November 18, 2005
Blumm and Ritchie on the Rule of Capture
Michael C. Blumm and Lucus Ritchie (both of Lewis & Clark Law School) have posted The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife on SSRN. Here is the abstract:
The law of capture, a central feature in Anglo-American property law, has deep historical roots, running at least to Rome, where capturers could create private property in res nullius resources like wildlife (ferae naturae) if they did so consistent with Roman law (imperium). When transfered to English common law, capture doctrine was laden with pervasive restrictions imposed by royal prerogatives, as the English king was said to own wildlife that had been unowned in Rome. Thus, royal forests and hunting franchises imposed substantial limits on wildlife capture.
In early America, the lack of royal prerogatives seemed for a time to sanction a free-wheeling rule of wildlife capture unknown in England. For example, the English rule allowing landowners to exclude capturers was largely discarded, at least with respect to unfenced lands. But as the overharvesting consequences of expansive capture rules became apparent, American courts rediscovered and republicanized the royal prerogatives into the concept of state ownership of wildlife. This 19th century development was grounded on both sovereign power and public ownership principles, or sovereign ownership, a concept endorsed by the Supreme Court in 1896.
Although during the 20th century the Supreme Court repeatedly limited the state ownership of wildlife where it conflicted with federal law - and finally overturned the case that endorsed the doctrine in 1979 - today nearly every state claims ownership of wildlife. This article examines this phenomenon and explains both the limits and utility of the state ownership doctrine in the 21st century. We claim that although modern notions of the police power justify expansive state regulation of wildlife, the state ownership doctrine retains vitality because it may bolster or enlarge police power regulation by 1) imposing affirmative duties to protect wildlife, 2) empowering states to collect damage for damages to wildlife, and 3) offering an affirmative defense against landowner claims of constitutional takings due habitat protections.
Weekly Top Ten
Not much change from last week, though Lior Strahilevitz's new article Information Asymmetries and the Rights to Exclude makes its first appearance on the top 10.
1. (283) How City Hall Causes Sprawl: A Case Study, Michael Lewyn (George Washington University Law School)
2. (228) How Overregulation Creates Sprawl (Even in a City without Zoning), Michael Lewyn (George Washington University Law School)
3. (213) Suburban Sprawl, Jewish Law, and Jewish Values, Michael Lewyn (George Washington University Law School)
4. (192) Sprawl, Growth Boundaries and the Rehnquist Court, Michael Lewyn (George Washington University Law School)
5. (107) Home as a Legal Concept, Benjamin Barros (Widener University - School of Law)
6. (86) Property Rights in Spectrum: Taking the Next Step, Dale Hatfield (University of Colorado at Boulder) and Phil Weiser (University of Colorado at Boulder - School of Law)
7. (81) Information Asymmetries and the Rights to Exclude, Lior Strahilevitz (University of Chicago Law School)
8. (75) Testimony Before Pennsylvania House of Representatives State Government Committee Re: Eminent Domain, Benjamin Barros (Widener University - School of Law)
9. (56) Leasing, Ability to Repossess, and Debt Capacity, Andrea L. Eisfeldt and Adriano A. Rampini (both from Northwestern University - Department of Finance)
10. (51) Bargaining for Takings Compensation, Abraham Bell and Gideon Parchomovsky (Bar Ilan University - Faculty of Law and University of Pennsylvania - School of Law)
November 17, 2005
The Onion on Judicial Activism
The Onion has a typically brilliant post up on judicial activism that is worth checking out. Be warned that the context is a wet t-shirt contest, but the post is a great send-up of the current "debate" about activism.
How Blogs Make Google a Legitimate Legal Research Tool
Dan Solove has an amusing post up on some of the odd Google searches that have directed people to Concurring Opinions. I suspect that some of the oddities are the result of comment and trackback spam. Blogs tend to rank very high in Google searches because blogs tend to link to each other. Spammers try to take advantage of this fact by sending spam comments and trackbacks; I'm not clear on whether they are hoping that a person Googling the spam topic will click on the link in the comment or whether they are trying to increase the rank of their own site by linking to it from a blog. In any event, I've deleted spam comments in the last couple of days about young Asian shemales and low mortgage interest rates. I've also had some odd trackback spam in the last couple of days.
Maybe because I've been deleting these spam comments, I haven't been getting too many odd Google searches. I do get lots of hits from searches on selling body parts because of this post in property in the body. But lately it seems that more than anything I've been getting a lot of hits for searches on Berman v. Parker, because of this post on the Supreme Court's conference notes in that case. This got me thinking about a frequent topic at faculty lunches -- law students' habit of starting any research project with a search from Google or Ask Jeeves. This habit usually drives faculty nuts, and even now I don't think that this type of search is a good place to start legal research. But if you in fact are researching Berman v. Parker, then my post on the conference notes would be a good thing to read. Unless you are a regular reader of this blog, the only way to find it is through an internet search. With the constant expansion of the legal blogosphere, researchers might miss some very useful commentary if they don't do an internet search. And, on a related topic, they would also miss the most current legal scholarship on almost any subject if they don't include an SSRN search in their research. It all makes me wonder what legal research will look like in a year or two.
[As always, and in part because of comment spam, comments are held for approval, so there might be a delay in posting]
November 16, 2005
Madison's Essay Property
On the left side of the blog, under the Resources heading, I've posted a PDF of James Madison's 1792 essay Property. The essay is short (only a bit more than two pages) and can be a helpful teaching resource -- I use it in both my first-year Property class and my Property Theory seminar. In my seminar, I focus on the broad conception of property articulated by Madison. In my Property class, I include the essay in the unit on regulatory takings. The following language is most relevant to the takings discussion:
If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the inference will have been anticipated, that such a government is not a pattern for the United States.
Madison's distinction between direct and indirect violations of property suggests to some readers (most notably Bill Treanor) that Madison believed that indirect violations of property (e.g., regulations) were morally wrong but did not fall within the scope of the takings clause. I usually raise this issue during discussion of footnote 15 in Lucas v. South Carolina Coastal Council, where Justice Scalia notes, but declines to follow, the original understanding of the Just Compensation Clause.
I will post additional resources in the near future. If there is anything you would like me to add, please leave a comment or send me an e-mail. [As always, comments are held for approval, so there might be some delay in posting]
November 15, 2005
Strahilevitz on the Right to Exclude
Lior Strahilevitz (University of Chicago Law School) has posted Information Asymmetries and the Rights to Exclude on SSRN. We covered a part of this article in my Property Theory seminar last week as part of a unit on the right to exclude. Highly recommended! Here is the abstract:
This article addresses a central question in property theory: In a world where an owner can exercise the right to exclude third parties from his resource in any of several ways, what causes him to adopt a particular exclusionary strategy?
Orthodox property scholarship has focused a great deal of attention on those exclusion rights that arise under trespass law. This paper suggests that much can be gained from thinking about exclusion with a bigger tent approach, one that is sensitive to the ways in which non-trespass-based exclusion rights substitute for in rem, trespass-based rights. Non-trespass-based exclusion rights include exclusionary vibes, which are communicative signals that make undesirable third parties feel unwelcome, as well as exclusionary amenities, which impose a disproportionate tax on the undesirable by bundling permission to use a resource with an obligation to pay for a separate, polarizing resource.
It turns out that information asymmetries often drive owners' decisions about what exclusion strategies to adopt. Where third parties seeking to use property possess private information about their own preferences, behaviors, and intentions, and the owner cannot discover this private information at a low cost, the owner is likely to delegate the exclusion function to the would-be entrants by employing non-trespass-based exclusion strategies. By contrast, where there is little private information involved, or private information can be discovered by the owner at a low cost, the owner is more likely to employ trespass-based exclusion rights.
This relationship between information asymmetries and the choice of exclusion strategies suggests new possibilities for creative government intervention in those settings where particular exclusion strategies conflict with public policy interests. It is well understood that the government can impose outright prohibitions, proscribing some forms of exclusion and permitting other forms. This is the strategy the government has adopted in the housing discrimination arena. Alternatively, the government can adopt subtler but equally effective strategies that regulate access to private information as a means of altering owners' incentives to exclude. Megan's Law is the most prominent and far-reaching example of the subtle approach, although many aspects of information privacy law affect owners' incentives in much the same way. In short, by rendering private information public or public information private, the state can alter, sometimes radically, the mix of exclusion strategies that resource owners employ.
November 14, 2005
Rescuing the Scalia Bobblehead
As a new subscriber to The Green Bag, one of my colleagues was entitled to a Justice Scalia bobblehead. The bobbleheads were distributed this weekend at the AALS Hiring Conference (aka, the "meat market"), so my colleague asked the members of our hiring committee to pick his bobblehead up for him. Sadly enough, it appears that some liberal members of the faculty got their hands on the bobblehead before it was delivered, leaving it in this embarrassing state:
Thinking that this display went a bit too far, I sprung into action and tried to restore the bobblehead's dignity:
Now, isn't that better?
[comments as always are held for approval, so there may be a delay in posting]
A3G is a Guy!
November 13, 2005
Brophy on Property and Art
Over at Concurring Opinions, Al Brophy has a great post on Images of Property In American Landscape Art. Check it out.
Ely on Epstein
James W. Ely Jr. (Vanderbilt University - School of Law) has posted the Impact of Richard Epstein on SSRN. Here's the abstract:
This essay examines the impact of the scholarship of Professor Richard A. Epstein in the debate over the constitutional protection of property rights. It suggests that Epstein has had little direct impact on judicial decisions pertaining to property rights, but that he has had significant influence in changing the terms of debate over the place of property in the constitutional order. The essay points out that Professor Epstein's influence extends far beyond the academy and has helped to trigger a national dialogue over the rights of owners.