The U.S. Supreme Court cited the Restatement of the Law Third, Property: Mortgages, in holding that a business that engaged in no more than the enforcement of a security interest—such as a law firm that pursued nonjudicial foreclosures on behalf of clients—was not a “debt collector” within the meaning of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692a(6), except for the limited purpose of § 1692f, which prohibited entities from threatening to foreclose on a consumer’s home without having legal entitlement to do so.
Property law has proven difficult to restate, with none of The American Law Institute’s previous Restatements coming close to covering the full breadth of this area. In addition to trying to fill this gap, those working on the current Fourth Restatement aim to capture the architecture of property.
A recent article for Atlas Obscura explores the interesting and often confusing legality surrounding property law in relation to grave sites. Coal mining pursuits in West Virginia have stretched up into the mountains and on occasion require navigation around generations old grave sites and remnants of forgotten mining towns.
Property owners sometimes allege that a local government has violated the Fifth Amendment’s takings clause, which prohibits the taking of private property “for public use, without just compensation.” But where can plaintiffs bring those claims? In Wednesday’s argument in Knick v. Township of Scott, the Supreme Court revisited a 1985 case that has made it difficult to bring certain takings claims in federal court. In that case, Williamson County Regional Planning Commission v. Hamilton Bank, the court ruled that “if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.”
Since the late 1990s, prominent scholars have rejected the conventional wisdom that the bundle metaphor defines property.
“Restatement Fourth of Property” sounds like an exercise in excess. It isn’t. It is true that there have been three rounds of previous Restatements of Property that have contributed greatly to the development of the law. And it is also the case that property law presents a large and seemingly disparate set of problems, doctrines, and institutions, making any attempt to restate the law in this area no small challenge.