Law Commons^™

Decoupling Property And Education, Nicole Stelle Garnett

Journal Articles

Over the past several years, the landscape of K–12 education policy has shifted dramatically, thanks in part to increasing prevalence of parental-choice policies, including intra- and inter-district public school choice, charter schools, and private-school choice policies like vouchers and (most recently) universal education savings accounts. These policies decouple property and education by delinking students’ educational options from their residential addresses. The wisdom and efficacy of parental choice as education policy is hotly debated. This Essay takes a step back from these education-policy debates and examines the underappreciated fact that decoupling property and education also advances at least economic development goals. …

Negative-Value Property, Bruce R. Huber

Journal Articles

Ownership is commonly regarded as a powerful tool for environmental protection and an essential solution to the tragedy of the commons. But conventional property analysis downplays the possibility of negative-value property, a category which includes contaminated, depleted, or derelict sites. Owners have little incentive to retain or restore negative-value property and much incentive to alienate it. Although the law formally prohibits the abandonment of real property, avenues remain by which owners may functionally abandon negative-value property, as demonstrated recently by busts in certain coal and oil & gas markets. When negative-value property is abandoned, whether formally or functionally, the rehabilitation …

Conscience And Justice In Equity: Comments On Equity: Conscience Goes To Market, Paul B. Miller

Journal Articles

This short essay introduces and engages several philosophical questions raised by Irit Samet’s Equity: Conscience Goes to Market. Amongst other things, it addresses questions going to: the proper scope of equity; the relationship between equity’s remedial and supplemental functions; whether, and if so, to what extent equity promotes compliance with moral obligations; what, if any, moral aims animate equitable intervention; and whether, and if so, how, equity is distinctively concerned with matters of conscience and “particular” justice. All the while, I express appreciation for Samet’s project while raising some doubts about her views on how law and equity divide labor …

Municipal Responses To Vacant Properties In The United States, James J. Kelly Jr.

Journal Articles

The administrative law specialized magazine No. 24 which explores the foundation of administrative law theory. This issue contains 5 articles that focus on the vacant house issue.

Vacant house measures in American municipalities

Justice Scalia's Rule Of Law And Law Of Takings, Nicole Stelle Garnett

Journal Articles

This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.

Freeing The City To Compete, James J. Kelly Jr.

Journal Articles

In this paper, I examine how the rights of owners, lenders and residents threaten the functioning of real markets in distressed urban neighborhoods, perpetuating the pall that vacant and abandoned houses cast over their future. Even a single abandoned house can present an example of how the rights of several stakeholders create a form of gridlock known as anticommons, which isolates that property from a potentially transformative transfer of title. In addition to this legal anticommons, some neighborhoods are so beset by vacant property problems that they require coordination of investment that is frustrated by both the multiplicity of private …

Planning For Density: Promises, Perils And A Paradox, Nicole Stelle Garnett

Journal Articles

This article, which was delivered as the 2017 Environmental Distinguished Lecture at Florida State University, discussed the promises, perils and an unappreciated paradox of current efforts to use land use policy to densify and urbanize American communities.

Sustaining Neighborhoods Of Choice: From Land Bank(Ing) To Land Trust(Ing), James J. Kelly Jr.

Journal Articles

This essay is based on my closing presentation at the Washburn Law Journal's 2015 symposium entitled “The Future of Housing -- Equity, Stability and Sustainability.” It explores how land banks and land trusts promote social goods, including socioeconomic integration, by connecting with and shielding against, respectively, market forces. Both engage in stewardship of land. Land banks take temporary ownership of vacant, abandoned properties in order to make them available for productive use. Land trusts hold land indefinitely to ensure a social purpose is met. Community land trusts hold land for a purpose that is responsive to the human environment, often …

How To Kill A Zombie: Strategies For Dealing With The Aftermath Of The Foreclosure Crisis, Judith L. Fox

Journal Articles

The foreclosure crisis which began in 2008 is old news; or is it? A lot of attention has been paid to the plight of homeowners struggling to save their homes from foreclosure. Legislative and regulatory changes have made it easier for homeowners to navigate the loss mitigation process. A significant number of people, however, did not try to save their homes. In fact, some actively tried unsuccessfully to give the homes back to their lender. These abandoned homes and abandoned foreclosures have become zombie mortgages. This is the legacy of this crisis.

The existence of these homes is well documented …

The Future Of Foreclosure Law In The Wake Of The Great Housing Crisis Of 2007-2014, Judy Fox

Journal Articles

As 2014 came to an end so, perhaps, did the worst foreclosure crisis in U.S. history. On January 15, 2015, RealityTrac, one of the nation’s leading reporters of housing data, declared the foreclosure crisis had ended. Whether or not their declaration proves true, the aftermath of the crisis will be felt for years to come. During the crisis it is estimated more than five million families lost their homes to foreclosure. Federal, state and local responses to the crisis changed laws and perceptions regarding foreclosure. Despite these changes, we end the crisis much the way we began -- with a …

Three Things: A Tribute To Judge Morris Sheppard Arnold, Nicole Stelle Garnett

Journal Articles

On February 20, 2015, the Arkansas Bar Association hosted a tribute to Judge Morris Sheppard Arnold (8th Cir., retired). I had the privilege of clerking for Judge Arnold in 1995-96 and the great honor of being asked to speak about the Judge at the event. Greenbag graciously agreed to publish my remarks.

The Right To Include, Daniel B. Kelly

Journal Articles

Recent scholarship has created renewed interest in the “right to exclude.” Many contend that, because owners have a right to exclude, private property has a tendency to promote individualism and exclusion. But, as I will argue, property can promote sociability and inclusion by providing owners with various ways of including others. Owners can assert their “right to include” by waiving exclusion rights, dividing existing rights by contracts or property forms, and creating new co-ownership arrangements. Inclusion is socially beneficial insofar as it enables sharing and exchange, facilitates financing and risk-spreading, and promotes specialization. Yet inclusion may entail costs, including coordination …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

The Durability Of Private Claims To Public Property, Bruce R. Huber

Journal Articles

Property rights and resource use are closely related. Scholarly inquiry about their relation, however, tends to emphasize private property arrangements while ignoring public property — property formally owned by government. The well-known tragedies of the commons and anticommons, for example, are generally analyzed with reference to the optimal form and degree of private ownership. But what about property owned by the state? The federal government alone owns nearly one-third of the land area of the United States. One could well ask: is there a tragedy associated with public property, too? If there is, here is what it might look like: …

Foreclosure Echo: How Abandoned Foreclosures Are Re-Entering The Market Through Debt Buyers, Judy Fox

Journal Articles

It is common knowledge that mortgage defaults increased steadily from 2006 through 2011. In some situations, lenders moved swiftly after default to foreclose the property; but for other homeowners the foreclosure process began and then stalled or was completely abandoned by the lender. The result of these abandoned foreclosures has been devastating to cities and consumers throughout the country. This article explores what is happening to homeowners caught up in the strange world of bank walkaways as the economy is beginning to improve. This second wave of collection activity, an echo of the original foreclosure crisis, could easily throw thousands …

A Continuum In Remedies: Reconnecting Vacant Houses To The Market, James J. Kelly Jr.

Journal Articles

For decades, America’s older, undercrowded cities have struggled with neighborhoods beset by vacant houses that seemingly have no connection with a functioning real estate market. A nationwide foreclosure crisis has brought even greater attention to the need for inner-city communities to address vacant house nuisances. This paper argues that recent developments in property theory help us understand and complete reforms of legal remedies that address this continuing national need.

Traditional, in personam code enforcement remedies emanate from a legal understanding of real estate ownership as the strongest of property-rule-protected entitlements. Local government authorities hold owners directly accountable for any failures …

Sharing The Wealth, James J. Kelly Jr.

Journal Articles

This review of the textbook, "Community Economic Development Law" (Aspen 2013), written by Susan Bennett, Brenda Bratton Blom, Louise Howells and Deborah Kenn, appeared in the Vol. 22, No.1 issue of the Journal of Affordable Housing and Community Economic Development Law.

Inclusionary Housing On A Global Basis, James J. Kelly Jr.

Journal Articles

This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices …

Strategic Spillovers, Daniel B. Kelly

Journal Articles

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This …

Unbundling Homeownership: Regional Reforms From The Inside Out, Nicole Stelle Garnett

Journal Articles

Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient …

"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett

Journal Articles

This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided …

Bringing Clarity To Title Clearing: Tax Foreclosure And Due Process In The Internet Age, James J. Kelly Jr.

Journal Articles

The foreclosure of property tax liens performs an essential economic function by reconnecting underutilized properties to the real estate market. To clear title in an efficient and just manner, local jurisdictions foreclosing on tax liens require clear, balanced procedures for the provision of notice to affected parties. In its 2006 decision in Jones v. Flowers, the U.S. Supreme Court found that the foreclosing jurisdiction's lack of direct follow-up on returned notice mailings denied the addressee due process because the foreclosing party did not take steps that would be chosen by one desirous of actually informing the property owner. In subjecting …

Property In-Laws, Nicole Stelle Garnett

Journal Articles

My family's story will be familiar to those who have read Eduardo Pefialver and Sonia Katyal's engaging article, Property Outlaws. Robert Fowler was, according to their taxonomy, an "[a]cquisitive outlaw[]": he was a trespasser whose actions were "oriented primarily toward direct appropriation." Pefialver and Katyal contrast the self-interested acquisitive outlaw with the other-regarding "[e]xpressive out law[]," who trespasses as a form of conscientious objection, and the "intersectional outlaw[]," whose actions commingle acquisitive and expressive elements. According to Pefialver and Katyal, property outlaws are underappreciated because, in appropriate circumstances, they serve both "redistributive" and "informational" functions. That is, property outlaws both …

"We Shall Not Be Moved": Urban Communities, Eminent Domain And The Socioeconomics Of Just Compensation, James J. Kelly

Journal Articles

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of public use and just compensation as limitations on eminent domain. In the context of urban redevelopment, the theory …

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Journal Articles

This Article challenges a foundational assumption about eminent domain - namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain. The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners …

Ordering (And Order In) The City, Nicole Stelle Garnett

Journal Articles

Over the past two decades, the broken windows hypothesis by George Kelling and James Q. Wilson has revolutionized thinking about urban policy. This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. The response to this theory has been a proliferation of policies focusing on public order. Largely missing from the academic debate about these developments is a discussion of the complex and important role of property regulation in order-maintenance efforts. This Article attempts to fill that property law gap in the public-order puzzle …

Using The Pervasive Method Of Teaching Legal Ethics In A Property Course, Thomas L. Shaffer

Journal Articles

The first-year introductory course in property law is about all that is left of the traditional black-box curriculum. It is where beginning law students cope with and despair of the arcana of English common law; where, with more detachment than, say, in the torts course, analysis of appellate opinions is what "thinking like a lawyer" means, with no more than peripheral and begrudging attention to modem legislation and administrative law; where legal reasoning is a stretching exercise and initiatory discipline. And, incidentally, surviving bravely the rude invasion of teachers of public law, it is where a teaching lawyer can point …

Moral Nuisances, John C. Nagle

Journal Articles

Nuisance law provides a remedy for activities that substantially interfere with the use and enjoyment of one's land. Most nuisance cases today involve environmental pollution or unwanted noises, sights, or smells. Historically, though, nuisance law had a much broader application that regulated brothels, saloons, and gambling parlors - what I call moral nuisances.

I articulate a theory of moral nuisances that applies when (1) a substantial and legally cognizable interference with a landowner's use or enjoyment of his or her land is caused by (2) an action that is regarded as immoral by a reasonable person within the community (3) …

The Secret Lives Of The Four Horsemen, Barry Cushman

Journal Articles

"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars …

Introduction: The Ancient Roots Of Modern Forfeiture Law, Jimmy Gurule

Journal Articles

Civil forfeiture is one of the most potent weapons available to prosecutors in the “war on drugs” and against traditional organized crime. Unlike criminal forfeiture it is in rem and based on a legal fiction that property used in violation of law must be held responsible for harm that it has caused. The conceptual underpinnings of civil forfeiture are long established and can be traced back to English common law, but they also create the potential for abuse. There is currently federal legislation that considers scaling back the reach of civil forfeiture and recent Supreme Court decisions have also limited …