Law Commons^™

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 Thus, it should be withdrawn.

Encouraging Cooperation: Harmonizing The Battle Of Association And Mortgagee Lien Priority In America’S Common Interest Communities, Christian J. Bromley

Christian J Bromley

As the United States grappled with millions of foreclosures in recent years, the delinquency of mortgage and community association payments threatened the sustainability of over 300,000 common interest communities that house 63.4 million Americans. When owners of residential property fall behind on mortgage and association assessments, a battle for lien priority emerges between the associations and mortgagees. Each respectively holds a lien on the property to secure the debt owed to them, but it is the priority of these liens that determines the amount the lienholder recovers from a foreclosure sale. There is no uniform approach to priority in the …

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 Lost Takings Test, Josh Eagle

Josh Eagle

In recent decades, the Supreme Court has used oceanfront property as a principal vehicle for the development of Fifth Amendment takings law. Cases alleging that a state government has taken oceanfront land have produced landmark opinions such as Nollan v. California Coastal Commission (1987), Lucas v. South Carolina Coastal Council (1992), and Stop the Beach Renourishment v. Florida Department of Environmental Protection (2010).

In each of these cases, the Court has applied its standard, positivist takings analysis: first, identifying the rights of the landowner; then, weighing the extent to which the government’s action has limited those rights. This Article argues …

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., …

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.

Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo

John Pizzo

No abstract provided.

Abandonment And Adverse Possession, Sally Brown Richardson

Sally Brown Richardson

In the last decade, abandonment of real property has emerged as an important issue for scholars and policy makers. Due to a variety of factors such as the financial crisis and natural disasters, the number of vacant properties nationwide jumped by 4.5 million between 2000 and 2010, an increase of 44 percent. Vacant properties create a vicious cycle of negative externalities: abandoned property breeds blight and crime, thereby further depressing the economy, which leads to more abandoned property. Solving the problem of abandonment is a top priority for municipal leaders, but effective remedies are hard to come by. Cities have …

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 Recognition Of Indigenous Peoples’ Land: Application Of The Customary Land Rights Model On The Bedouin Case, Morad Elsana

Morad Elsana

ABSTRACT This paper introduces new possibilities for the recognition of Bedouin land in Israel. It shows that the application of the prevalent methods of indigenous land recognition is possible in the Bedouin case, and it would bring legal recognition of Bedouin land rights. The paper first presents the recognition of indigenous peoples land right in Canada, Australia, and other countries, while concentrating on the native title doctrine and the adoption of indigenous customary law. It shows how many colonial legal systems eventually discovered that their judicial systems included principles that recognize indigenous customary land rights. The application of such principles …

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 …

Land Use Impact Fees: Does Koontz V. St. Johns River Water Management District Echo An Arkansas Philosophy Of Property Rights?, Carl J. Circo

Carl J. Circo

Inclusionary Eminent Domain, Gerald S. Dickinson

Gerald S. Dickinson

This article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept – paradoxical in nature – rethinks eminent domain as an inclusionary land assembly framework that is equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. Analogous to inclusionary zoning, inclusionary eminent domain helps us think about how to fix the “exclusionary eminent domain” phenomenon of displacing low-income families by assembling and negotiating the use of land – prior to, during or after condemnation proceedings – to accommodate affordable housing where condemnation threatens to decrease …

Reversal Of Fortune: How German Law Found Its Human Rights And Helped The European Courts Find Theirs, Henry P. Biggs Phd

Henry P Biggs PhD

The German Constitution, or Grundgesetz, forged with Hitler’s totalitarian vision searingly fresh in the German soul, has been hailed as an exemplary effort from a human rights perspective for its articulation of the rights of the individual within the collective. Nowhere in the Grundgesetz has the expression of that balance between the individual’s private right and public interest been more highlighted than under its Article 14 Property Right. This article begins by chronicling the operation of that unique articulation of Property through German case law. The article then moves on to address how that German vision on human rights—relating …

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

Bernadette Atuahene

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Should The Commercial Landlord Have A Duty To Mitigate Damages After The Tenant Abandons?: A Legal And Economic Analysis, David Crump

David Crump

When a commercial tenant abandons the premises, the landlord’s costs continue. Does the landlord, then, have the burden of mitigating damages for a suit against the tenant? Two different rules apply in different states. Some states, including Pennsylvania, put the burden of mitigation on the breaching party: the commercial tenant. Other states, however, put the burden entirely on the non-breaching party: the landlord. Texas follows this latter approach, placing the burden solely on the innocent party and not on the breaching party. The Texas rule, which puts the burden of mitigation on the non-breaching commercial landlord, has serious disadvantages. First, …

Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú

Vicenç Feliú

This work is a revision and update of a study carried out in 1933 by Monsignor Patrick J. Dignan. Dignan’s purpose in his study was to outline the history of how the Roman Catholic Church secured laws for the protection of church property in accordance with the hierarchical nature of the Church. The purpose of the present article is to bring up to date Dignan’s work and complete a survey of the law in its present state. The article analyzes the differences in the law since the original survey to determine if Dignan’s conclusion that the Church should operate to …

Local Governments As Modern Day Robin Hoods: Solving The Mortgage Crisis With Eminent Domain, Yasmany Barroso

Yasmany Barroso

Abstract

This article addresses one of the most critical, ongoing issues of the twenty-first century, the current mortgage crisis. This crisis is one of the worst disasters in American history, leaving hundreds of thousands homeless. In response, the federal government has legislated fiercely, hoping to help struggling homeowners. However, many programs have failed to fix this problem.

This article flexes scholarly knowledge of the fifth amendment’s taking clause in proposing municipalities buy foreclosed homes to sell back to initial and prospective homeowners. The proposal is firmly rooted in reality, however, solving financing issues by further proposing that homeowners seek financing …

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

Evaluating Oral Histories: The Evidentiary Standard In Cases Involving The Repatriation Of Pre-Historic Human Remains, Sylvia St. Clair

Sylvia B. St. Clair

Ms. St. Clair explores the use of oral histories to prove cultural affiliation and examines how the laws of evidence must be adapted in order to accommodate this type of evidence. In cases involving the repatriation of Native American human remains, proving cultural affiliation becomes especially problematic when traditional evidence is scarce and tribal claimants rely on oral histories to prove affiliation. This type of evidence is subject to heavy skepticism, consistently challenged by science and technological advances, and examination of the court’s treatment of cases over the last decade has left confusion on the applicable standard. In face of …

Show Me The Note Q&A, David J. Reiss, Bradley T. Borden

David J Reiss

This is a Q&A relating to an article, Show Me The Note, available at http://works.bepress.com/david_reiss/63/.

"Show Me The Note" refers to a defense that seeks to forestall or prevent foreclosure by requiring the foreclosing party to produce the mortgage and the associated promissory note as proof of its right to initiate foreclosure.

Should The Mortgage Follow The Note?, John Hunt

John P Hunt

The law of mortgage assignment has taken center stage amidst foreclosure crisis, robosigning scandal, and controversy over the Mortgage Electronic Registration System. Yet a concept crucially important to mortgage assignment law, the idea that “the mortgage follows the note,” apparently has never been subjected to a critical analysis in a law review.

This Article makes two claims about that proposition, one positive and one normative. The positive claim is that it has been much less clear than typically assumed that the mortgage follows the note, in the sense that note transfer formalities trump mortgage transfer formalities. “The mortgage follows the …

Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm

Michael Blumm

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law--the "Colorado Doctrine"--lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lochean principles such as widespread distibution of water …

How Comprehensive Planning Makes Suburbia More Sprawling, Michael Lewyn

Michael E Lewyn

Many commentators associate comprehensive land use planning with smart growth- but in fact, municipal plans can be used to further sprawl as well as smart growth.

Show Me The Note!, William K. Akina, David J. Reiss, Bradley T. Borden

David J Reiss

News outlets and foreclosure defense blogs have focused attention on the defense commonly referred to as "show me the note." This defense seeks to forestall or prevent foreclosure by requiring the foreclosing party to produce the mortgage and the associated promissory note as proof of its right to initiate foreclosure.

The defense arose in two recent state supreme-court cases and is also being raised in lower courts throughout the country. It is not only important to individuals facing foreclosure but also for the mortgage industry and investors in mortgage-backed securities. In the aggregate, the body of law that develops as …