Monday, July 2, 2018

The High Cost of Rental Housing in 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!

July 2, 2018 | Permalink | Comments (0)

Friday, June 29, 2018

SUMMER READING: Land, Money, and Mortgages

Land-creditFor 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.

June 29, 2018 | Permalink | Comments (0)

Monday, June 25, 2018

Tanya Marsh Lanches The Podcast We've All Been Waiting For: DEATH ET. SEQ.

DeathThe 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 for links to the episodes, ways to subscribe on iTunes, Stitcher, and Google Play, and for show notes.

As you may know, Tanya teaches a class at the Wake Forest School of Law each semester called "Funeral and Cemetery Law." She begins the podcast the same way she begins each class--by discussing a series of real life cases.  Her 17 year old son Liam Sherman plays the role of the student in the podcast, sharing his initial impressions (he does a superb job!).  You can find the episode here.
Episode 3 is an interview with Dan Isard, who is a management and financial consultant to the funeral industry. Dan has been advising funeral homes for 25 years, so Tanya talked to him in order to lay the foundation of what the industry is, the challenges it faces, and where it's headed.  You can find the episode here.
Episode 4 is an interview with Caitlin Doughty, a friend of Tanya's who is a licensed funeral director in California. Caitlin is also the NY Times best selling author of two books, and she is the founder of the Death Positive Movement.  You can find the episode here.
Podcast episodes will be posted on a weekly basis. Go download one and listen in today! Great work, Tanya!

June 25, 2018 | Permalink | Comments (0)

Sunday, June 24, 2018

Kochan on Pride and Property

Kochan_DDonald 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.

June 24, 2018 in Recent Scholarship | Permalink | Comments (0)

Friday, June 22, 2018

Data as Property at the Supreme Court (UPDATED)

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, 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. 

Comment away!



June 22, 2018 | Permalink | Comments (0)

Thursday, June 21, 2018

Trump's New Plan for Reorganizing the Government's Role in the Residential Mortgage Market

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Today, the Trump administration released a report entitled Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization RecommendationsThe 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.


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. 

June 21, 2018 | Permalink | Comments (0)

Wednesday, June 20, 2018

New Interactive Mortgage Map @UrbanInstitute

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.

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And here's a map of the US showing mortgage originations for just the year 2017.

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June 20, 2018 | Permalink | Comments (0)

Monday, June 18, 2018

Yuille on Dignity Takings, Nuisance Actions, and the National Gang Strategy

YuilleLua K. Yuille (Kansas) has posted Dignity Takings in Gangland's Suburban Frontier (Chicago-Kent Law Review) on SSRN. Here's the abstract:


This paper engages the evolving dignity takings framework, first developed by Bernadette Atuahene, in the context of contemporary American street gangs (e.g. Crips, Bloods, Latin Kings, etc.). Contrary to most popular accounts, it starts with a re-imagined and complicated notion of street gangs that emphasizes not their secondary or tertiary violence and criminality but their primary function as corporate institutions engaged in the sustained, transgressive creation of alternative markets for the creation of the types of property interests that scholars have associated with the development and pursuit of identity and “person-hood.” From this perspective, the paper applies the dignity takings analysis to public nuisance abatement actions (commonly known as gang injunctions), which have become standard tools in the national gang strategy. These civil mechanisms enjoin the conduct and activities of the gangs, as unincorporated entities, and prohibit named individuals (including but not limited to known and suspected gang members) from engaging in a panoply of otherwise legal activities: displaying gang symbols, wearing clothing or colors associated with a gang, possessing tools or objects capable of defacing real or personal property (e.g. pens), appearing in public view with a known gang member. Through qualitative analyses of interviews, court documents, and political hearings, the paper identifies a special form of dehumanization and infantilization that it refers to as "adultization," which demonstrates that the dispossession of identity property associated with suburban gang injunctions depresses self-esteem, erodes self-confidence, damages identity and feelings of community worth, and dehumanizes enjoined individuals in a way that deprives them of their fundamental right of dignity, constituting a clear example of a dignity taking.

June 18, 2018 in Recent Scholarship | Permalink | Comments (0)

Owley and Phelps on Preservation Law and Civil War Monuments

Jessica Owley (Buffalo) and Jess R. Phelps (Dinse, Knapp, & McAndrew) have posted Understanding the Complicated Landscape of Civil War Monuments (Indiana Law Journal Supp.) on SSRN. Here's the abstract:


This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial introduction of a typology for evaluating confederate monuments, serving as a foundation for an exploration into the nature of property law and monument protection.

June 18, 2018 in Recent Scholarship | Permalink | Comments (0)

Sunday, June 10, 2018

The CFPB's Complaint Database and Property Problems

Acting director of the Consumer Financial Protection Bureau (CFPB) Mick Mulvaney has been in the news quite a bit lately. He recently dismissed all 25 members of the agency’s Consumer Advisory Board (a stakeholder group required by the Dodd-Frank Act), and he has also been telling groups and members of Congress that he will likely close the CFPB’s consumer complaint database to the public:

"I don’t see anything in [the law] that says I have to run a Yelp for financial services sponsored by the federal government,” [Mulvaney] said at a banking industry conference in Washington. “I don’t see anything in here that says that I have to make all of those public."

This is truly unfortunate news. The database (which is scrubbed of consumer-identifying information) has been hugely helpful to academics (like me!), consumers, businesses, and policy makers. I recently joined a number of consumer finance law professors in providing comments to the CFPB on why, among other things, the public nature of the complaint database is important and should be maintained.

One of the reasons we argue that the database should remain public has to do with how it serves as a source (and sometimes the only source) of information for consumers in deciding whether to do business with certain firms. This is particularly true when a financial service business doesn't have an established operating history with lots of publicly available information. It's also useful for getting information about financial firms that lack a comprehensive regulator where consumer review and complaint information can be obtained or requested.

For us property folks, consider mortgage lending. Mortgage lending was long dominated by regulated financial institutions, such as banks, thrifts, and credit unions. But in today’s market, nonbank financial companies are the major players. The firm that originates the most mortgage loans in the United States is currently Quicken Loans—a Detroit-based, nonbank company that started making online mortgage loans around the late 1990s.


(Source: Home Mortgage Disclosure Act Data 2008-2017 using Lender ID 7197000003-7 and filtering for "all originated mortgages")

The CFPB’s database gives consumers a place to learn about how people are interacting with Quicken and other online firms that lack brick-and-mortar storefronts. The entries include not only the product type and the issue/problem that the consumer encountered, but also important information about whether the firm responded to the complaint and how it was ultimately resolved. The complaints are also broken down by location and date, thereby allowing a more nuanced analysis of the data for researchers. More information, one hopes, leads to consumers making better and more informed decisions about obtaining a home loan.

(Source: CFPB Complaint Database using Quicken Loans, Inc. and filtering for Product/Sub-product: Mortgages)

And lastly, many of the complaint entries include narratives. Individuals have the option of telling their story when they submit a complaint to the CFPB. These real life stories provide perhaps one of the only venues where the lived experiences behind the complaint numbers are revealed to the public. A few mortgage-related narratives aimed at Quicken Loans so far from 2018 include:

Consumer Complaint No. 2858565 (2018)
XX/XX/XXXX - I applied for a home mortgage with Quicken Loan website and a banker contacted me to ask for all confidential information ( income, debt, credit report, assets, etc ). XX/XX/XXXX - Quicken Loan requested my current credit report. XX/XX/XXXX - Quicken Loan contacted me via online email saying my debt to income ratio can not qualify for mortgage with them. I totally understand the reason and rejection. XX/XX/XXXX - Another Quicken Loan banker " XXXX XXXX '' blind called me that she can help me get the mortgage approved this time and ask me again a lot of information. As she walk through the term and rate and cost, she kept emphasizing the call is recorded and ask for my agreement to do business with Quicken Loan ; she requested {$500.00} deposit using credit card. I disagree with the urgency because I do not have rights to compare bank interest rate offer and terms with others at the moment. I simply ask her to provide me everything on record, such as email, paper mail, etc. She refused and pretend never heard. The worst part is she kept asking me for the agreement to do business with Quicken Loan and ask for credit card for deposit {$500.00}. I deeply concerned about my personal information may be misused by Quicken Loan. Please please investigate this company 's mortgage practice. I believe they are attempting to take advantage of home buyers who is in tight schedule to secure a mortgage for closing. Thank you. The call on XX/XX/XXXX is between XXXX - XXXX EST from number XXXX.

Consumer Complaint No. 2851684 (2018)
After Hurricane Irma left us with property damage I called Quicken Loans to place the mortgage in forbearance. They walked me through the process of how an adjustment would work and applied the forbearance. I've had monthly phone calls where they've checked in and they've asked me each time if it was my primary residence and if it was occupied and each time I've told them it is not my primary residence, but it does have a tenant who is renting from us. This month when the time came to adjust the mortgage they've told me that they can't adjust it because it's a second home so I now have a {$7000.00} balance due, or {$510.00} a month for 12 months ( they adjusted from 6 months to 12 ). I can not afford an extra {$510.00} a month, I don't have that money sitting in my checking account. Quicken 's response is just " sorry we made a mistake, you need to pay for it ''. I've done the right thing in trying to repay the loan on a property that is upside down when everyone else foreclosed or short selled, now my credit and life is ruined. They are engineered to " amaze '', but not in the way their marketing department wants them to be.

Consumer Complaint No. 2829194 (2018)
Around XX/XX/18 I applied for a fha mortgage through quicken loans. After uploading paystubs and a2 's and having a phone conversation with a XXXX XXXX i was given a pre approval. I was then asked to write a letter of explanation as to what happened to the house that it's listed in my bankruptcy case. It was explained that the house was foreclosed. At no point did anyone from quicken loans ask when it was foreclosed. After I found a house, signed a contract to purchased the house, paid {$300.00} for a inspection and gave quicken loans {$500.00} to be used for appraisal was i then told two days later on XX/XX/18 that I was denied because my foreclosure was not three years old. I was told no appraisal had been ordered so i would be getting my money refunded. On that same day XX/XX/XXXX a appraisal was done on the property. At this point I am out {$800.00} for a mortgage that I never should have been pre approved for. They knew I was applying for a fha mortgage, they knew I had a foreclosure and they knew the waiting period for a fha mortgage after foreclosure is three years, yet they didn't ask when the foreclosure took place.

Now of course, these data can tell many different stories. Sometimes the company (like Quicken) did nothing wrong. At other times, consumers have clearly gotten unfairly lost in the lender's corporate bureaucracy. And still at other times it's hard to tell where the break-down happened. It’s up to researchers, industry, advocates, and consumers to interpret the data so that they are useful and help us build a stronger way for Americans to access homeownership online.

But one thing is for sure—closing the complaint database to the public prevents these stories from ever being told. And that serves no one. As of today, the database is still available to the public. We'll see if Mr. Mulvaney follows-through on his threat.

June 10, 2018 | Permalink | Comments (0)

Saturday, May 19, 2018

Walsh and O'Mahony on Property Law Ideologies in England and Ireland

Rachael Walsh (Trinity College) and Lorna Fox O'Mahony (Essex) have posted Land Law, Property Ideologies and the British-Irish Relationship (Common Law World Review) online. Here's the abstract:

This article examines the role of property ideologies, and the local contexts in which they were articulated and applied, in shaping English and Irish land law. Despite their shared histories and influences – from the transplant of the common law system to Ireland to traditions of training Irish lawyers and judges in English universities – the politics of property led Irish and English land law down distinct, and sometimes oppositional, ideological paths in the twentieth century. The politics and practices of land tenure, competing economic and property ideologies, and their direct links to the evolution of national identity and statehood in each jurisdiction, shaped the foundational commitments of English and Irish land law. The article traces the complexities of lived experience in regulating the use and ownership of land, as well as the role of global and local forces – from world-system movements (for example, the influence of European political developments in 1937 on the Irish Constitution) or bi-lateral relationships (for example, the impact of the Irish land wars on the English land reform movement, or the ongoing trade dependency between Britain and Ireland into the twentieth century). Our analysis reveals the multiple competing, and at times overlapping, property ideologies that shape property systems; and the powerful role of events and externalities in contextualising the practical, political, social and symbolic meaning and content of the law as it has evolved in local contexts, and in determining whether, and when, the status quo prevails, or a tipping point for law reform is reached.


May 19, 2018 | Permalink | Comments (0)

Friday, May 18, 2018

NEW BOOK: Insecurity and the Home

Law-homeFor your summer reading, check out this edited book by Helen Carr (Kent), Brendan Edgeworth (New South Wales), and Carolina Hunter (York) titled Law and the Precarious Home: Socio Legal Perspectives on the Home in Insecure Times (Hart Publishing). Here's a summary: 

This book explores the emergent and internationally widespread phenomenon of precariousness, specifically in relation to the home. It maps the complex reality of the insecure home by examining the many ways in which precariousness is manifested in legal and social change across a number of otherwise very different jurisdictions. By applying innovative work done by socio-legal scholars in other fields such as labour law and welfare law to the home, Law and the Precarious Home offers a broader theoretical understanding of contemporary 'precarisation' of law and society. It will enable reflections upon differential experience of home dependent upon class, race and gender from a range of local, national and cross-national perspectives. Finally it will explore the pluralisation of ideas of home in subjective experience, social reality and legal form. The answers offered in this book reflect the expertise and standing of the assembled authors who are international leaders in their field, with decades of first-hand practical and intellectual engagement with the area.

The table of contents is as follows:

1. Introducing Precarisation: Contemporary Understandings of Law and the Insecure Home
Helen Carr, Brendan Edgeworth and Caroline Hunter

Part I: Understanding Precarisation
2. Precarious Homes: The Sharing Continuum
Sarah Blandy
3. Property, Well-being, and Home: Positive Psychology and Property Law's Foundations
Nestor M Davidson

Part II: Rental Security
4. The 'Affordable Alternative to Renting': Property Guardians and Legal Dimensions of Housing Precariousness
Caroline Hunter and Jed Meers
5. Public Housing Insecurity in New South Wales: An Historical Overview (1971–2014)
Brendan Edgeworth
6. The Tenant's Home and the Landlord's Property-The Polish Struggle to Achieve a Balance of Rights
Magdalena Habdas

Part III: The Home and Governmental Precarisation
7. Law and the Precarious Home: A Case Study of Thermal Inefficiency in English Homes
Helen Carr
8. Governing Risk and Uncertainty: Financialisation and the Regulatory Framework of Housing Associations
Richard Goulding
9. Safe and Sound: Precariousness, Compartmentation and Death at Home
Edward Kirton-Darling

Part IV: Global/Local Precariousness
10. The UK as a Precarious Home
Richard Warren
11. Precarious Home and Institutional Ambiguity in China's Urbanisation
Ting Xu and Wei Gong
12. On Shaky Ground: Homes as Socio-Legal Spaces in a Post-Earthquake Environment
Ann Dupuis, Suzanne Vallance and David Thorns

Part V: Resistance and Strategies
13. Precarity and Defi ance in Temporary Accommodation: The King Hill Hostel Campaign, 1965–66
Laura Binger
14. Responding to the Precarisation of Housing: A Case Study of PAH Barcelona
Gabriele D'Adda, Lucia Delgado and Eduard Sala
15. Returning Home?
Danie Brand

May 18, 2018 | Permalink | Comments (0)

Monday, May 14, 2018

CFP: Law and Communities Conference @Bar Ilan University Law


We are delighted to announce that, on Sunday 3 and Monday 4 June 2018, the Bar Ilan University law school and the Center for Jewish and Democratic law will be hosting an international conference titled “Communities & the Law”. The conference will bring together scholars from all branches of law, including private law, constitutional law, local government law and technology to discuss the role of communities in the legal, economic and political spheres.   

A series of panels on both conference’s days will include the role of communities in private law (focusing on property law and contracts law); local governments as the law of communities, communities in a multicultural world; Technology, Communities & Cooperation, and feminist approaches to communities. 

Confirmed speakers and panelists include; Prof Yochai Benkler (Harvard Law School); Prof Gregory Alexander (Cornell University Law School); Prof Hanoch Dagan (Tel Aviv University Law School); Prof. Richard Briffault (Columbia Law School); Prof. Bernadette Atuahene (Chicago-Kent College of law); Prof. Yishai Blank (Tel Aviv University), Prof. Chandran Kukatas (LSE), Prof. Aditi Bagchi (Fordham University); Prof. Amnon Lehavi (IDC Herzliya); Prof. Nadav Shoked (Northwestern University); Prof. Menachem Mautner (Tel Aviv University), Prof. Yuli Tamir (Shenkar College), Prof. Shahar Lifshitz (Bar-Ilan University), Prof. Ruth Halperin Kaddari (Bar Ilan University), Prof. Jay R. Berkovitz (University of Massachusetts); Dr. Shai Stern (Bar Ilan University), Prof. Amihai Radzyner (Bar-Ilan University);  Dr. Shelly Kreiczer Levy (College of Law & Business); Dr. Rivka Brot (Bar-Ilan University); Dr. Yotam Kaplan (Bar-Ilan University); Prof. Haim Shapira (Bar-Ilan University).

The full program of the conference is available here.

Please direct all further enquiries to the conference organizer, Dr. Shai Stern, Bar Ilan University.

May 14, 2018 in Conferences | Permalink | Comments (0)

Tuesday, May 8, 2018

Save the Date: 2019 International Conference on Planning, Law, and Property Rights

This just in from Tim Mulvaney (Texas A&M):


For more info, click here.

May 8, 2018 | Permalink | Comments (0)

Monday, May 7, 2018

Call for Papers: AALS Real Estate Transactions Section 2019 Program


It's that time of year: AALS Call for Papers season! Here's the CFP from the Real Estate Transactions Section:

Access + Opportunity + Choice:
Housing Capital, Equity, and Market Regulation
in the Trump Era

Program Description:

The year 2018 marks the 10th anniversary of the 2008 housing crisis—an event described as the most significant financial and economic upheaval since the Great Depression. This year is also the 50th anniversary of the Fair Housing Act, which upended many decades of overt housing discrimination. Both events remind us of the significant role that housing has played in the American story—both for good and for bad.

Of the many aspects of financial reform that followed 2008, much of the housing finance-related work was centered around mortgage loan origination and creating incentives and rules dealing with underwriting and the risk of moral hazard. Some of these reforms include the creation of the qualified mortgage safe-harbor and the skin-in-the-game risk retention rules. But when it came to the secondary mortgage market, little significant reform was undertaken. The only government action of any serious importance related to the federal government—through the Federal Housing Finance Agency (FHFA)—taking over control of Fannie Mae and Freddie Mac. This major government intervention into the workings of the country’s two mortgage giants yielded takings lawsuits, an outcry from shareholders, and the decimation of the capital reserves of both companies. Despite Fannie and Freddie having both paid back all the bailout funds given to them, the conservatorship remains in place to this day.

In the area of fair housing, the past several years saw the Texas Department of Housing and Community Affairs v. Inclusive Communities case whereby the U.S. Supreme Court upheld (and narrowed the scope of) the disparate impact theory under the Fair Housing Act. We also saw efforts aimed at reducing geographic concentrations of affordable housing through the Obama administration’s promulgation of the affirmatively furthering fair housing rule.

Yet, meaningful housing reform remains elusive. None of the major candidates in the most recent presidential election meaningfully addressed the issue in their policy platforms, and a lack of movement in resolving the Fannie/Freddie conservatorship is viewed as a major failure of the Obama administration. Additionally, housing segregation and access to affordable mortgage credit continues to plague the American economy.

In recent months, the topics of housing finance reform and providing Americans with credit (including mortgage credit) choices have been a point of focus on Capital Hill and in the Trump White House. Will these conservations result in meaningful legislation or changes in regulatory approaches in these areas? Will programs like the low-income-housing tax credit, the CFPB’s mandatory underwriting requirements, public housing subsidies, and the government’s role in guaranteeing and securitizing mortgage loans significantly change? Where are points of possible agreement between the country’s two major parties in this area and what kinds of compromises can be made?

Call for Papers:

The Real Estate Transactions Section looks to explore these and related issues in its 2019 AALS panel program titled: “Access + Opportunity + Choice: Housing Capital, Equity, and Market Regulation in the Trump Era.” The Section invites the submission of abstracts or full papers dealing broadly with issues related to real estate finance, the secondary mortgage market, fair housing, access to mortgage credit, mortgage lending discrimination, and the future of mortgage finance. There is no formal paper requirement associated with participation on the panel, but preference will be given to those submissions that demonstrate novel scholarly insights that have been substantially developed. Untenured scholars in particular are encouraged to submit their work. Please email your submissions to Chris Odinet at by Friday, August 3, 2018. The selection results will be announced in early September 2018. In additional to confirmed speakers, the Section anticipates selecting two to three papers from the call.

Confirmed Speakers:

Rigel C. Oliveri, Isabelle Wade and Paul C. Lyda Professor of Law, University of Missouri School of Law

Todd J. Zywicki, Foundation Professor of Law, George Mason University Antonin Scalia Law School

David Reiss, Professor of Law and Research Director for the Center for Urban Business Entrepreneurship, Brooklyn Law School


Per AALS rules, only full-time faculty members of AALS member law schools are eligible to submit a paper/abstract to Section calls for papers. Faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit.

All panelists, including speakers selected from this Call for Papers, are responsible for paying their own annual meeting registration fee and travel expenses.

May 7, 2018 | Permalink | Comments (0)

Wednesday, May 2, 2018

Franzese on Tenant Blacklisting

PaulaPaula Franzese (Seton Hall) has posted A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity (Fordham Urban Law Journal) on SSRN. Here's the abstract:

Tenants named in an eviction proceeding, no matter the outcome or the context, find themselves placed on registries collected and maintained by private "tenant reporting services." Tenants whose names appear on these so-called "blacklists" are often denied future renting opportunities, stigmatized and excluded from thepromise of fair housing. At a time of continued rollbacks and dramatic cuts to housing voucher programs andaffordable housing options, a candidate named on a dreaded blacklist can find herself on a quick path tohomelessness. That tenant blacklisting has been allowed to persist is emblematic of how powerless many tenants - and particularly public housing tenants - have become. This paper endeavors to give voice to some of the stories of tenants affected by the practice. It then sets forth an agenda for reform.

She is also working with the mayor of Newark on an initiative to provide free legal counsel to certain individuals facing eviction. Paula has written about this effort here and as follows:

Our State's courts have become inundated with eviction actions, as tenants struggle to make ends meet. In Newark alone, tenant evictions affect 30,000 residents annually, destabilizing families and neighborhoods, targeting the most vulnerable and compounding the crisis in homelessness. 

. . . 

Against that bleak landscape, I applaud Newark Mayor Ras Baraka's commitment to bring to fruition a right to counsel for Newark tenants most at risk of eviction - the disabled, the elderly, and those with incomes no more than two times the federal poverty level. The city's initiative will give voice to tenants otherwise silenced by a system that too often is stacked against them. It is a major step on behalf of fundamental fairness and equal access to justice and should serve as a model for State-wide implementation. 

May 2, 2018 | Permalink | Comments (0)

Tuesday, May 1, 2018

Professors' Corner: Current Developments in Title Insurance Law


Tuesday, May 8, 2018
12:30 – 1:30 pm ET
Speakers: Professor Joyce Palomar, University of Oklahoma College of Law and Professor Barlow Burke, American University Washington College of Law
Moderator: Professor Wilson Freyermuth, University of Missouri School of Law
Professors Palomar and Burke are the country’s most authoritative scholars on the law of title insurance. In May’s Professors Corner program, they will discuss recent developments in title insurance law, focusing most significantly on the proposed changes to the ALTA Owner’s Policies and Loan Policies.
Register for This Program
Please note that CLE credit is not offered for this program or any Professors' Corner programs.

May 1, 2018 | Permalink | Comments (0)

Sunday, April 15, 2018

Widener on Leasing Law and Marijuana-Related Businesses

Joint-canFriend of the blog and Phoenix lawyer Michael Newton Widener just published a book titled Joint Tenancies: Property Leasing in Cannabis Commerce with ABA Book Publishing and sponsored by the Section of State and Local Government Law. Cribbing from the abstract:

This book is not legal advice delivered or offered to anyone. Instead, Joint Tenancies seeks to teach readers about issues to take to heart in the Cannabis industry real estate leasing process and to be successful in doing so. Toward the end of Joint Tenancies, some forms are included that offer ideas for how a landlord might treat this type of transaction. Using these forms, or anything like them, won’t guarantee that a landlord avoids forfeiture or personal criminal prosecution if that landlord veers off the regulatory rails. Any potential commercial landlord must proceed with extreme caution. Part of that process is to obtain competent legal advice from an experienced attorney in the local community.

Inside this book readers will find sound advice, for example, "Landlords should not be seduced by potential rent rewards and ignore risk factors like losing the property’s insurance coverage. Early-warning signals to landlords will come from the office of the state’s U.S. Attorney or local DEA officials in each state. Landlords must read these signals so that they make informed decisions before signing any lease proposal."

April 15, 2018 | Permalink | Comments (0)

Friday, April 13, 2018

Property Lawyer Gone Bad

It's not often that I can make quitclaim deeds look like a sexy topic in Property.  This semester in particular, the conversation about warranty of title (or lack thereof) dragged on for a good bit longer than I had planned.  As always happens, one student asked why anyone would transfer property via a quitclaim deed.  While I was explaining that the value of the interest an individual has in a tract of land might be less than the cost of determining the exact scope of that interest, I could see the glaze over my students' eyes growing.  I was saved by the bell, but fretted returning the next day to a bored group of students.  

That is when this news story hit the press.  

A lawyer from near New Orleans wanted to make a buck and what better way to do it than through a few quitclaim deeds.  More than a decade ago, the property lawyer decided to write up some false quitclaim deeds on a few properties that appeared to be abandoned.  The lawyer put his business partner's name in as the seller, the lawyer's name in as the buyer, put the deed in valid form under Louisiana, and presto!  The quitclaim deeds were filed in the public records and a couple of years later, the lawyer aka alleged buyer of the abandoned properties sold the properties to unsuspecting third parties.  Making up quitclaim deeds and selling them off became like going to the ATM.  

Fast forward to the present day when those unsuspecting third party buyers resell the property to new unsuspecting third parties who are unable to get clean title to the properties and the gig is up.  Louisiana has a notably long period for adverse possession (or acquisitive prescription as it is referred to in this civil law jurisdiction), so the new buyers can't be saved by adverse possession.  The original attorney re-enters the scene and files a defamation lawsuit against all of the buyers of the property.  Why?  Because the buyers of the property have been asserting that the lawyer made the original sin in this whole transaction.  To top it all off, the lawyer has a bizarre coffee shop meeting with the buyers he is suing for defamation.  During the coffee shop meeting, the lawyer does a time warp to the 1990s by literally giving the buyers an Ace Ventura loser sign.  (Seriously.  Read the story.  The loser part is even included.)

Needless to say, the lawyer involved is in a heap of trouble, facing possible disbarment.  And the buyers aren't much better off, at least financially.  But my Property class, I am happy to say, is now wide awake and totally enthralled in quitclaim deeds.  

April 13, 2018 | Permalink | Comments (0)

Tuesday, April 10, 2018

New Book on Property and Human Flourishing by Alexander

PropandHumFlourGregory Alexander's (Cornell) latest book, Property and Human Flourishing (Oxford University Press), just hit the shelves.  The book continues Greg's scholarship on progressive property by offering an alternative way of understanding the moral issues of private ownership, namely that human flourishing is property's moral foundation.  As Greg has done in previous articles, he develops a theory that connects ownership and human flourishing with obligations.  Greg asserts in the book that "[o]wners have obligations to members of the communities that enabled the owners to live flourishing lives by cultivating in their community members certain capabilities that are essential to leading a well-lived life. These obligations are rooted in the interdependence that exists between owners and their community members, and inherent in the human condition."  Moreover, the book focuses on practical matters by discussing the implications for a wide variety of property issues including, but not limited to, expropriation, eviction, mortgage foreclosure, and homelessness.  

This past January, Greg visited Tulane to give a faculty workshop, and I had the privilege of discussing with Greg Chapter Eight of his new book, titled "Of Buildings, Art, and Sperm: The Right to Destroy and the Duty to Preserve."  In this chapter, Greg sought to reframe the discussion on the right to destroy in the context of human flourishing.  Specifically, Greg examined three types of property where destruction (and the legal fallout thereafter) arises with some frequency:  historic preservation, art, and embryos.  My take away from reading the chapter was that regardless if one agrees or disagrees with how the Aristotelian notion of human flourishing is being applied to property law, Greg's writing challenges our basic thinking about property law and, more importantly, the goals that should underpin our property doctrines.  As Hanoch Dagan (Tel-Aviv University) said about Property and Human Flourishing, the book "offers a progressive alternative to the dominant libertarian and welfarist conceptions of property. This is a major work, providing a comprehensive defense and a nuanced refinement of Alexander's innovative human flourishing theory of property."

Congratulations, Greg, on a great new piece of property law scholarship!


April 10, 2018 | Permalink | Comments (0)