Friday, April 21, 2006

Weekly Top Ten

It's been a crazy semester, and I've been neglecting our Weekly Top Ten list of the most-downloaded recent property papers on SSRN.  Now that exams are almost upon us, I should do a better job -- blogging is a great break from grading.  Actually, pretty much anything is a great break from grading . . .

1. (223) The Effect of Community Gardens on Neighboring Property Values, Vicki Been and Ioan Voicu (New York University School of Law)

2. (125) The Green Costs of Kelo: Economic Development Takings and Environmental Protection, Ilya Somin and Jonathan H. Adler (George Mason University School of Law and Case Western Reserve University School of Law)

3. (83) The Tragedy of the Commons and the Myth of a Private Property Solution, Amy Sinden (Temple University - James E. Beasley School of Law)

4. (69) Jefferson Meets Coase: Train Sparks, the Harm-Benefit Distinction, and Natural Property Rights, Eric Claeys (Saint Louis University School of Law)

5. (62) Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass, Shyamkrishna Balganesh (Yale University Law School)

6. (53) A Rule against Perpetuities for the Twenty-First Century, Frederick R. Schneider (Northern Kentucky University - Salmon P. Chase College of Law)

7. (44) Relational Contracts in the Privatization of Social Welfare: The Case of Housing, Nestor M. Davidson (University of Colorado Law School)

8. (43) The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights, Mark Fenster (University of Florida - Fredric G. Levin College of Law)

9. (40) Eminent Domain After Kelo v. City of New London: An Argument for Banning Economic Development Takings, Charles E. Cohen (Capital University Law School)

10. (34) 'To Pursue any Lawful Trade or Avocation': The Evolution of Unenumerated Economic Rights in the Nineteenth Century, James W. Ely (Vanderbilt University School of Law)

Ben Barros

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April 21, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Roark on Kelo

Marc L. Roark (Duke University) has posted The Constitution as Idea: Defining Describing Deciding in Kelo in the bepress legal repository.  Here's the abstract:

In June 2005, the Supreme Court in a Five to Four Decision marked its most controversial decision in recent memory. The case of Kelo v. City of New London, set off a fire storm of response to the Court’s ruling that economic development takings satisfied the Fifth Amendment. This essay is about Kelo. It is about how the Court uses words, how the defining ability of words create institutional space in which the Court operates, and which defines things beyond the words.

Ben Barros

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April 21, 2006 in Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (1)

Thursday, April 20, 2006

New Orleans Rebuilding

For those following post-Katrina issues, John Lovett (Loyola-New Orleans and Chair of the AALS property section) has an op-ed in the Times Picayune on some aspects of proposed rebuilding policies.

Ben Barros

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April 20, 2006 in New Orleans | Permalink | Comments (0) | TrackBack (0)

Look to your left . . .

And you will see that Al Brophy, who has been guest blogging here for the past month or so, has become a contributing editor to this blog.  Welcome, Al, and thanks for your great posts so far.

Ben Barros

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April 20, 2006 in About This Blog | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 19, 2006

Images of Property in American and Hawaiian Landscape Art

Colenotch_3 Last fall I posted a little bit about a lecture that I give to my property students at the end of the year, about images of property in landscape art.  As the end of the year is fast-approaching, I dusted off those notes and changed them up a bit, too, in memoriam of Augusto Camara, a student at the University of Hawaii Law School who recently passed away.

This year I began with Ralph Waldo Emerson's discussion of the centrality of property to America in his 1841 address, "The  Conservative":

Now you touch the heart of the matter, replies the reformer. To that fidelity and labor, I pay homage. I am unworthy to arraign your manner of living, until I too have been tried. But I should be more unworthy, if I did not tell you why I cannot walk in your steps. I find this vast network, which you call property, extended over the whole planet. I cannot occupy the bleakest crag of the White Hills or the Allegheny Range, but some man or corporation steps up to me to show me that it is his.

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April 19, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 18, 2006

Justice Stevens on Kelo

I just received in the mail the latest issue of the Fordham Law Review containing the papers delivered at a symposium on the jurisprudence of Justice Stevens.  At nearly 1,000 pages long, it would make a good doorstop or blunt instrument for a murder mystery.

I just read Justice Stevens's remarks delivered at the symposium, Learning on the Job, 74 Fordham L. Rev. 1561 (2006).  The Justice's remarks contain an interesting discussion of the evolution of his views on several constitutional issues during the course of his time on the Court.  His remarks on Kelo might be of particular interest to readers of this blog.  After discussing Lingle v. Chevron, Justice Stevens remarked:

Whereas Lingle corrected a past misunderstanding, the second case, Kelo v. City of New London, which upheld an integrated development plan designed to revitalize a city's economy, adhered to precedent while noting that different plans may well pose questions for the future.

Though much criticized, the Kelo opinion was surely not an example of "judicial activism" because it rejected arguments that federal judges should review the feasibility of redevelopment plans, that they should evaluate the justification for the taking of each individual parcel rather than the entire plan, and that they should craft a constitutional distinction between blighted areas and depressed areas targeted for redevelopment.  Indeed, the dissent criticized the opinion for being unduly deferential to the decisions of state legislative and administrative bodies.

A second criticism, however, brings me back to the thought that I expressed at the outset of these remarks.  It is the criticism that the opinion was not faithful to--indeed, that it was "wholly divorced from"--the text of the Constitution.  The relevant constitutional text provides that private property shall not "be taken for public use, without just compensation."  As Justice O'Connor explained in her Lingle opinion, that text does not prohibit any taking of private property, but instead merely places a condition on the exercise of the takings power.  Thus, just as a purely literal reading of the text of the Due Process Clause would confine its coverage to procedural safeguards and entirely eliminate its substantive protections, including those that have made provisions of the first ten Amendments applicable to the states, a purely literal reading of the Takings Clause would limit its coverage to a guarantee of just compensation.

We have nevertheless assumed that the reference to "public use" does describe an implicit limit on the power to condemn private property, but over the years we have frequently and consistently read those words broadly to refer to a "public purpose."  Because one of the opinions rejecting "use by the public" as the proper interpretation of those words was authored by Justice Holmes, and because the debate between Holmes and Brandeis in the Pennsylvania Coal case demonstrates that Brandeis's views with respect to takings were even more deferential than Holmes's, I am confident that both of them would have endorsed our holding in Kelo, just as both of them ultimately endorsed the doctrine of substantive due process.

To me, the most striking part of these remarks is the bold textual claim that the words "public use" in the Just Compensation Clause are an implicit, but not an explicit, limit on government power.  I'm not exactly sure what that means or why it would be significant.  Perhaps Justice Stevens is suggesting that any limiting impact of "public use" has been created by the Court, not the constitutional text, therefore justifying a broader reading of those words.  It is plausible to read "public use" as not being limiting at all, though that to say the least is a controversial position.  But I have particular difficulty with this intermediate concept of implicit limitation, and the suggestion that the application of such limitations is a matter of choice for the Court.

UPDATE:  A version of Justice Stevens's remarks is available here.  The text above has been slightly modified from my original post.

Ben Barros

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April 18, 2006 in Takings | Permalink | Comments (1) | TrackBack (2)

Aloha Jurisprudence

Kailuabeachbft_1 Following David Callies' advice, I’ve been teaching (and reading about) a series of cases, mostly about native Hawaiian customary rights–to cross land for fishing and beach access and for gathering of agricultural products for personal use.  Some of this appears in the Hylton, Callies, Franzese, and Mandelker casebook, Property Law and the Public Interest, but I don't think any other casebooks have serious discussion of them.  [Gordon Hylton's  Law School Rankings, propertyprof readers will recall, has been the subject of much discussion recently.] That's unfortunate, because there may be some lessons in those cases for those of us who live in the continental United States.

There's some terrific scholarship on Hawaiian legal history--running from Mari Matsuda's early work on "Law and Culture in the District Court of Honolulu, 1844-1845: A Case Study of the Rise of Legal Consciousness," 32 American Journal of Legal History 16 (1989) to Lilikala Kameeleihiwa's Native Lands, Foreign Desires, to Patrick V. Kirch and Marshal Sahlins' Anahulu: The Anthropology of History in the Kingdom of Hawaii.  And though it doesn't relate so much to legal history, you might add Sahlins' How 'Natives' Think: About Captain Cook, For Example.  For a historian of property law there's a particularly important event: the Great Mahele of 1848-–the transition from native patterns of ownership (in which all land was held by the king) to common law ownership. Stuart Banner’s written a lot about this recently.  The records of the Great Mahele are a gold mine for historians and anthroplogists, because as people testify about their land (and thus make out a case for being assigned rights to it), they tell much about who lived there and how long and how they used the property and thought about their relationships to other occupiers of the land.  Important works mining those records include Native Lands, Foreign Desires and Jocelyn Linnekin's Sacred Queens and Women of Consequence: Rank, Gender, and Colonialism in the Hawaiian Islands.

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April 18, 2006 in Property Theory | Permalink | Comments (1) | TrackBack (1)

Monday, April 17, 2006

Fennell on Properties of Concentration

Lee Anne Fennell (University of Illinois College of Law; New York University School of Law) has posted Properties of Concentration on SSRN.  Here's the abstract:

Although collective action problems in spatial association can produce undesirable outcomes like concentrated poverty, policy responses are rarely calibrated to address the underlying scarcities in a flexible or fine-grained manner. This paper examines what it would mean to view problems of spatial association as resource dilemmas. I argue that the rich literature surrounding the allocation and protection of entitlements can and should be used to gain analytic traction on group formation decisions that are capable of producing sustained, problematic spatial concentrations. My analysis centers on a single context: concentrated poverty in metropolitan neighborhoods. However, the article probes outward from that focal point to consider the relationship between property and association more generally and to identify conceptual stopping points for the application of property theory to matters of association. By doing so, I make the case for an appropriately limited notion of associational entitlements.

Ben Barros

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April 17, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, April 16, 2006

NY Times on Property in the Body

The Times Magazine today has an outstanding story on property in human tissue.  Among other things, it provides context for Moore v. Regents.  A must read for anyone who is interested in property in the body or who teaches Moore in first year property.

Ben Barros

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April 16, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Sandefur on post-Kelo Backlash

Tim Sandefur has an interesting new post on the Kelo backlash, which is largely pessimistic about the actual impact of the reform laws that have been enacted so far.  I completely agree with his view that reform statutes that don't address blight takings won't accomplish anything of substance.  Definitely worth a look.

Ben Barros

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April 16, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)