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Session Summary – New Scholars Workshop on Property Law

Submitted by W. Keith Robinson

The New Scholars Workshop in Property Law was held on Tuesday morning from 10:15 am to 12 pm. This unique platform allows junior faculty from member schools, nominated by their respective law school deans, to showcase their works-in-progress. The workshop creates a nurturing and supportive environment for these “New Scholars” to present their emerging research and gain valuable feedback from assigned mentors – senior scholars who are experts in the field.

The panel was moderated by Professor Ericka Kelsaw of the Thurgood Marshall School of Law, Texas Southern University. The panel was comprised of three new academics: Professor Jessica L. Asbridge from Baylor University Law School, Professor Match Dawson from St. Mary’s University School of Law, and Professor Milton J. Hernandez from Mississippi College School of Law.

Guidance and mentorship for the new scholars were provided by three senior professors: Professor Colin Marks from St. Mary’s School of Law, Professor Scott Bauries from the University of South Carolina School of Law, and Professor Michael Higdon from the University of Tennessee College of Law, each mentoring a respective scholar.

The event was well-attended by several professors, including several property scholars. The audience participated enthusiastically, asking incisive questions that fueled a lively and thought-provoking discussion.

Louisiana’s Notarial Will: A Case for Reduction of Form Requirements and Return to Strict Compliance

In his presentation, Professor Milton J. Hernandez from Mississippi College School of Law delved into the intricate subject of wills, specifically focusing on the issue of courts in Louisiana upholding defective wills. He argued that recent rulings have engendered confusion and uncertainty about the requisite standards for validating a technically deficient will.

Professor Hernandez proposed two main justifications for these court decisions: firstly, the courts are often swayed by evidence showing a negligible risk of fraud; and secondly, they consider whether the will in question substantially complies with the statutory requirements.

In response to these issues, Professor Hernandez suggested several solutions. He urged the courts to adopt a textual analysis approach, adhering strictly to the written statutory requirements for wills. This method would essentially render invalid any will where the testator has not signed each page. Alternatively, he proposed that the legislature could amend the statute to align with recent court rulings that have upheld technically deficient wills in cases where fraud was unlikely, and the will substantially complied with the statute.

Federalism, Fines, and Forfeitures

Professor Jessica L. Asbridge from Baylor University Law School focused her presentation on the issue of excessive property-related fines that pose a threat to fee simple ownership. She pointed out that the current method for determining whether a fine is excessive is rooted in the Eighth Amendment and the Supreme Court’s interpretation of the test for cruel and unusual punishment. According to Professor Asbridge, this largely deferential test tends to result in most fines being upheld. This is problematic, as such fines can be levied by municipal bodies and disproportionately affect low-income and minority communities.

In contrast, Professor Asbridge proposed that the Takings Clause of the Fifth Amendment provides a more appropriate framework for evaluating whether a fine is excessive. Specifically, she advocated for the use of the exaction doctrine framework. With this method, excessive fines would undergo more stringent scrutiny and only be upheld if they meet the two-step exaction-takings test. She suggested that the application of this more rigorous standard would likely reduce the number of property owners losing their property due to unpaid fines.

Gun Range Immunity: An Argument Against Legalized Nuisance and Non-Governmental Takings

Professor Match Dawson from St. Mary’s University School of Law opened his presentation with an intriguing question: “Why do people choose to live in the country?” When an audience member suggested “peace and quiet,” he concurred, noting that this tranquility is often interrupted for rural residents, including himself, by the disruptive noise of neighboring gun ranges.

Professor Dawson pointed out that in several states, existing statutes prevent gun range owners from being sued under nuisance law if the primary complaint is noise. He posited that these gun ranges are a legalized nuisance that amounts to a private taking of adjacent land. In essence, states are granting private entities—gun range owners—the power to appropriate neighboring land by granting them immunity from nuisance lawsuits.

Professor Dawson advocated for legislative reform, specifically legislation that would empower pre-existing landowners to pursue a nuisance claim against gun range owners. This, he suggested, would ensure a fair balance between the rights of gun range owners and those of their neighboring landowners.