PropertyProf Blog

Purple Pain for Prince's Landlord

How could I possibly improve on E! On-Line's headline?  The upshot here is that Prince is being sued by his landlord for redecorating the house he is renting.  According to E!:

The ever-eccentric Grammy-winning Rock and Roll Hall of Famer has been sued by Utah Jazz forward Carlos Boozer for allegedly pimping out Boozer's West Hollywood home, which the diminutive rock star is renting for $70,000 a month.

Boozer originally filed a complaint against the Purple Rain singer in January, alleging him to be a less than ideal tenant, violating the terms of his eight-month lease via a series of self-promotional home improvements. . . .

Boozer claims Prince did an unauthorized extreme makeover to the 10-bedroom, 11-bath property, including "painting the exterior of the [house] with purple striping, 'Prince symbol,' and numbers 3121."

Thanks to the Smoking Gun for getting the goods (i.e., the complaint) on this one. But, um, he is, afterall, Prince.  Why not just buy the place (or one like it)?

Sounds like the makings of a great exam question to me.  This one's going to be talked about in property classes for years. 

One final note: if mtvU's "Stand In" Show wants to bring Prince to my property class this semester, I know we can accommodate him.  Perhaps a few days in Honolulu is just what Prince and the mtvU crew need.

Alfred L. Brophy

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What Case Should Be First?

Thanks, Ben, for the kind introduction and the opportunity to visit with propertyprof.  I thought that I might begin my time as a guest here with a question about beginning: what case should be the first one property students read?  I think the first one I read ‘lo those many years ago was Pierson v. Post and I suspect that a lot of professors continue to make that choice.  There’s something to be said for this.  Even if you’re not a hunter or "into" hunting, there’s something pretty engaging about the question: does a fox belong to the person who’s pursing it or the person on whose land it is killed?  And as recent research has shown, the question (and presumably) answer has a lot to do with conflicts between long-existing users and newer users.  Plus, it has all those great authorities and it’s a nice example of what Karl Lwellyn called the “grand style”–an opinion decided by discussion of first principles and consideration of economics and society.

Yet, I abandoned (ha, ha) Pierson some years ago.  Even if you want to use the conflict between old and new uses, between vested and dynamic property, I think there are better ways of getting at it.  I find Ghen v. Rich more accessible and better because it arises in the context of a business of whale-hunting, rather than a sport.  One might also (though no casebook does) use Charles River Bridge v. Warren Bridge, to bring out the static versus dynamic rights.

The more recent trend is to begin with Johnson v. McIntosh, which was popularized (though others may have pioneered it) by the Dukeminier and Krier and Singer casebooks.

I’ve always liked teaching Johnson and I’ve become increasingly convinced of its utility to begin property: it’s about a topic that students seem to enjoy learning about, it explores the importance of considerations of precedent and prescription, the sources of property law, and also the role (or non-role) of considerations of justice.  I think those are important lessons for students and it’s good to talk about fundamental issues in property (like why we own the United States and not the native nations) and how courts have resolved those issues.  Johnson has the additional virtue of containing important law, as Tee Hit Ton demonstrated.  Moreover, Marshall’s both realistic about the limits of his power to decide otherwise and (and I think this is often missed by students) sympathetic towards Natives.  Even in one of the classic passages where Marshall justifies the claim to native lands, he acknowledges that the assertion of "discovery" is pretentious and that taking native land may be opposed to "nature justice":

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be *592 adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.

In addition to being a well-reasoned defense of the status quo, it’s a good introduction to meta-themes in property.  And if you're interested in a very fine introduction to Johnson, I recommend highly Lindsey Robertson's Conquest by Law: How the Discovery of America Dispossessed the Native Peoples of Their Lands, published last year by Oxford.

Yet, I wonder if there are other cases that explore those issues as well?  I think we could begin with a case about how courts dealt with ownership of humans.  There are a lot of cases one might use here, but I think the best may be Justice Marshall’s opinion in The Antelope, where he deals with a claim to freedom by some slaves.  The background is somewhat complex (which is, of course, one reason to not assign it).  The Antelope involved the international slave trade and claims by many people to the cargo of approximately 250 humans aboard the ship.  The Antelope was captured by a United States revenue ship off the coast of Florida, with human cargo who had been taken from ships flying the flags of Spain, Portugal, and even the United States.  The claimants included the United States, Spain, Portugal, and the captain of the privateer.

The case posed a conflict, as former Attorney General William Wirt argued to the Supreme Court, of “a claim to freedom or a claim to property.”  Chief Justice Marshall’s opinion phrased the conflict as one between natural law and the law of nations.  While the slave trade might be viewed as abhorrent, it was not outlawed as part of the law of nations.  Long prescriptive use had sanctioned the trade, so that Marshall would recognize the rights of Spain (and Portugal, though no one appeared to claim the Portugese slaves).  After surveying the history of slavery, Marshall stated that “Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful.”  Thus, as happened in Johnson, we receive a lesson in the sources of law–the importance of long-term use, of acquiescence in rules–and in the superiority of positive commands over notions of humanity.  It is an important positivist statement about the sources of property law and the power of those rules.  Marshall divides the opinion into questions of abiding by his duty of following law or “yielding to feelings which might seduce [him] from the path of duty.”  Marshall concluded that he had to follow the law:

Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favour of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, it was carried on without opposition, and without censure. A jurist could not say, that a practice thus supported was illegal, and that those engaged in it might be punished, either personally, or by deprivation of property.

The slaves designated as American were free, because the United States outlawed the slave trade and any slaves captured as they were being imported into the United States were freed.  Marshall required that Spain produce evidence to prove its claim to each slaves it claimed, so that by the end of the case, it was entitled to only about 50 of the people on The Antelope.

(The image is of an early eighteenth century French slave ship. I talk a little more about this topic in an essay, "Integrating Spaces: The Integration of The Legal History of Race into the Property Curriculum," which is appearing in the next issue of the Journal of Legal Education.  My colleauge Carol Brown used one part of the The Antelope--the trial court's use of a lottery as a way of determining who would be returned to slavery--as the starting point for a thoughtful essay on the role of lotteries in law.)

Alfred L. Brophy

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Brophy Blogging

I'm delighted that Alfred L. Brophy will be guest blogging here for a bit.  Brophy is professor of law at the University of Alabama, where he teaches property, wills, and remedies.  He is visiting this semester at the University of Hawaii.  His publications include Reconstructing the Dreamland:  The Tulsa Riot of 1921 (Oxford University Press, 2002) and Reparations Pro and Con (forthcoming later this year from Oxford).  He is currently working on the idea of equity in property jurisprudence.  I'm looking forward to his posts!

Ben Barros

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Cohen on Kelo

Charles E. Cohen (Capital University School of Law) has posted Eminent Domain After Kelo v. City of New London:  An Argument for Banning Economic Development Takings on SSRN.  Here's the abstract:

Last summer's U.S. Supreme Court decision in Kelo v. City of New London elicited angry responses from legislators, citizens and many scholars. The 5-4 decision held that the use of the eminent domain power to transfer non-blighted property to private entities for economic development satisfied the public use requirement of the Taking Clause. This article argues that the Kelo decision was correct as a matter of law, following naturally from U.S. Supreme Court precedent and consistent with prevailing judicial and legislative approaches to the public use question that pre-date the U.S. Constitution. Nonetheless, the practical result of existing public use doctrine is an eminent domain regime that frequently produces unjust and inefficient results, favors special interests over property owners, and provides inadequate protection of private property. After surveying the history of forced property transfers in the United States from the Colonial Era through the present, and analyzing the consequences of the present doctrine, the article calls for a ban on takings for economic development, preferably by state constitutional amendment.

Ben Barros

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Claeys on Jefferson and Coase

Eric Claeys (St. Louis University - School of Law) has posted Jefferson Meets Coase:  Train Sparks, Natural Rights, and Law and Economics on SSRN.  Here's the abstract:

This Essay uses train-sparks negligence cases to highlight tensions between traditional American tort common law and post-Coasean law and economics. In a train-sparks case, a railroad prima facie liable for negligence argues that the plaintiff was contributorily negligent by putting his stacks too close to the railroad’s tracks. Coase and other economists use such cases to illustrate standard economic analysis of torts problems, particularly bilateral incompatible-use disputes. The best common-law decisions in such cases use American natural-law/natural-rights theory to anticipate modern economic arguments - particularly Coase’s insight that common-law harms and benefits are merely reciprocal economic externalities.

The Essay argues that the difference between the common law/natural-rights approach and the economic approach to torts is primarily a difference between fundamentals and fine tuning. The leading common law train-sparks cases preferred fundamentals. They generated a hard distinction between harms and benefits because they designed property rights primarily to secure owners’ investment and labor and to accommodate the many conflicting uses to which similar property assets are put. By contrast, post-Coasean torts law and economics prefers fine-tuning. It prefers to view disputes through the reciprocal-externality paradigm because it seeks to maximize the total product of the competing property uses. That focus on productive efficiency, however, abstracts away from less quantifiable but still important policy concerns about investment and ordering.

The Essay teaches two important lessons. First, it suggests that moral theories of property can develop considered responses to the skepticism many economists show toward moral harm-benefit distinctions. Second, it suggests that law and economists might want to consider other forms of efficiency when they analyze bilateral incompatible use conflicts. Coase and others have focused mainly on productive efficiency; complete economic analysis might also want to consider dynamic efficiency and the efficient minimization of the information costs associated with private property.

Ben Barros

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McFarlane on the New Inner City

Audrey McFarlane (University of Baltimore - School of Law) has posted The New Inner City: Class Transformation, Concentrated Affluence and the Obligations of the Police Power on SSRN.  Here's the abstract:

This article examines the role of local government in the process of urban spatial restructuring (gentrification). In light of the disparate needs and competing interests of different racial and socioeconomic groups seeking a place in the city, there are limits to local government's ability to facilitate redevelopment projects that deliberately aim to accomplish class transformation and exclusively reconfigure the inner city for the affluent. These limits exist by virtue of implied obligations of the police power.

Ben Barros

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McKenna on Normative Foundations of Trademark

Mark P. McKenna (St. Louis University Law School) has posted The Normative Foundations of Trademark Law on SSRN.  Here's the abstract:

This paper challenges the conventional wisdom that trademark law traditionally sought to protect consumers and enhance marketplace efficiency. Contrary to widespread understanding, early trademark cases were decidedly producer-centered. Trademark claims, like all unfair competition claims, sought to protect a producer from illegitimate attempts to divert its trade, and consumer deception was relevant in these cases only to the extent it was the method by which trade was diverted.

Moreover, American courts from the very beginning protected a party against improperly diverted trade by recognizing property rights derived from a natural rights theory of property. That traditional approach dictated very specific and workable restrictions on the scope of trademark protection. In fact, despite repeated claims that modern trademark law is illegitimate because it has lost its consumer focus, the expansion of trademark law in the twentieth century was more a consequence of the rise of consumer protection rhetoric than a rejection of that view.

This paper argues that the broad protection trademark law now provides deserves sustained scrutiny, but that criticisms can be leveled against modern doctrines must stand on their own merits and fairly confront the policy goals of modern trademark law. The criticisms cannot draw their normative force by pointing to "traditional" principles that did not exist.

Ben Barros

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