Law Commons^™

Taking The Oceanfront Lot, Josh Eagle

Josh Eagle

Oceanfront landowners and states share a property boundary that runs between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the …

The Divergent Evolution Of English Property Law, Jerry L. Anderson

Jerry L. Anderson

Despite the common origins of American and English property law, there are now some significant, and interesting, differences. This article examines five divergent aspects in the areas of title registration, limitations on ownership, condominiums, adverse possession, and foreclosure. In each case, the differences should cause us to think about whether our system represents the best approach, in terms of efficiency and fairness.

California Supreme Court Unanimously Upholds Inclusionary Zoning As Land Use Regulation And Not An Exaction, Tim Iglesias

Tim Iglesias

Local governments, housing advocates, and people who need affordable housing won a solid victory in the California Supreme Court's unanimous opinion in California Bldg. Indus. Ass'n v. City of San Jose. In a complex 64-page opinion that is clearly drafted and rigorously argued, the court held that inclusionary zoning is a constitutionally permissible strategy to produce affordable housing and to promote economic integration that is subject to rational basis review and not heightened scrutiny.

This article outlines the factual and legal background of the case and discusses the court's reasoning in reaching its decision, including the court's refusal to find …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Mortgage Foreclosure In Buckhead, Terika L. Haynes

Terika L Haynes

The purpose of the quantitative ex post facto study was to determine whether a relationship exists between home occupancy type, purchase price, residency duration, and the incidence of mortgage foreclosure of homeowners residing in single-family residential homes in the eight zip codes (30305, 30309, 30318, 30319, 30324, 30326, 30327, and 30342) within the Buckhead community, a high-income community located in Atlanta, Georgia. The possible relationships were explored and evaluated by conducting an archival analysis to examine the Georgia Public Notice Statewide Database of public foreclosure records, Fulton County Property Assessor records, and Fulton County tax data for 2009. The occupancy …

Property, Rules, And Property Rules, Emily Sherwin

Emily L Sherwin

This essay examines two aspects of “property rules” in the sense defined by Judge Guido Calabresi and Douglas Melamed. In each case, the form in which property rules are cast is critically important. The first question addressed is the capacity of property rules to affect behavior prior to and outside litigation. Most economic analysis of property rules and liability rules assumes that the choice between them will guide decisionmaking at the time of a contemplated rights violation, and possibly prior to that time. To have this effect, property rules (and liability rules) must be established by determinate legal rules that …

Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily Sherwin

Emily L Sherwin

Entirely apart from the substantive justification for existing private property rights, there are several reasons why property is, unavoidably, a morally uncomfortable subject. First, legal property rights are and must be the products of determinate legal rules. As such, they inevitably will diverge in some of their applications from the moral principles that support them. Second, property rights suffer, more than other legal rights, from problems of transition. Most or all justifications for private property envisage secure rights on which people can and will rely. As a result, there may be genuine moral value in the preservation of rights that …

A Taxing Endeavor: Local Government Protection Of Our Nation's Coasts In The "Wake" Of Climate Change, Simone Savino

Simone Savino

A storm is brewing, and not just in our nation’s coastal waters. The effects of climate change are becoming alarmingly apparent: sea levels are rising, storm surges are intensifying and ocean temperatures are warming at increasing speeds. Higher storm surges have led to increased flooding in coastal zones and nearby low-lying regions. The need for greater disaster preparedness in areas vulnerable to storm surges is evident, not just in the United States, but worldwide. As a direct result, coastal towns and cities have been left with the daunting task, and cost, of implementing littoral adaptation measures such as beach renourishment …

Maximizing Inclusionary Zoning’S Contributions To Both Affordable Housing And Residential Integration, Tim Iglesias

Tim Iglesias

Inclusionary zoning is a popular policy that can uniquely serve both affordable housing and fair housing goals at the same time. Assuming the U.S. Department of Housing and Urban Development finalizes its proposed “Affirmatively Furthering Fair Housing” regulation, inclusionary zoning will become more broadly used. But more extensive use of inclusionary zoning poses both opportunities and risks for housing advocates because of the following three issues: (1) Unacknowledged tradeoffs between affordable housing and fair housing goals in inclusionary zoning design and implementation; (2) Conflicting concepts of residential integration; and (3) Legal challenges to inclusionary zoning. The challenge facing inclusionary zoning …

There Goes The Neighborhood: Florida's Crackdown On Adverse Possession In The Wake Of The Foreclosure Crisis, Phillip V. Urban

Phillip V Urban

An examination of the creative use of adverse possession in Florida following the foreclosure crisis, and the State's heavy-handed reaction to the practice.

Rights, Privileges, And The Future Of Marriage, Adam Macleod

Adam MacLeod

On the eve of its final triumph, has the cause of marriage equality fallen short? This essay discusses persistent differences in the incidents that attach to same-sex marriages versus man-woman marriages. It examines these in light of the distinction between fundamental rights and concessions of privilege in marriage law, and in common law constitutionalism generally. The Obergefell majority's premise that the marriage right is created and conferred by positive law renders the rights and duties of same-sex marriage unstable. By contrast, the rights and duties of the natural family have proven surprisingly resilient, despite their incompatibility with full marriage equality, …

Underwriting Sustainable Homeownership: The Federal Housing Administration And The Low Down Payment Loan, David J. Reiss

David J Reiss

The United States Federal Housing Administration (“FHA”) has been a versatile tool of government since it was created during the Great Depression. The FHA was created in large part to inject liquidity into a moribund mortgage market. It succeeded wonderfully, with rapid growth during the late 1930s. The federal government repositioned it a number of times over the following decades to achieve a variety of additional social goals. These goals included supporting civilian mobilization during World War II; helping veterans returning from the War; stabilizing urban housing markets during the 1960s; and expanding minority homeownership rates during the 1990s. It …

Is An Apartment A Nuisance?, Michael Lewyn

Michael E Lewyn

In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Some commentators equate municipal comprehensive plans with "smart" growth (that is, development that considers the needs of nondrivers as well as the needs of automobiles). However, comprehensive planning. although desirable, is neither necessary nor sufficient for smart growth. Plans are not necessary because zoning reforms can achieve the same smart growth objectives as plans, and are not sufficient because many comprehensive plans support sprawl rather than smart growth.

Researching Law's Special Issue On "We Want What's Ours", Bernadette Atuahene

Bernadette Atuahene

Researching Law is a socio-legal magazine published by the American Bar Foundation.

A Jeffersonian Republic By Hamiltonian Means: Values, Constraints & Finance In An Authentic American Ownership Society, Robert C. Hockett

Robert C. Hockett

This article, the second in a trilogy, interprets American ownership-spreading programs past and present under the aspect of a comprehensive theory of "the American ownership society" (OS) developed in its predecessor article, titled Whose Ownership? Which Society? It also identifies what appears to be a significant gap in our efforts to become a comprehensive OS thus far. By early in the 20th century, we had developed and implemented a number of highly innovative and successful programs dedicated to the task of spreading human and nonhuman capital (in the form of arable land in particular) quite broadly. Since about the 1930s, …

The Limits Of Property Reparations, Gregory S. Alexander

Gregory S Alexander

Human history is replete with examples of unjustified expropriations of property by conquering states and other transitory regimes. Only in modern times, however, have nations attempted systematically to remedy historical injustices by providing reparations to the dispossessed owners or their successors. From the aboriginal peoples of the Antipodes to the Native Americans of Canada and the U.S. to the European victims of the German and Soviet communism, groups of people who were stripped of their land and possessions by fraud or force are demanding, and in many cases getting, reparations for these injustices. The thesis of this paper is that …

Commentaries: The Ambiguous Work Of “Natural Property Rights”, Gregory S. Alexander

Gregory S Alexander

The three fascinating papers by Dick Helmholz, Jim Ely, and Mark Tushnet prompt me to ask, why was there so much talk among late 18th and 19th century American lawyers about property as a "natural" right and why has the language persisted today? More specifically, what work is the rhetoric of "natural property rights" intended to do? This is not the proper occasion for developing anything like complete answers to those questions, but I do want to offer three lines of thought that might begin to approach a fuller explanation of the puzzling persistence of natural-property-rights talk.

Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver

Gregory S Alexander

Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of …

Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver

Eduardo M. Peñalver

Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of …

The Promises And Pitfalls Of Micro-Housing, Tim Iglesias

Tim Iglesias

This is a primer on the new and growing phenomenon of micro-housing. It defines micro-housing, discusses policy arguments and outlines regulatory issues.

Comment On Home Mortgage Disclosure Act Proposed Rulemaking, David J. Reiss

David J Reiss

The Consumer Financial Protection Bureau's Home Mortgage Disclosure Act proposed rulemaking (proposed Aug. 29, 2014) is a reasonable one. It increases the amount of information that is to be collected about important consumer products, such as reverse mortgages. It also increases the amount of important information it collects about all mortgages. At the same time, it releases lenders from having to determine borrowers’ intentions about how they will use their loan proceeds, something that can be hard to do and to document well. Finally, while the proposed rule raises some privacy concerns, the CFPB can address them.

Comment On The Fhfa's Small Multifamily Subgoal, David J. Reiss, Jeffrey Lederman

David J Reiss

As the FHFA sets the housing goals for 2015-2017, it should focus on maximizing the creation and preservation of affordable housing. Less efficient proposed subgoals should be rejected unless the FHFA has explicitly identified a compelling rationale to adopt them. The FHFA has not identified one in the case of the proposed small multifamily subgoal. Thus, it should be withdrawn.

The Future Of The Private Label Securities Market, David J. Reiss

David J Reiss

The PLS market, like all markets, cycles from greed to fear, from boom to bust. The mortgage market is still in the fear part of the cycle and recent government interventions in it have, undoubtedly, added to that fear. In recent days, there has been a lot of industry pushback against the government’s approach, including threats to pull out of various sectors. But the government should not chart its course based on today’s news reports. Rather, it should identify fundamentals and stick to them. In particular, its regulatory approach should reflect an attempt to align incentives of market actors with …

The Price Of Crisis: Eminent Domain, Local Governments, And The Value Of Underwater Mortgages, Raymond H. Brescia, Nicholas Martin

Raymond H Brescia

In response to the lingering fallout from the Financial Crisis of 2008, local governments have begun to explore whether it is wise and legal to use the power of eminent domain to seize distressed home mortgages. This Article attempts to situate this approach to such mortgages within the larger economic, legal and policy context and asks three key questions. First, are local governments appropriate actors to address the lingering problem of underwater mortgages? Second, assuming they are appropriate actors to address this problem, how should localities and, if necessary, courts, value underwater mortgages in the context of condemnation proceedings: i.e., …

We Want What's Ours: Learning From South Africa's Land Restitution Program (Oxford University Press), Bernadette Atuahene

All Faculty Scholarship

http://wewantwhatsours.com

Millions of people all over the world have been displaced from their homes and property. Dispossessed individuals and communities often lose more than the physical structures they live in and their material belongings, they are also denied their dignity. These are dignity takings, and land dispossessions occurring in South Africa during colonialism and apartheid are quintessential examples. There have been numerous examples of dignity takings throughout the world, but South Africa stands apart because of its unique remedial efforts. The nation has attempted to move beyond the more common step of providing reparations (compensation for physical losses) to instead …

Friend Or Faux: The Trademark Counterfeiting Act's Inability To Stop The Sale Of Counterfeit Sporting Goods, Jennifer Riso

Jennifer Riso

The demand for counterfeit sporting goods, such as jerseys and other apparel, is on the rise as the prices of authentic goods continue to increase. The Trademark Counterfeiting Act of 1984 criminalizes the import and sale of counterfeit goods, but is ineffective at addressing the demand side of counterfeit goods. This paper analyzes the history behind the Act and recommends ways to ensure that the act will stay relevant as technology makes it easier to purchase counterfeit goods.

The Beginning Of The End Of Coverture: A Reappraisal Of The Married Woman’S Separate Estate, Allison Anna Tait

Allison Anna Tait

Before statutory enactments in the nineteenth century granted married women a limited set of property rights, the separate estate trust was, by and large, the sole form of married women’s property. Although the separate estate allowed married women to circumvent the law of coverture, historians have generally viewed the separate estate as an ineffective vehicle for extending property rights to married women. In this Article, I reappraise the separate estate’s utility and argue that Chancery’s separate estate jurisprudence during the eighteenth century was a critical first step in the establishment of married women as property-holders. Separate estates guaranteed critical financial …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Who Should Be Providing Mortgage Credit To American Households?, David J. Reiss

David J Reiss

Who should be providing mortgage credit to American households? Given that the residential mortgage market is a ten-trillion-dollar one, the answer we come up with had better be right, or we may suffer another brutal financial crisis sooner than we would like. Indeed, the stakes are as high as they were in the Great Depression when the foundation of our current system was first laid down. Unfortunately, the housing finance experts of the 1930s seemed to have a greater clarity of purpose when designing their housing finance system. Part of the problem today is that debates over the housing finance …