PropertyProf Blog

Property and Progress: Antebellum Landscape Art and Property Law

(Doing some cross-posting from thefacultylounge.org this morning....)
My time in Tuscaloosa is rapidly drawing to a close.  Yesterday I had the pleasure of attending graduation and on Thursday I'm going to give a lecture on the relationship between landscape art and property law in the years leading into Civil War at one of my favorite--and one of our country's finest--art museums, the Westervelt Warner Museum.  (The Westervelt Warner owns one of Hiram Powers' statute's The Greek Slave, which is under discussion over at Althouse's shop. The statue served for antebellum Americans as a reminder that Greek Christians could be put into slavery and that we should treat others as we would want to be treated.  In essence, it tried to put Americans into a mindset that would cause them to oppose slavery.  That trope has a distinguished lineage in antislavery advocacy.)

The talk centers around my favorite work of American art, Asher B. Durand's Progress (1853), which just so happens to be owned by the museum.  This will be a huge treat for me, to have the chance to talk about that most magical of paintings at its home.  And, in fact, this talk is part of welcoming it home from travels to the Brooklyn Museum of Art and then out to San Diego for a major exhibit on Durand.  (Alice Walton's  Kindred Spirits , which is the centerpiece of her art museum Crystal Bridges was also a centerpiece of the show.)

I try to join two themes here--first, the centrality of property and particularly humans' footprints on the land, in antebellum landscape art; second, the ways that antebellum property law reflected and amplified those values.  I don't think either of those themes is controversial; however, I have not seen them put together.  The correlation between them is not perfect--a substantial part of landscape art reveals concern over increasing human intrusions on nature.  Just not Durand's Progress.  It’s a great canvass for seeing all sorts of images of what "progress" meant-–the shift from the native Americans over on the left (the state of nature), then moving across the canvass to the right, the telegraph wires, the steam boats, the canal, the peddler, the boy bringing the cattle to market, the church, the railroad roundhouse....

I've written about pieces of this talk in a bunch of places--years ago back at co-op, then here at propertyprof (focusing on Hawaiian landscape art) and ratio juris, and earlier this year at legalhistoryblog.  So major chunks of this have already been "workshopped" on blogs already.  I'll be posting a paper about this by the end of the summer.  In the meantime...

Continue reading "Property and Progress: Antebellum Landscape Art and Property Law"

Gardner on International Application of Regulatory Takings

Royal C. Gardner (Stetson) has posted Taking the Principle of Just Compensation Abroad: Private Property Rights, National Sovereignty, and the Cost of Environmental Protection on SSRN. Here's the abstract:

Part I of this article provides a brief background of the United States takings jurisprudence. It examines how the Fifth Amendment protects private property rights and when environmental regulation implicates the payment of just compensation. Part II reviews the methods by which the United States government seeks to protect the environment without infringing on private property rights, focusing on financial incentives and disincentives. Part III compares the many parallels between private property rights and national sovereignty. Part IV explores how lessons derived from the United States experience in balancing private property rights and environmental concerns are relevant to international environmental issues. It focuses on how the United States seeks to influence the environmental policy of other states through financial incentives and disincentives in multilateral and bilateral contexts. Concluding that such conditional assistance is consistent with the domestic principle of just compensation, the article offers a framework for when such assistance is justified.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

DePaul Conference on Acquiring and Maintaining Collections of Cultural Objects

This fall, on October 16, DePaul Law School's Center for Intellectual Property Law and Information Technology and the Program in Cultural Heritage Law will host a conference on "Acquiring and Maintaining Collections of Cultural Objects: Challenges Confronting American Museums in the 21st Century."

Speakers include: Jame Cuno, Art Institute of Chicago; Ildiko DeAngelis, George Washington University; Patty Gerstenblith, DePaul Law School; Thomas Kline, Andrews Kurth; Jennifer Kreder, Northern Kentucky University; John McCarter, Field Museum of Natural History; John Russell, Massachusetts College of Art and Design; Howard Spiegler, Herrick Feinstein; Martin Sullivan, Smithsonian National Portrait Gallery; and Stephen Urice, University of Miami School of Law.

Looks like a fabulous program!
Alfred Brophy

Antiquities under Siege: Cultural Heritage Protection after the Iraq War

The University of Chicago's Cultural Policy Center has just released Antiquities under Siege: Cultural Heritage Protection after the Iraq War.  Its website describes the book:

As Saddam Hussein's government fell in April 2003, news accounts detailed the pillaging of from the Iraq Museum. The looting of nearly 15,000 items from the Museum's collection grabbed headlines and briefly focused international attention on Iraq's threatened cultural heritage and the efforts to recover missing items. Less dramatic, though far more devastating, has been the subsequent epidemic of looting at thousands of archaeological sites around the country. Illegal digging on a massive scale continues to this day. If unaddressed, the same fundamental deficiencies that left Iraq's museums and sites vulnerable to looters will threaten the cultural heritage of other politically unstable regions.

Antiquities under Siege examines the criminal activity that continues to erode the traces of Mesopotamian, Judeo-Christian and Islamic cultures buried in the desert of Iraq, and investigates the global implications of this ongoing catastrophe. This book demonstrates that the disasters that have befallen Iraq's cultural heritage in the wake of the US-led invasion are both the result of the general failures of postwar planning and specific shortcomings in U.S. and international cultural policies protecting cultural heritage sites and artifacts.

Looks like a fantastic book!

Alfred Brophy.

Frishmann on Environmental Infrastructure

Brett M. Frischmann (Loyola Chicago) has posted Environmental Infrastructure on SSRN.  Here's the abstract:

This essay explores how my recent work on infrastructure and commons applies to environmental resources. Part I briefly describes the core idea, which is developed extensively elsewhere. Part II suggests how it might apply to the natural environment. Specifically, Part II (a) frames the difficult environmental valuation and management problems; (b) applies the infrastructure criteria and delineates environmental infrastructure; (c) offers a few insights regarding environmental management and regulation; and (d) considers how infrastructure theory relates to the literatures on ecosystem services and multiple use management.

The essay is based on a presentation at a panel on infrastructure commons at the 2007 Law & Society Annual Conference in Berlin, Germany. It will be published in the Ecology Law Quarterly along with three essays on infrastructure commons written by David Driesen, Gregory Mandel, and Marc Poirier.

I saw this paper presented at Law & Society.  Very interesting!

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

McCall on North Carolina Eminent Domain

Jamie R. McCall (UNC-Chapel Hill School of Gov't) has posted The Use of Eminent Domain by North Carolina Counties: Historical Patterns, Current Trends, and Decision Variables on SSRN.  Here's the abstract:

A 2006 report by the Government Accountability Office states that little data or research exists on the use of eminent domain by state or local governments. In an effort to help fill this knowledge gap, this capstone examines how eminent domain is used and what variables are important in the execution of eminent domain action by North Carolina county governments. This analysis uses data from a survey of county managers about eminent domain policies and practices. The data show a wide variation of how counties utilize eminent domain, but also suggest that the bulk of eminent domain action is for public infrastructure and public facilities. A wide variety of factors influence county government decisions to condemn property, and the presence of certain structures like religious institutions discourage counties from using eminent domain. Additionally, some counties also engage in alternative strategies before deciding to use their eminent domain authority.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Two From Dana

David Dana (Northwestern) has posted two new papers on SSRN:

Exclusionary Eminent Domain

This Article explores the phenomenon of "exclusionary eminent domain" - the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality, whether or not exclusion itself was the purpose of the condemnation. All condemnations exclude the condemned owner (and his or her tenants, if any) from the condemned property. Exercises of what I am calling "exclusionary eminent domain" are doubly exclusive because the displaced residents are unable to afford new housing in the same neighborhood or locality as their now-condemned, former homes. In exclusionary eminent domain, low-incomes households are excluded not only from their homes but also from their home neighborhood or locality.

Exclusionary eminent domain, as I am using the term, seems to occur in two distinct contexts. In the suburban context, a structure or structures occupied by low-income households are condemned by a predominantly non-low-income locality in the interest of attracting new development that will house or otherwise be geared to middle-class or wealthy people. The threatened condemnations of mobile home parks in suburban New Jersey towns such as Lodi are examples of this type of exclusionary eminent domain. In the urban gentrification mode of exclusionary eminent domain, a large city with a mix of wealthy and poor areas condemns low-income housing in a gentrifying or largely gentrified area, with the result that the displaced low-income residents must move to poorer areas of the city or out of the city. The use of threats of eminent domain to facilitate the massive Atlantic Yards development in north central Brooklyn - a development that will feature seventeen luxury towers to be constructed by Frank Geahry - illustrates this model of exclusionary eminent domain. This Article assesses the case for a new state constitutional law doctrine limiting exclusionary eminent domain, and argues that, on balance, the advantages of such a doctrine may exceed the disadvantages. The particular form of exclusionary eminent domain doctrine I am positing would incorporate two of the features of the most analogous existing doctrine, the state constitutional law doctrine regarding exclusionary zoning. Those features are, first, judicial evaluation of a locality‘s actions in terms of the metropolitan regional needs for low-income housing and each locality‘s fair share obligation with respect to those needs, and, second, the creation of a rebuttable presumption of illegality when the locality takes an action that will bring its stock of affordable housing below or further below its fair share obligation. An exclusionary eminent domain doctrine would not absolutely bar condemnation of low-income housing in a locality or neighborhood that otherwise has less than its fair share of such housing, but rather would result in the application of heightened review to such condemnations. The condemning authority would have to provide a more compelling, more-tailored justification for condemnation than rational basis review would require.

An exclusionary eminent domain doctrine would raise the cost to local officials of condemning low-income housing located in middle-class or wealthy neighborhoods or localities, and thereby would make it more likely that those officials would configure new development so as to leave such housing in place. The doctrine also would provide a strong incentive for a locality that wanted to proceed with the condemnation of low-income housing to create substitute low-income housing in the same neighborhood as the development site, as by doing so they would negate the claim that condemnations would drop the locality or neighborhood below its pre-condemnation fair share of low-income housing. In addition, the doctrine would have the effect of increasing the bargaining power of owners of low-income housing owners who want to sell, so that they would receive larger payments than they would have if there were no exclusionary eminent domain doctrine.

The Mismatch between Public Nuisance Law and Global Warming

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Power on Constitutional Property

Garrett Power (Univ. of Maryland) has posted Constitutional Property' a Chronicle of the Construction of a Concept on SSRN.  Here's the abstract:

In the American constitutional system the sovereign has the power to enact "regulations which are necessary to the common good and general welfare." But the Fifth Amendment to the United States Constitution proscribes that: "No person shall be. . .deprived of. . .property, without due process of law; nor shall private property be taken for public use, without just compensation." And the question of whether a sovereign regulation has "taken" private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles the leading cases and finds that the Court's present interpretation of "regulatory takings" sits upon a shaky foundation of split decisions; the Court's construction of the "constitutional property" remains a work in progress.

It finds today's Supreme Court is fundamentally split into two blocs. This "Great Divide" is sometimes attributed to a difference in judicial philosophy. Those in the Court's conservative wing are typically described as practitioners of "judicial restraint." Those in the Court's liberal wing are said to be "judicial activists" who are intent on reconstructing the Constitution's language to meet the exigencies of the times.

The Court's "constitutional property" jurisprudence belies this stereotype. Its right wing is seeking to define the Takings Clause, beyond its original meaning, so as to discourage government activity. Conversely the left wing is more than willing to give wide discretion to legislative bodies to impose regulations without paying compensation to disappointed property owners.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Brick by Brick

Thanks to Florence Roisman for pointing me to Brick by Brick: A Civil Rights Story, a film about housing and education discrimination in Yonkers.  According to Florence, the housing issues predominate, and it might make an interesting addition to property courses.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Katz on Exclusion and Exclusivity

Larissa M. Katz (Queen's University) has posted Exclusion and Exclusivity in Property Law on SSRN.  Here's the abstract:

In this article, I propose a model for understanding the concept of ownership that I call the exclusivity model. Like many of the contemporary critics of the bundle of rights approach to Ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of these contemporary critics, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the boundary approach to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for them to explain adequately the many subsidiary rights in things that co-exist with the rights of owners. Indeed, when we look more closely at the structure of ownership in property law, I argue that its central concern is not the exclusion of all non-owners from the owned thing, but rather the preservation of the owner's position as the exclusive agenda-setter for the owned thing. So long as others - whether they be subsidiary property right- holders or strangers to the property - act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda-setter.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Teaching Order -- Reprise of Where Should Servitudes Go?

Back in January, I noted that I was going to change my coverage order this Spring.  Rather than doing Real Estate Transactions - Recording - Nuisance - Sevitudes - Zoning, I put servitudes first.  Doing servitudes did have some advantages -- students, for example, were familiar with servitudes of various sorts when they came up in transactional or recording cases.  The downside was that students didn't have as solid a grasp of recording and notice when we covered servitudes.  There is a bit of a chicken and egg issue here, but I think that having the recording material before servitudes is more helpful than having servitudes before recording.  So next year, I'm going back to the traditional order.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Old cemetery poses grave dilemma for buyers of Vt. farm

Thanks to my colleague Norman Stein for pointing me to this case of cemetery law.  From the AP story:

The 130-acre property was exactly what Michel Guite and his family wanted: an old Vermont farm with mountain views, rolling hills and meadows.

There was, however, one wrinkle: The property included a small family cemetery — with the grave of a War of 1812 veteran — surrounded by a fence on a scenic knoll. ...

"I've got nothing against any of those people," he said. "I'm only going to buy this if a judge says `This is now your land, it's your private property, you're allowed to do whatever you want with it. We hope you look after it well, God bless you for it, and nobody has any right to go on your property than they have to go on every other Vermont farm's property.'"

...

Guite wants to move three graves that he said are registered with the town, those of War of 1812 veteran Noah Aldrich II, who died Jan. 15, 1848 at age 61; and Aldrich's two grandchildren, who died within a day of each other in 1850 during a flu epidemic.

More on these issues in my paper on "grave matters: the ancient rights of the graveyard."

Alfred Brophy

Barr, Mullainathan, and Shafir on Behaviorally Informed Home Mortgage Regulation

Michael S. Barr (U. Michigan), Sendhil Mullainathan (Harvard), and Eldar Shafir (Princeton) have posted Behaviorally Informed Home Mortgage Regulation on SSRN.  Here's the abstract:

Choosing a mortgage is one of the biggest financial decisions an American consumer will make. Yet it can be a complicated one, especially in today‘s environment where mortgages vary in dimensions and unique features. This complexity has raised regulatory issues. Should some features be regulated? Should product disclosure be regulated? And most basic of all, is there a rationale for regulation or will the market solve the problem? Current regulation of home mortgages is largely stuck in two competing models of regulation - disclosure and usury or product restrictions - neither of which take adequate account of behavioral psychology or market incentives. This paper seeks to use insights from both psychology and economics to provide a framework for understanding both these models as well as to suggest fundamentally new models. We understand outcomes as an equilibrium interaction between individuals with specific psychologies and firms that respond to those psychologies within specific markets. Regulation must then account for failures in this equilibrium.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Oliveri on Landlord-Tenant Issues and Anti-Illegal Immigrant Ordinances

Rigel Christine Oliveri (U. Missouri) has posted Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination on SSRN.  Here's the abstract:

In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.

This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants. Faced with penalties for renting to unauthorized immigrants, landlords have the clear incentive to screen their tenants' immigration status. However, given the difficulty of ascertaining legal status (and the absence of any reliable mechanism for doing so), landlords are instead likely to resort to short-cuts, such as refusing to rent to "foreign-seeming" people and discriminating based on accent, surname, appearance, or other ethnic markers. As a result, these restrictions are likely to (1) cause landlords to violate the federal Fair Housing Act, which prohibits discrimination on the basis of national origin, and (2) lead to discrimination against all ethnic minority groups whose members look or sound "foreign," regardless of their immigration or citizenship status. In addition to the violations of federal fair housing law that are likely to occur, there are significant public policy arguments against immigration-related housing restrictions.

Federal intervention is therefore necessary. Congress must act to prevent municipalities from enacting and enforcing such restrictions. Moreover, Congress must itself resist pressure to enact immigration-related housing restrictions as a matter of national policy. But this is not enough. Historic and current levels of housing discrimination against national origin minorities and immigrants indicate that these groups are already in need of greater protection, yet the law contains significant gaps in coverage. Both alienage and legal status remain permissible bases for discrimination under the Fair Housing Act. As long as this is the case, discrimination against national origin minorities who are citizens and legally present non-citizens is encouraged to continue. Thus, the Fair Housing Act should be amended to contain explicit protection for both alienage and legal status.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Property Section Call For Papers: Hernando de Soto and Property in a Market Economy

Call for Papers—Hernando de Soto and Property in a Market Economy

Extended Program of the AALS Section on Property Law

The Section on Property Law has proposed a three-hour extended program on “Hernando de Soto and Property in a Market Economy” at the AALS annual meeting in San Diego on Wednesday, January 7, 2009.  The papers presented during the program will take a wide range of approaches to applying the significance of Mr. de Soto’s work to property issues that arise in a mature market economy such as the United States.  Speakers tentatively scheduled to participate include Greg Alexander (Cornell), Nicole Garnett (Notre Dame); Eduardo Penalver (Cornell), Carol Rose (University of Arizona), and Lior Strahilevitz (University of Chicago).  Tentative arrangements have been made to publish the papers from the panel in a book from Ashgate Publishing.

One or more speakers for the panel will be selected through this call for papers.  Because of limited time slots available at the AALS meeting, some proposals may be accepted for publication in the book but not given a speaking slot.  Proposals should consist of a 250-500 word abstract, and should be submitted by June 15, 2008 by e-mail to D. Benjamin Barros, Chair of the Property Section, at dbbarros@mail.widener.edu.

As is always the case with AALS annual meeting programs, presenters must pay their own travel and accommodation expenses, typically with the support of their home institutions.

Ben Barros

San Diego photo from PD Photo via Wikicommons

[Comments are held for approval, so there will be some delay in posting]

Eminent Domain's Impact on Minorities

David T. Beito (Univ. of Alabama) and Ilya Somin (George Mason) have an interesting op-ed on the subject in the Orlando Sentinel.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]