PropertyProf Blog

Disclosure of Energy Star Data in Commercial Real Estate Transactions

According to an alert by some folks at Greenberg Traurig's land development group, California will soon require the disclosure of energy efficiency data in non-residential real estate transactions: 

On January 1, 2010, owners of non-residential buildings in California will be required to disclose the Energy Star performance rating of any building that they want to sell, lease or finance when the entire building is involved in the potential transaction. This disclosure obligation was created by Assembly Bill 1103, which has received little attention from building owners, managers or commercial brokers. However, these parties need to prepare for this new obligation.

The stated purpose of the disclosure requirement is to “motivate building operators to take actions to improve their buildings’ energy profiles” and “to allow building owners and operators to compare their buildings’ performance to that of similar buildings and to manage their buildings’ energy costs.”

Ben Barros

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

Revive INS v. AP to Save Newspapers?

From an Op-Ed in the Cleveland Plain Dealer:

"If the copyright law doesn't open the way for originators of news to stop the free-riding, newspapers will die," he said. "No exceptions."

The Marburgers propose a change in federal law that would allow originators of news to exploit the commercial value of their product. Ideally, news originators' stories would be available only on their Web sites for the first 24 hours.

There is precedent for this change, David Marburger says. In 1918, the Associated Press sued International News Service for essentially the same problem now posed to newspapers by Web aggregators. INS was copying or rewriting AP stories and transmitting them by telegraph and telephone to papers in western U.S. time zones.

The Supreme Court ruled that INS engaged in unfair competition that ultimately would drive AP out of business. It enjoined INS from reproducing the AP stories, but only for a brief period while AP's dispatches had commercial value.

The court decision was diluted over time. In 1976, Congress further weakened the ruling with a new section in the copyright bill that didn't anticipate future problems of the Internet.

The Marburgers recommend amending the federal Copyright Act to provide two remedies for unjust enrichment:

• Aggregators would reimburse newspapers for ad revenues associated with their news reports.

• Injunctions would bar aggregators' profiting from newspapers' content for the first 24 hours after stories are posted.

Ben Barros

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

RLUIPA and Eminent Domain

Over at Prawfs, Nelson Tebbe has an interesting post on the impact of RLUIPA on takings of property owned by religious entities.  The post is based on an article co-authored by Tebbe and Chris Serkin titled  Condemning Religion: RLUIPA and the Politics of Eminent Domain.

Ben Barros

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

Possession in Property Law and Theory

I'm presently working on a paper on possession.  What follows is my current thinking on the different roles that possession plays in property law and theory.  Comments of any sort would be very welcome.

The idea of possession plays three important, but distinct, roles in property law and theory.  First, possession is central to theories justifying individual ownership of objects that previously had been unowned.  These theories seek to explain and defend the origin of a system of private ownership.  In Locke’s theory of property, for example, people gain ownership of objects by possessing those objects and mixing labor with them.  Initial ownership theories rest on an idea of first possession, in which the first possessor becomes the first owner of an object.

Second, the idea of prior possession lies at the heart of many property law doctrines.  Under the rule of prior possession, a prior possessor will generally have a superior claim to an object as compared to a subsequent possessor.  If formal ownership cannot be established between two claimants for the same object, the rule of prior possession states that the prior possessor will be given ownership of the object.  There are many disputes in property law about what actually constitutes possession.  For example, the famous case of Pierson v. Post involved a dispute about whether pursuit of an animal by a hunter was sufficient to establish possession, or whether the actual killing or grabbing of the animal was necessary to possess it.  All cases agree, however, that once the issue of possession is resolved, a prior possessor typically will win over a subsequent possessor.

Prior possession bears a resemblance to first possession, in that both are consistent with the maxim “first in time, first in right” and give superior claim to an object to the earliest person to lay claim to it.  First possession and prior possession, however, tend to do different types of work.  First possession is concerned with the initial ownership of an object, and in a world where there are few unowned objects, first possession is largely relevant to theoretical debates about the idea of ownership itself.  Prior possession, in contrast, is a working doctrine reflected in the operation of property law.  It assumes the big-picture normative justification of a system of private ownership, and addresses the competing claims of ownership of two possessors, neither of whom in the typical case was the first to own the object in question.  This is not to say that the rule of prior possession is without normative content – it reflects a normative position that prior possessors should have superior rights to current possessors.

Third, possession plays an evidentiary role in disputes about ownership.  Absent other evidence about ownership, current possession may create a presumption of ownership.  This evidentiary role of possession is reflected in Lord Mansfield’s famous observation that “Possession is very strong; rather more than nine points of the law.”   Despite its evidentiary significance, however, current possession plays little substantive role in property law.  If person B has current possession, and person A can demonstrate prior possession, then the rules of property law will generally operate to vindicate A’s ownership of the object.

The difference between prior possession and current possession is reflected in the basic operation of property law.  The essential function of property law is to vindicate prior rights in an object.  If B has current possession and A had prior possession or other evidence of ownership, the law will force B to return the object to A.  We could imagine an alternative set of ownership rules that protects current possession over prior possession.  This alternative ownership law would be consistent with the playground maxim “finders keepers, losers weepers.”  (Despite its popularity with the six-to-ten-year-old set, this maxim is not reflected in the actual law of finding, and the original owner or possessor does not lose ownership to the finder.).  Under this alternate ownership regime, whoever currently possesses the object would own the object.  If B has current possession and A had prior possession, the alternate approach would protect B’s possession and would not force a return to A.  This approach is exactly the opposite of the current law of property.

Ben Barros

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

What’s At Stake in Stop the Beach Renourishment

As I noted a couple of weeks ago, the Supreme Court recently granted cert in Stop the Beach Renourishment v. Florida Department of Environmental Protection.  The cert petition presented three questions, but the case will likely center on the first:

The Florida Supreme Court invoked “nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a ''judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

This case gives the Court the opportunity to answer one of the great open questions in takings law:  when, if ever, can a judicial decision constitute a taking of private property in violation of the Fifth Amendment’s Just Compensation Clause?  There is a widespread assumption among many property professors that the answer to this question is “never.”  After all, we teach cases like Matthews v. Bay Head, where the Supreme Court of New Jersey appeared to alter the state’s property law to allow public access to beachfront property that had previously been private.  There is little doubt that if the legislature had required the same access it would have been a per se taking (see, e.g., Nollan, Loretto, Kaiser Aetna).  But because the judiciary, rather than the legislature, made the change, there is a sense that the takings problem somehow disappears.

The Supreme Court has not squarely addressed the judicial takings issue, although there is some precedent from early substantive due process cases that might help the petitioners in Stop the Beach.  The issue has also been addressed in some more recent concurring and dissenting opinions, and was raised at least by implication in Webb's Fabulous Pharmacies v. Beckwith.  One of the most important statements on judicial takings by a member of the Court is the following passage from Justice Stewart’s concurrence in Hughes v. Washington:

Surely, it must be conceded as a general proposition that the law of real property is, under our Constitution, left to the individual States to develop and administer.  And surely Washington or any other State is free to make changes, either legislative or judicial, in its general rules of real property law, including the rules governing the property rights of riparian owners. . . . To the extent that the decision of the Supreme Court of Washington on [the property issue in dispute] arguably conforms to reasonable expectations, we must of course accept it as conclusive.  But to the extent that it constitutes a sudden change in state law, unpredictable in terms of the relevant precedents, no such deference would be appropriate.  For a State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.  Whether the decision here worked an unpredictable change in state law thus inevitably presents a federal question for the determination of this Court.

389 U.S. 295-97 (1967) (Stewart, J., concurring). 

Both Hughes and Stop The Beach involve the doctrine of accretion, which at common law gave ownership of land that was gradually deposited by the ocean to the beachfront property owner.  In Hughes, however, the beachfront land had been owned and conveyed by the United States before Washington became a state.  The Court therefore held that the issue of accretion was governed by federal rather than state law, and concluded that, as a matter of federal common law, the accreted land was owned by the beachfront owner.

This issue of prior federal ownership is not present in Stop The Beach, where the Florida Supreme Court (over vigorous dissent) held that as a matter of Florida law, the beachfront owner did not have a property right in the accreted land.  The petitioners argue that the Florida Supreme Court’s holding was contrary to more than a century of precedent, and therefore constituted an unconstitutional judicial taking of the beachfront owners’ property rights.  I have not read the prior Florida caselaw, but from reading the briefs on cert and the opinions in the Florida Supreme Court, I think that the petitioners make a good case that the Florida Supreme Court’s decision represents a radical departure from its prior law.  I seriously doubt that the Court would have granted cert it had been able to find precedential support for the Florida Supreme Court’s position.  It is also notable, though perhaps not directly relevant, that the Florida Supreme Court’s position is contrary to the U.S. Supreme Court’s statement of the common law in Hughes.

Stop The Beach therefore appears to squarely and cleanly present the judicial takings issue.  Below are some thoughts on how the case might play out and what’s at stake for the larger law of regulatory takings.  First a word of disclosure – I’m on the record (albeit in my student note) as favoring Supreme Court review of state court property decisions under a judicial takings theory.

(1) There are two different ways in which the judicial takings issue can present itself.  First, a state legislature might pass a law that appears to take property rights.  In deciding a takings challenge to the statute, a state court might hold that the claimed property rights did not exist, and reject the takings challenge because there was nothing to take.  Second, in a case brought by private litigants, a state court might make a major change to the state’s existing property law.  Matthews v. Bay Head is an example of the second type of case.  Stop the Beach is an example of the first – the underlying litigation was about provisions of Florida’s Beach and Shore Preservation Act, and the Florida Supreme Court insulated the Act from constitutional problems by holding that there was no protected private property interest to be taken.  There isn’t much of a theoretical basis for a distinction between the two categories, but the Supreme Court’s prior caselaw might be marginally more applicable to the facts in Stop the Beach because of the legislature’s involvement.  As Buzz Thompson has noted, the Court has held in cases such as Muhlker v. New York & Harlem Railroad, 197 U.S. 544 (1905) that it can review a state court’s property rights determination “where a property holder challenge[s] a legislative or executive action as a taking and the state court ha[s] ruled that there was no property to take.”  Barton H. Thompson, Jr., Judicial Takings, 76 Va. L. Rev. 1449, 1467 (1990).  The Supreme Court recently noted in Lingle v. Chevron that it can be problematic to rely on early substantive due process cases as precedent in contemporary regulatory takings cases, but I would expect cases like Muhlker to come into play in Stop the Beach.

(2) I would guess that Justice Scalia was instrumental in obtaining the cert grant.  I predict that the Supreme Court will find a taking in Stop the Beach and that Justice Scalia will write the opinion of the Court.  This, of course, is speculation, but it is informed speculation.  Justice Scalia has argued in the past that the Court should take up the judicial takings issue.  In a lengthy dissent (joined by Justice O’Connor) from a denial of cert in Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994), Justice Scalia wrote:

As a general matter, the Constitution leaves the law of real property to the States. But just as a State may not deny rights protected under the Federal Constitution through pretextual procedural rulings, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455-458, 78 S.Ct. 1163, 1168-1170, 2 L.Ed.2d 1488 (1958), neither may it do so by invoking nonexistent rules of state substantive law. Our opinion in Lucas, for example, would be a nullity if anything that a state court chooses to denominate “background law”-regardless of whether it is really such-could eliminate property rights. “[A] State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.” Hughes v. Washington, 389 U.S. 290, 296-297, 88 S.Ct. 438, 442, 19 L.Ed.2d 530 (1967) (Stewart, J., concurring). No more by judicial decree than by legislative fiat may a State transform private property into public property without compensation. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164, 101 S.Ct. 446, 452, 66 L.Ed.2d 358 (1980). See also Lucas, supra, 505 U.S., at 1031, 112 S.Ct., at 2901. Since opening private property to public use constitutes a taking, see Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 107 S.Ct. 3141, 3145, 97 L.Ed.2d 677 (1987); Kaiser Aetna v. United States, 444 U.S. 164, 178, 100 S.Ct. 383, 392, 62 L.Ed.2d 332 (1979), if it cannot fairly be said that an Oregon doctrine of custom deprived Cannon Beach property owners of their rights to exclude others from the dry sand, then the decision now before us has effected an uncompensated taking.

I suspect that Justice Scalia has been looking for a suitable judicial takings case ever since.  The petitioners in Stop the Beach note that at least 15 cases have sought cert on the judicial takings issue.  I would guess that many of those previous cases had various problems with them that made them poor cert candidates.  This is one reason why I think that the Court (or some members, at least) were reasonably confident that the Florida Supreme Court opinion is not supported by prior Florida law – I don’t think they would have granted cert otherwise.

(3) The sentence referencing Lucas in Justice Scalia’s Cannon Beach dissent helps to explain how the judicial takings issue fits into the Court’s larger regulatory takings jurisprudence.  In Lucas, the Court held that a severe limitation on property rights that would constitute a per se taking would only be constitutional if the state’s background law of property or nuisance established that the property owner had no property rights to begin with.  I have heard anecdotally that some state courts have been aggressive in using the background principles of state law exception to defeat takings claims, perhaps going to the extent of creating such background principles out of what Justice Scalia terms “nonexistent rules of state substantive law”.  Note, by the way, that the cert petition in Stop the Beach quotes this language in describing the Florida Supreme Court’s action.  If the Court holds that such a judicial reformulation of property rights is unconstitutional, then it would place a practical limit on state courts’ ability to use the background principles exception to defeat takings claims.

(4) It should be obvious that accepting the idea of judicial takings would put the Supreme Court in the awkward position of reviewing a state court’s decisions on the substance of state property law.  I doubt that the Court, if it accepts the idea of judicial takings, would defer to a state court’s characterizations of their own decisions – to do so would be to replace the “stupid staffer” that Justice Scalia referred to in Lucas with the stupid law clerk or stupid state court judge.  So the Court would need to review the state court’s analysis to see if it was supported by precedent.  I expect that the Court would only find a judicial taking if the state’s prior law was remarkably clear and that the court decision under review represented a clear departure from that precedent.  Otherwise, the Court risks becoming the court of last resort in any state law property case.

(5) I worry that a decision in favor of the petitioners in Save the Beach will contain some language that can be read to place a broad limit on states’ ability to reform their property law.  Justice Stewart was clear in Hughes that this was not the result that he had in mind:  “surely Washington or any other State is free to make changes, either legislative or judicial, in its general rules of real property law . . . .”  The easiest way to avoid this problem in Stop the Beach would be to simply hold that the judiciary cannot achieve through deciding a case what the legislature cannot do by statute.  The Court’s current caselaw is clear that the legislature cannot transfer private property to public ownership without compensation, and this is what happened in Save the Beach if petitioners’ factual claims are accurate.  This transfer of ownership to the public might be a good way to distinguish between judicial alterations of property law that are takings and those that are not.  Beach access cases come up all the time in the judicial takings literature because they tend to present issues of public ownership or public access.  Similarly, the property reform that was invalidated in Hodel v. Irving involved a statute that escheated certain property interests to the government.  In Lucas, the ability to build on the property was destroyed outright, not transferred to another person.  In contrast with these types of scenarios would be cases that involved alteration of property rights between private parties.  Statutes and judicial decisions alter, and sometimes destroy, property rights all the time.  This does not seem to present a takings problem when the result is that one private party owns the property rather than another private party.  For example, the abolition of the fee tail in many states destroyed the reversionary right in the original owner, effectively transferring that right to the holder of the present interest.  Alterations in almost any part of property law, and many alterations in other areas such statutes of limitations and the law of contracts, can result in A owning a particular property rather than B owning that property.  It would be a big problem if stray language in a Supreme Court case raised questions about states’ ability to make these basic changes to the law.

(6) I wonder about procedural issues if the Court allows judicial takings claims.  Will litigants have to litigate these issues in state court, and rely on cert petitions to remedy judicial takings, or will litigants be able to bring takings claims against the states based on judicial decisions in the lower federal courts?  I’m not an expert on Williamson County and San Remo, and don’t know how those cases might impact the issue.

(7) There are two other questions presented in the cert petition that might be wild cards:

Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

I read the first of these questions as raising a substantive due process claim and the second as raising a procedural due process claim.  I’m not sure how these might play out, though I note that Justice Kennedy has expressed sympathy for due process arguments in the takings context – see, for example, his concurrence in Lingle.

(8) Here’s my guess on how the case comes out:  5-4 in favor of petitioners; opinion of the Court by Justice Scalia, joined by the Chief Justice and Justices Kennedy, Thomas, and Alito.  Possible concurrence on due process grounds by Justice Kennedy.  Justices Stevens, Ginsburg, Breyer, and Sotomayor if confirmed, dissenting, with Justice Stevens especially likely to write.  This may be a case where the replacement of the moderate-conservative Justice Souter with the moderate-liberal Judge Sotomayor might make a difference in the voting, if not in the outcome.  Unlike earlier liberal justices like William Brennan (see, e.g., his dissent in San Diego Gas and Electric), the liberal wing of the current Court has rarely expressed much sympathy for regulatory takings claims.  Justice Stevens, of course, dissented in Penn Central, but has been the leader of the anti-regulatory takings wing of the Court since at least the mid-1980’s.

(9) If you are new to the judicial takings issue, here are four articles to read:  (a) Buzz Thompson’s article in the Virginia Law Review mentioned above – it is the classic on the subject; (b) David Bederman’s The Curious Resurrection of Custom:  Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375 (1996); (c) Roderick Walston’s The Consitution and Property:  Due Process, Regulatory Takings, and Judicial Takings, 2001 Utah L. Rev. 379; and (d) David Sarratt’s Judicial Takings and the Course Pursued, 90 Va. L. Rev. 1487 (2004).

Ben Barros

Photo of Destin, Florida beach via Wikicommons

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

Property in Rain

Yesterday's NY Times has a fun story about a change in Colorado law that now makes it permissible for owners to collect rain that falls on their property.  A taste:

For the first time since territorial days, rain will be free for the catching here, as more and more thirsty states part ways with one of the most entrenched codes of the West.  Precipitation, every last drop or flake, was assigned ownership from the moment it fell in many Western states, making scofflaws of people who scooped rainfall from their own gutters. In some instances, the rights to that water were assigned a century or more ago.

Now two new laws in Colorado will allow many people to collect rainwater legally. . . . 
.
Science has also stepped forward to underline how incorrect the old sweeping legal generalizations were.

A study in 2007 proved crucial to convincing Colorado lawmakers that rain catching would not rob water owners of their rights. It found that in an average year, 97 percent of the precipitation that fell in Douglas County, near Denver, never got anywhere near a stream. The water evaporated or was used by plants.

Ben Barros

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

The Market in Human Eggs

Over at The Faculty Lounge, Kim Krawiec has a great post on New York's recent decision to allow (and cap) payments for human eggs used in research.  This should be of interest to those who follow property-in-the-body debates.

Ben Barros

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

Brown on the Race to Subprime

Carol Necole Brown (UNC - Chapel Hill) has posted Intent and Empirics: Race to the Subprime on SSRN.  Here's the abstract:

The United States’ history of racially discriminatory banking, housing, and property policies created a community of black Americans accustomed to exploitative financial services and vulnerable to victimization by subprime lenders. My thesis is that black borrowers are experiencing a new iteration of intentional housing discrimination in the twentieth and twenty-first centuries; lenders identified a vulnerable “emerging market” of black homeowners and borrowers and knowingly targeted them to receive subprime or predatory loan products when equally situated white borrowers were given superior, prime mortgage products.

This Article explores how disparate lending practices coupled with banking deregulation undermined the Congressional push for increased minority homeownership and widened the already burgeoning wealth divide. Millions of borrowers who accepted subprime loans between 1998 and 2006 already have or will lose their homes to foreclosure, resulting in a net loss in homeownership for nearly one million families. Blacks are disproportionately represented among the subprime victims, especially black women. The lending and financial services structure that caused this crisis is complicated by evidence of redlining and of steering blacks into subprime loans, all of which contributed to the present foreclosure crisis. This subprime dilemma merely adds new terminology to a long history of racial discrimination in housing in America. In the end, this Article argues that the search for an understanding of the cumulative events that facilitated the exploitation of blacks by subprime lenders illuminates the institutional and national impediments to reversing the present and future harm of the subprime crisis and to ensuring blacks equal access to one of the benefits of full citizenship – property.

First, in Part II, I contend that the disparities in subprime lending experienced by black borrowers and especially by black women result from intentional reverse-redlining and steering by lending institutions, their loan officers, and brokers. Next, in Part III, I consider why blacks and black women are disproportionately victims of subprime mortgages and of predatory lending. Finally, Part IV concludes by discussing the after-effects of subprime and predatory lending and offers possible solutions for rethinking how blacks are to overcome this deeply profound experience with housing discrimination which I suggest made blacks prime subprime victims. It focuses on the property dilemma or rather the dilemma of the landless.

Ben Barros

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

Collins on Eminent Domain, Home Rule and Retroactivity

Richard B. Collins (Colorado) has posted Telluride's Tale of Eminent Domain, Home Rule, and Retroactivity on SSRN.  Here's the abstract:

Telluride, Colorado, won an eminent domain battle with San Diego billionaire Neal Blue, but only after paying his price and his attorney's fees. The town passed a condemnation ordinance by popular initiative to take 572 acres adjacent to the town. The landowner obtained a state statute intended to forbid the town's action. The trial judge held the statute invalid under Colorado's constitutional home rule amendment. Town officials negotiated a compromise with the landowner, but its voters rejected it. The valuation trial was moved to a neighboring county much more favorable to the landowner, and the jury gave him his full price. The owner then appealed to the state supreme court based on the state statute. But that court affirmed, holding that Telluride's right to home rule overrode the statute. The case presented interesting issues of home rule, eminent domain, retroactivity, and venue that are analyzed in the article.

Ben Barros

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

Framing in First-Year Property

I've been thinking about possession quite a bit lately, and this in turn has led me to think a bit about how we frame issues in the first-year property course.  There are a number of issues where I (and I think most PropertyProfs) teach the received wisdom on certain theoretical or conceptual points.  For example, I tend to emphasize that in many cases, possession is more of a conclusion than it is a fact of the matter.  I also tend to teach the bundle of rights model of understanding property.  Both of these are contestable positions, and their acceptance can lead to certain normative conclusions.  For example, Adam Mossoff has argued that the bundle of rights model has led to a weakening of property rights.  If Adam is right, then we are leading students towards normative positions when we teach the bundle of rights approach.

All of this leads to the worry that how we frame issues in first-year property may shape student understanding in unpredictable ways.  I’m not sure there is any way to avoid this, and I think that professors should feel free to teach from a particular point of view.  Still, it makes me a bit unsettled.

Ben Barros

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

Katz on Abuse of Right

Larissa M. Katz (Queen's University - Faculty of Law) has posted A Jurisdictional Principle of Abuse of Right on SSRN.  Here's the abstract:

A principle of abuse of right means that an owner’s reasons for action, and not just the outcomes of his actions, affect the quality and so the legitimacy of his decisions as an owner. In this paper, I argue that the common law has produced a jurisdictional principle of abuse of right. Whereas civilian doctrines of abuse of right clearly serve perfectionist and communitarian goals, we can fit a jurisdictional principle of abuse of right within a conception of ownership as a self-seeking sphere of authority. On this account, an owner has jurisdiction to choose an agenda for his property based on his subjective determination of a worthwhile agenda in light of his own interests. An abuse of right occurs where an owner’s reasons change the character of his decision: when his sole reason for action is to cause harm to another, he is not acting on the basis of his subjective determination of a worthwhile agenda. He has abused his right because he has acted for the wrong reasons.

A jurisdictional principle of abuse of right establishes the maximal scope of freedom that can be justified in terms of our interest in exclusively setting the agenda for resources. The moral value of ownership is that it releases owners to act on their opinions about worthwhile uses in light of their own interests, and so to ignore the genuine disagreement that otherwise gets in the way of making decisions with distributive implications. This kind of authority can be justified by the value of a private sphere of freedom in which we are not forced to attend to the opinions or interests of others. An abuse of right principle marks the limits of what can be justified in this way: it ensures that owners are free to take charge of resources and to pursue what they think are worthwhile agendas, but it also ensures that ownership is no more than this.

Ben Barros

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

Lavine and Salkin on Religious Exercise and Community Planning

Amy Lavine and Patricia Salkin (Albany) have posted God and the Land: A Holy War Between Religious Exercise and Community Planning and Development on SSRN.  Here's the abstract:

This article is a brief introduction to The Albany Government Law Review sympoisum on God and the Land. This piece sets forth a brief history of the Religious Land Use and Institutionalized Persons Act (RLUIPA) setting the backdrop for the controversy that has surrounded the Act and its impact on religious entities and municipalities. Since the enactment of RLUIPA, the floodgates have burst open with litigation in attempts to clarify many ambiguities in the statute. The remainder of the piece provides a sneak preview of the articles conatined in The Albany Government Law Review by Professors Angela Carmella, Marci Hamilton, Shelley Ross Saxer and Elizabeth Reilly, and by practitioners Wendi Kellington, Dwight Merriam and Daniel Dalton.

Ben Barros

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

Ellickson on Federalism, Kelo, and Epstein

Robert C. Ellickson (Yale) has posted Federalism and Kelo: A Question for Richard Epstein on SSRN.  Here's the abstract:

The irrepressible Richard Epstein has been one of the most provocative and wide-ranging of contemporary legal scholars. According to Epstein’s own account, he started out as a natural rights libertarian, but then morphed slightly into a utilitarian. Other important strands of conservative thought have not commanded his consistent allegiance. Epstein has never shown any affinity, for example, to Burkean traditionalism. Moreover, Epstein’s interest in the structural principle of federalism, which favors the centralization of power where feasible, has run hot and cold. For example, he has sharply criticized the Supreme Court’s Kelo decision that declined to rule that a locality’s misuse of the power of eminent domain violated the federal Public Use Clause. This essay criticizes the merits of the redevelopment project at issue in Kelo, but also argues, on federalist principles, that the Supreme Court of the United States was correct in that instance to decide that it should not be on the front lines of the battle against eminent domain abuse.

Ben Barros

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

Katz on Red Tape and Gridlock

Larissa M. Katz (Queen's University - Faculty of Law) has posted Red Tape and Gridlock on SSRN.  Here's the abstract:

This paper concerns the role of property theory in explaining why so many people around the world control their assets informally, without recourse to the state. According to one influential view, owners and their assets are driven to the informal sector because of deficiencies in the form of ownership on offer in the formal sphere. Where too many people have the power to veto the optimal use of a resource, we have a form of ownership, an anticommons, that is deficient. But this account of informality proceeds from an overly capacious theory of ownership. On this view, an owner’s position is incomplete if she lacks the requisite inputs for a project that represents the optimal use of an object. Further, a person counts as an “owner,” albeit one locked in an anticommons, merely if she has the power to block the ends that others are able to achieve with an object. I argue that this view of ownership leaves us unable to see that owners are in a radically different position vis-à-vis other owners with the same authority over an object than they are vis-à-vis the state or other non-owners who may be in a position to block an owner’s valuable ends. The integrity of the concept of the anticommons is undermined if we define it in terms of veto-power over the ends for which a resource is optimally suited.

In this paper, I situate the concept of the anticommons within a larger theory of ownership as agenda-setting authority. Seen this way, what is important about an anticommons is its effect on an owner’s means rather than her ends. Whereas owners of private property are never guaranteed the ability to achieve their ends, owners in an anticommons are not even guaranteed the ability to exercise their very means, their agenda-setting authority. From this revised and much narrower concept of the anticommons, what follows is that talk of “gridlock” in the formal sphere makes sense just as a normative argument about the best distribution of ownership and regulatory authority rather than a conceptual argument rooted in the idea of ownership.

Ben Barros

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

A Statement of Progressive Property

Gregory S. Alexander (Cornell); Eduardo M. Penalver (Cornell); Joseph William Singer (Harvard); and Laura Underkuffler (Cornell) have posted A Statement of Progressive Property on SSRN.  Here's the abstract:

What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.

Ben Barros

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

Dana on Foreclosure and Fragmentation

David A. Dana (Northwestern) has posted The Foreclosure Crisis and the Anti-Fragmentation Principle in State Property Law on SSRN.  Here's the abstract:

Secured credit in homes has been divided and over-divided and spun into so many separate interests that economically rational, socially beneficial modifications of loans are impossible. The mortgage story is a new one but the excessive fragmentation of property and the creation of waste and inefficiency is not new. And our legal tradition of state property law has an answer, in the form of an anti-fragmentation principle. Consistent with this principle, federal government trustees should be authorized to review mortgages and, where modification would yield greater total return than foreclosure, modify the loans. Blind trustee review, moreover, can be achieved without formal condemnations of property interests or the creation of government liability for regulatory takings.

Ben Barros

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

Supreme Court Grants Cert on Regulatory Takings Case

The Supreme Court today granted cert in Stop the Beach Renourishment v. Florida Department of Environmental Protection. (HT: Jonathan Adler at the VC).  The Florida Supreme Court's decision is available here.

Argh!  My summer is already booked.  I don't have time for this.

UPDATE:  I read the Florida Supreme Court decision and couldn't figure out why they granted cert.  The case is all about state law issues.  Then I looked at the cert petitions, which focused on the judicial takings issue.  If the grant does raise judicial takings, then this has the potential to be a very important case.  For those new to the issue, check out the best article on the subject, Barton H. Thompson, Jr., Judicial Takings, 76 Virginia Law Review 1449 (1990).

Ben Barros

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

Sotomayor and Property Rights

Today's Times has an article on how property rights issues might come up in Judge Sotomayor's confirmation hearings.  The article focuses on the Second Circuit's opinion in Didden v. Port Chester.  The opinion was unsigned, but Judge Sotomayor was on the panel.  I'm on the record as thinking that Didden was wrongly decided, but I'm not sure how much the case says about Judge Sotomayor's actual views on property rights issues.  My biggest impression of the opinion is that it is just sloppy, as many unsigned appellate court opinions can be.  As I noted before, it isn't clear that either the members of the panel or the clerk who wrote the opinion had actually read the Supreme Court's opinion in Kelo.  There were also a number of procedural reasons why the District Court order should have been vacated -- the District Court granted a motion to dismiss without treating the plaintiff's allegations as true while giving credence to some of the defendants' testimony from a preliminary injunction hearing.  In this sense, Didden resembles the similarly unsigned opinion in Ricci v. DeStefano, the New Haven firefighters case that also appears to have been procedurally sloppy.  My impression from both cases is that they may be troubling more for the tendency of appellate courts to be lazy in getting rid of some cases through weak unsigned opinions than they may be on the merits of those cases.

Ben Barros

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

Pace Environmental Law Review Announces Goes to Peer-Review

I just got this announcement, which will be of interest to readers who publish in topics related to environmental law:

Established in 1982, PELR was one of the first scholarly environmental law
journals.  As of August 1, 2009, Pace Environmental Law Review (PELR) will use
a new Peer Review process to select articles for publication.  Submissions
will be reviewed internally and then forwarded to a select group of Peer
Reviewers - academics, practitioners, and experts in the field, including
members of Pace Law School's world-renowned environmental law faculty.  The
Peer Review process will offer new and distinctive opportunities to foster
continued debate and reflection upon some of the most pressing topics within
the field of environmental law. Articles selected for publication will benefit
from:

-       Expedited editorial processing of 8 to 10 weeks from acceptance.

-       Single-article hard copy publication.

-       Inclusion in a bound volume distributed to PELR's wide-ranging list of
subscribers.

All articles submitted to PELR must be original scholarship and not previously
published.  Exclusive submission not required. 

We invite authors to submit articles either via ExpressO or directly in either
MSWord or PDF format to the PELR Development & Acquisitions Editor at
pelracq@law.pace.edu.

For more information, please visit the website at http://www.law.pace.edu/pelr

I'm a fan of peer review, and I hope this experiment works well.  I'm a little surprised that they are not requiring exclusive submission, and will be interested to see how this works for them.

Ben Barros

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

Cornell Law Review on Progressive Property

The Cornell Law Review has a major symposium on "progressive property."  It begins with a joint statement by Greg Alexander, Eduardo M. Penalver, Joseph William Singer, and Laura S. Underkuffler.  Then follow articles on The Social-Obligation Norm in American Property Law by Gregory S. Alexander and Land Virtues by Eduardo M. Peñalver.  

The responses are Virtue and Rights in American Property Law by Eric R. Claeys; A Few Questions About the Social Obligation Norm by Jedediah Purdy; Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law by Henry E. Smith; Should Property Scholars Drop Economics for Virtue?  A Skeptical Comment by Katrina M. Wyman.  There is also an essay, Democratic Estates: Property Law in a Free and Democratic Society by Joseph William Singer and, finally, a relpy, The Complex Core of Property, by Gregory S. Alexander.

Alexander's lead article deserves a lot of attention; I hope to devote some time to it later in the summer, though I'll add two things right now.  First, it comes at a time when the political winds may be (emphasis on may be) blowing his way.  So Alexander may be in a position to have his ideas heard in a way that hasn't been possible for several decades.  Second, I think that one could--and in fact Alexander has in some ways done this already in Properiety and Commodity--find a lot of the pieces of what he speaks about as the social obligations of property in American history.  For me as a historian, one interesting question is which pieces of property's role--as social obligation or something else--has been dominant over time.  Lots of fun to be had in talking about all this!

Alfred L. Brophy