2010 Mid-Year Meeting
Workshop on Property
June 10 – 12, 2010
New York, New York
Two major crises in the last few years have exposed deep tensions and pressures on our understanding of Property Law. The foreclosure of more than 2 million homes, and the anticipated default of another 6 million mortgages have shaken common notions about the ability of consumers to understand real estate transactions and the terms of their mortgage contracts, posed stark questions about the failure of the law to limit the ability of the market to produce property transactions that created significant principal/agent costs, moral hazards, and externalities, and presented challenging questions about racial disparities in access to prime credit and in the underwriting of troublesome new mortgage products. Similarly, vigorous debates over the responsibility of industrialized countries to control global warming, the need to protect future generations from the effects of global warming, and the fair allocation of the burdens of reducing greenhouse gases similarly have posed challenging questions about the regulation of risk from activities on private property, the nature of property owners’ obligations to future generations, and the failure of regulation to control externalities from the use of property. Both crises raise serious theoretical and practical challenges to traditional notions about the comparative advantages of the free market, our ability to craft property laws that limit systematic risk without unduly discouraging innovation, and the continuing inability of the law to prevent racial discrimination, exclusion and exploitation.
The crises also have shown that property conundrums are hardest when they fall at the intersections of state and federal law; constitutional, statutory, regulatory and common law; and substantive environmental, international, financial instruments and risk regulation fields. Property law professors increasingly must come to terms with these intersections as they struggle to distinguish property from other subjects. At the same time, property law professors must master and incorporate into their scholarship and teaching the considerable insights normative theory, theories about race, gender and inequality, and scholarship on law and economics (especially behavioral law and economics) and political economy provide about property.
To address these issues, the workshop will begin substantively on Friday, June 11 with an opening plenary focused on identifying the core of property that must be taught in the introductory property course. As the credits allotted to introductory property courses shrink in schools across the country, but as the crises of the last few years show just how fundamental property law is to our legal and financial systems, senior, mid-level, and junior professors will debate what is critical to include in the basic property course. A second plenary will launch sessions on the mortgage and housing crises, focusing first on “Property in Dangerous Packages: Subprime and Skin in the Game.” The luncheon keynote will feature a discussion of federal efforts to address the need for reform in the regulation of the financial and mortgage sectors.
The afternoon sessions will then feature breakout sessions on what behavioral law and economics tells us about the mortgage crisis; what norms underpin the mortgage crisis; what the crisis tells us about the regulation of risk; and what we can learn about and from the political economy of homeownership. We will then reconvene in a third plenary session to talk about inequality and the subprime market.
The morning of Saturday, June 12th will feature breakout sessions organized around works in progress selected through a request for proposals. A fourth plenary session will then focus on what the global warming crisis tells us about property law. Breakout sessions will follow, again to allow examination of the global warming crisis through the perspective of various normative theories and theories of equality and fairness, as well as from a political economy and risk regulation vantage point. The day will end with very early works in progress roundtables, at which scholars with very preliminary ideas will be given just ten minutes to outline their ideas and get feedback on the viability of the topic.
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