers mortgage assistance and go beyond restructuring Federal agencies and programs by transitioning Fannie Mae and Freddie Mac to fully private entities. Competition to the duopolistic role played by the two privately-owned GSEs would be an essential element of reform to decrease moral hazard and risk to the taxpayer. Both Fannie Mae and Freddie Mac, as well as other competitive entrants, would have access to an explicit Federal guarantee for mortgage-backed securities (MBS) that they issue that is only exposed in limited, exigent circumstances. Such a guarantee would be on-budget and fully paid-for. This would also ensure that the Government’s role is more transparent and accountable to taxpayers, minimize the risk of taxpayer-funded bailouts, and ensure that mortgage credit continues to be available in times of market stress for creditworthy borrowers.
WHAT WE’RE PROPOSING AND WHY IT’S THE RIGHT THING TO DO
Under the current system, Fannie Mae and Freddie Mac, two privately-owned GSEs, buy and guarantee mortgages from lenders and sell them to investors as MBS. Although they are private companies, they are congressionally chartered, a unique status that has been viewed as conveying an implicit Federal backstop that has in turn lowered their cost of capital relative to similarly-sized institutions. . . In their Federal charters and by action of their primary regulator, the Federal Housing Finance Agency (FHFA), Fannie Mae and Freddie Mac have goals of providing a certain amount of financing to low- and moderate-income borrowers. However, these affordable housing activities are not clearly accounted for on the Federal balance sheet.
In addition to the GSEs, other Federal programs provide mortgage support, contributing to a large Federal footprint in the housing market. The Department of Housing and Urban Development (HUD) Federal Housing Administration (FHA) provides mortgage insurance intended to aid borrowers traditionally underserved by the conventional mortgage market, including lower-wealth households, minorities, and first-time homebuyers. The Departments of Veterans Affairs (VA) and Agriculture (USDA) also administer mortgage insurance programs targeted to veterans and lower-income rural households, respectively. The loans guaranteed by FHA, VA, and USDA are in turn packaged into MBS that are guaranteed by Ginnie Mae, a Federal entity operated by HUD. Together, loans backed by the GSEs and Ginnie Mae comprised about 70 percent of mortgages originated in 2017.
. . . This reorganization proposal, which includes broad policy and legislative reforms beyond restructuring Federal agencies and programs, would:
Increase competition. The proposal would remove the Federal charter from statute and fully privatize the GSEs. A Federal entity with secondary mortgage market experience would be charged with regulatory oversight of the fully privatized GSEs, have the authority to approve guarantors, and develop a regulatory environment that is conducive to developing competition amongst new private guarantors and the incumbent GSEs, ensuring they would all be adequately capitalized and competing on a level playing field. If the GSEs lost some of the benefits that have led them to dominate the market, this would enable other private companies to begin competing in this space. The regulator would also ensure fair access to the secondary market for all market participants, including community financial institutions and small lenders.
Increase transparency and accountability. Under this proposal, which would also involve entities outside the Executive Branch of the Federal Government, guarantors would have access to an explicit guarantee on the MBS that they issue that is only exposed in limited, exigent circumstances. Taxpayers would be protected by virtue of the capital requirements imposed on the guarantors, maintenance of responsible loan underwriting standards, and other protections deemed appropriate by their primary regulator. The regulator would set fees to create an insurance fund designed to take effect only after substantial losses are incurred by the private market, including the guarantors, in order to ensure the continued availability of mortgage financing through shifting economic cycles. The projected cost of this guarantee and other fees charged would be on-budget and accountable, resulting in reduced implicit taxpayer exposure.
- Align incentives and reduce overlap. Under this reform proposal, which would also require legislative and policy changes affecting the mandates of entities that are not part of the United States Government, the GSEs would focus on secondary market liquidity for mortgage loans to qualified borrowers, while HUD would assume primary responsibility for affordable housing objectives by providing support to low- and moderate-income families that cannot be fulfilled through traditional underwriting and other housing assistance grants and subsidies. To effectuate this, the newly fully-privatized GSEs would have mandates focused on defining the appropriate lending markets served in order to level the playing field with the private sector and avoid unnecessary cross-subsidization. A separate fee on the outstanding volume of the MBS issued by guarantors would be used specifically for affordable housing purposes, and would be transferred through congressional appropriations to, and administered by, HUD.
- Provide more targeted assistance to those in need. The proposal would be designed so that the affordable housing fees transferred to HUD would enable FHA to provide more targeted subsidies to low- and moderate-income homebuyers while maintaining responsible and sustainable support for homeownership and wealth-building. Some of the fees could potentially be used to support affordable multifamily housing or other HUD activities. All of this support would be on-budget and accountable.
Part of this is interesting because although Fannie and Freddie would be privatized, they would still be government regulated. Would this "federal entity with secondary mortgage market experience" be the FHFA (the current HUD-related conservator of Fannie and Freddie) or a new agency? It also appears that the goal would be to bring new guarantors (of MBSs) into the marketplace to compete with the GSEs. The report envisions more private entities issuing MBSs, all with some kind of "limited" government guarantee. The taxpayer is going to be protected, so argues the report, by making these guarantors adhere to capital requirements, among other regulations. Of course, the devil is in the details. Banks have capital requirements, but they were swept up into the subprime mortgage crisis. Indeed, they are still playing in the subprime mortgage loan business through their warehouse loan funding of shadow bank lenders like Exeter Finance and others. Does this plan really ensure that "taxpayers would be protected?" The report says that the regulator can impose other appropriate rules, but it's not clear that adding more firms to the secondary marketplace where they all enjoy some form of government guarantee is superior to the existing situation of having merely two.
With respect to the realignment of incentives, it's not clear to me what "qualified borrowers" constitute in terms of how the adminstration views the role of the new and improved GSEs, versus HUD's "responsibility for affordable housing objectives by providing support to low- and moderate-income families." How will these things be different? In other words, what will animate the "qualifications" for GSE borrowers if not some kind of over-arching demographic target? Will it just be traditional credit-worthiness and risk-driven underwriting?
Lastly, with respect to the idea of providing more "targeted assistance to those in need," I would like to see more details on what those programs would look like. The report says that fees charged on GSE outstanding MBS volumes would be transferred to HUD and that the FHA could use these fees to help subsidize low- and moderate-income homebuyers. But, what does this mean? To help the FHA expand its insurance/guarantee program? Also, does multifamily housing mean an expansion of the existing HUD-backed programs or new programs? This last bullet point feels less development.
As David Reiss has noted on his blog, GSE reform has been brewing in Congress for awhile now (to no avail). We'll see where this goes as well.
Wednesday, June 20, 2018
The Housing Finance Policy Center at the Urban Institute has once again created an incredibly cool tool for understanding the housing market - both where we've been and where we're going. Check out this interactive map showing the housing market's boom and bust over time with mortgage origination data from 2001 through 2017.
And here's a map of the US showing mortgage originations for just the year 2017.