PropertyProf Blog

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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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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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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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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Images of Property in American and Hawaiian Landscape Art

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.

Emerson continued:

Now, though I am very peaceable, and on my private account could well enough die, since it appears there was some mistake in my creation, and that I have been _mis_sent to this earth, where all the seats were already taken, -- yet I feel called upon in behalf of rational nature, which I represent, to declare to you my opinion, that, if the Earth is yours, so also is it mine. All your aggregate existences are less to me a fact than is my own; as I am born to the earth, so the Earth is given to me, what I want of it to till and to plant; nor could I, without pusillanimity, omit to claim so much. I must not only have a name to live, I must live. My genius leads me to build a different manner of life from any of yours. I cannot then spare you the whole world. I love you better. I must tell you the truth practically; and take that which you call yours. It is God's world and mine; yours as much as you want, mine as much as I want. Besides, I know your ways; I know the symptoms of the disease. To the end of your power, you will serve this lie which cheats you. Your want is a gulf which the possession of the broad earth would not fill. Yonder sun in heaven you would pluck down from shining on the universe, and make him a property and privacy, if you could; and the moon and the north star you would quickly have occasion for in your closet and bed-chamber. What you do not want for use, you crave for ornament, and what your convenience could spare, your pride cannot.

(Ok, that's a little more than used in class, but I wanted to give you the flavor.)  Then I showed a slide of Thomas Cole's 1839 Notch in the White Mountains from the National Gallery's collection (above, right).  Then I went to Ralph Waldo Emerson’s discussion in Nature of the way that  though individuals own parcels of property, poets "own" the landscape:

The charming landscape which I saw this morning, is indubitably made up of some twenty or thirty farms. Miller owns this field, Locke that, and Manning the woodland beyond. But none of them owns the landscape. There is a property in the horizon which no man has but he whose eye can integrate all the parts, that is, the poet. This is the best part of these men's farms, yet to this their warranty-deeds give no title.

Landscape painters also captured farms and parcels together, such as Thomas Cole's Ox Bow in the Connecticut River (above, right).  The slides I use are largely of landscape paintings that show not just nature, but property being used.  The theme here is the way that Americans love property–-and how we celebrate the way that we impose our stamp on nature.  The antebellum landscape painters are my favorite.

Lest you think that this is too untethered to property and judging, Justice Levi Woodbury, in a speech to the Dartmouth Phi Beta Kappa Society in a speech called, of all things, Progress, spoke about Thomas Cole's series of five pictures, "The Course of Empire." Justice Woodbury spoke of how Cole depicted nations: "starting first in the rudeness of nature; then maturing to high refinement and grandeur till, amid the ravages of luxury, time and war, sinking into utter desolation."  (Todd Zywicki and David Brooks have both recently revived interest in addresses to college students, though in a somewhat later period than Justice Woodbury's talk.)

 

My favorite landscape painting is Ashur Durand's 1853 Progress, to the left, which has lots of tropes of progress--the telegraph lines, a peddler, the cattle being driven to market, steam ships, a canal.... And the native Americans are looking on from the lower left edge.  It captures well how much Americans are excited about the use of land, and that's reflected in the optimism about economic and geographic expansion.  (It's also housed in the fabulous Warner Art Museum in Tuscaloosa, Alabama.  So next time you're in Alabama, make a trip to see it.)   (Angela Miller's Empire of the Eye is a great source on this general topic.)

You can link the images of art with the literature of the time, too.  Henry David Thoreau wrote in Walden about the place of locomotives in American life.  Where the image of Walden is of a secluded place, that solitude was often disturbed by the train whistle and then the sounds of the engine:

The whistle of the locomotive penetrates my woods summer and
winter, sounding like the scream of a hawk sailing over some
farmer's yard, informing me that many restless city merchants are
arriving within the circle of the town, or adventurous country
traders from the other side.  As they come under one horizon, they
shout their warning to get off the track to the other, heard
sometimes through the circles of two towns.  Here come your
groceries, country; your rations, countrymen!  Nor is there any man
so independent on his farm that he can say them nay.  And here's
your pay for them! screams the countryman's whistle; timber like
long battering-rams going twenty miles an hour against the city's
walls, and chairs enough to seat all the weary and heavy-laden that
dwell within them.  With such huge and lumbering civility the
country hands a chair to the city.  All the Indian huckleberry hills
are stripped, all the cranberry meadows are raked into the city. Up
comes the cotton, down goes the woven cloth; up comes the silk, down
goes the woollen; up come the books, but down goes the wit that
writes them.

When I meet the engine with its train of cars moving off with
planetary motion -- or, rather, like a comet, for the beholder knows
not if with that velocity and with that direction it will ever
revisit this system, since its orbit does not look like a returning
curve -- with its steam cloud like a banner streaming behind in
golden and silver wreaths, like many a downy cloud which I have
seen, high in the heavens, unfolding its masses to the light -- as
if this traveling demigod, this cloud-compeller, would ere long take
the sunset sky for the livery of his train; when I hear the iron
horse make the hills echo with his snort like thunder, shaking the
earth with his feet, and breathing fire and smoke from his nostrils
(what kind of winged horse or fiery dragon they will put into the
new Mythology I don't know), it seems as if the earth had got a race
now worthy to inhabit it.  If all were as it seems, and men made the
elements their servants for noble ends!  If the cloud that hangs
over the engine were the perspiration of heroic deeds, or as
beneficent as that which floats over the farmer's fields, then the
elements and Nature herself would cheerfully accompany men on their
errands and be their escort.

I watch the passage of the morning cars with the same feeling that I do the rising of the sun, which is hardly more regular. Their train of clouds stretching far behind and rising higher and higher, going to heaven while the cars are going to Boston, conceals the sun for a minute and casts my distant field into the shade, a celestial train beside which the petty train of cars which hugs the earth is but the barb of the spear.  The stabler of the iron horse was up early this winter morning by the light of the stars amid the mountains, to fodder and harness his steed.  Fire, too, was awakened thus early to put the vital heat in him and get him off.  If the enterprise were as innocent as it is early!  If the snow lies deep, they strap on his snowshoes, and, with the giant plow, plow a furrow from the mountains to the seaboard, in which the cars, like a following drill-barrow, sprinkle all the restless men and floating merchandise in the country for seed.  All day the fire-steed flies over the country, stopping only that his master may rest, and I am awakened by his tramp and defiant snort at midnight, when in some remote glen in the woods he fronts the elements incased in ice and snow; and he will reach his stall only with the morning star, to
start once more on his travels without rest or slumber.  Or perchance, at evening, I hear him in his stable blowing off the superfluous energy of the day, that he may calm his nerves and cool his liver and brain for a few hours of iron slumber.  If the enterprise were as heroic and commanding as it is protracted and unwearied!

Ok, that's more than I use of Walden, but it fits well with the theme of progress and the way that railroads promote and illustrate that progress--and how they disturb nature at the same time.  I use George Inness' Lackawana Valley (above, right) to go along with Thoreau's discussion of the railroad. There is an grand depiction of the place of the railroad in conquering space.

Here're the changes I made for Augusto.  A visit to the Honolulu Academy of Arts taught me that there’s a whole lot more, which I’ve been ignoring.  They have a terrific exhibit on right now, treasures that Captain Cook’s crew brought back to Great Britain.  (The captain himself didn't make it home; he died in what is often termed a misunderstanding. On further inspection it appears that his men took a native noble hostage and that brought down the wrath of the natives.)  The treasures found their way into Germany–-and so they’re now on loan from several German museums. The exhibit is absolutely fascinating; I highly recommend it.  There are clothes, including a stunning mourning dress and simple but beautiful and elegant garb.  They ought to inspire some modern clothes designer; they're simply beautiful.  A lot is made out of coconut fibre.  (I wrote about this a while ago, in the post "Who Owns (and will profit from) Native Culture?")

The Captain Cook exhibit is what got me in the museum.  But that’s aside from my key point: the Honolulu Art Museum has a fantastic collection of landscape art from the early nineteenth century.  And, though people who write on antebellum paintings rarely write about Hawaiian landscape, there are some great parallels between what’s happening on the mainland and on the islands.  (Professor  Laura Ruby of the University of Hawaii teaches about this.) For much of the landscape art of Hawaii from the early nineteenth century is, as that of the Hudson River School, concerned with nature and with humans' imprint on it.

Due to concerns about copyright for the images of Hawaii, I have posted only links to pictures, rather than the images themselves. Please click on the links--they're worth the look.

James Gay Sawkins’ 1852 Hilo from the Bay illustrates well the humans (and particularly westerners’) impact on nature.  In the front are two men in a canoe; there are fishing nets on the middle left; on the middle right are schooners; in the background is the town of Hilo.  The National Library of Australian has a copy of Sawkins' Hilo Landing and of his My residence at Waiakapu.

Perhaps my favorite is Enoch Wood Perry’s Rose Ranch on the island of Maui, which depicts . . . a sugar factory.  Check out the smokestack!  What an amazing and unexpected site.  Men riding on horseback, white-washed buildings, and the sugar factory in the background.  When people went to Hawaii they painted images of property--as one would expect--but often they are images of people imposing their stamp on the land.  Where Leo Marx wrote of the Machine in the Garden, for artists in Hawaii, it's the machine in paradise.  Think of this, in a remote part of the world, Americans before the Civil War were putting down sugar plantations and cattle on the land.  And then painting pictures of it.  The process of colonization deserves a lot more study, through all sorts of sources, including Native Hawaiian sources and the writings of missionaries, like Hiram Bingham's Twenty-One Years Residence in the Sandwich Islands. (You may have seen a short post about Bingham's grandson and Peruvian art and I hope to put up a longer one on Bingham's image of the common law in the not-too-distant future.  (My working title is "What the Missionaries Thought: About  Property Law, For Instance.")

Perry also painted more pastoral settings, including one of the Manoa Valley. That's where I work these days.  Looks a little different today.  Even in this romanticized picture (which may fit better with post-war romanticized versions of a largely uninhabited nature than the pre-war use of nature), Perry paints the humans on horses and s the native house in the background.  And in some of Perry's other landscapes, like his Mokolii Island From Kualoa, depicts agriculture--the humans' use and occupation of the land, which is so central to American thought in the nineteenth century.  This keys into such important legislation as the Homestead Act of 1862 and the requirements of adverse possession.

Of course, some of the early European visitors to Hawaii also drew portraits of the Native Hawaiians' use of property.  Professor Laura Ruby has an 1816 picture of the Kii Temple on the Island of Hawaii.  I'd like to know more about native patterns of land use.  And also more about what the temples looked like.  The print is certainly suggestive--grand buildings on raised, stone platforms, with substantial totem poles in front.  One missionary whom I read recently celebrated the burning of native statutes and temples, which may explain why so little has survived.

And then at other times, artists depicted the land with no humans or human structures on it.  This was rarer, though particularly volcanoes drew attention.  I think in the case of landscapes of volcanoes, one sees more the awe of exotic nature.  Those landscapes are about power of nature, not the dominion that humans over land.  Here is Jules Tavernier's post-bellum landscape of a volcano on the island of Hawaii (late 1880s).  Wow.  There's a certain romanticism to the post-bellum landscape, which even on the continental United States focused more on nature and less on humans than antebellum landscape art.  Perhaps that shift is related to the emerging environmental movement of the late nineteenth century.  But on this I am not prepared to even an educated guess yet.

And here is Tavernier's landscape of Pali on O'ahu.  Again, as with pre-war landscape, there is a human on it.  However, there are few other signs than the man on a horse, which suggest human's occupied the land. Again, it seems to be a romanticized version of the landscape--nature with little human contact.

Of course, photographs of the Hawaiian landscape today mix the themes of pastoral and technology.  Here's a picture of the H3 "Interstate" (go figure), taken from the Aiea Loop Trail, running through an natural setting.  Talk about the machine in paradise!  In this case, it's automobiles and concrete in the valley.

On the property aspects of colonization, Stuart Banner has very pretty interesting things to say in, among other places, the Law and History Review and, of course, in How the Indians Lost Their Land: Law and Power on the Frontier.  And on that, I hope to have some insightful things to say shortly.

Endnote: All the images of paintings are from the National Gallery of Art, except Ashur Durand's Progress, which is from the Warner Art Museum, Tuscaloosa, Alabama.

Alfred L. Brophy

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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

Click here to see all takings posts

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Aloha Jurisprudence

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.

There's also a whole genre of literature on Native Hawaiian property rights (for example, here and here), which people on the mainland pay insufficient attention to, or at least I have paid insufficient attention to.  I fear that we've overlooked some cases, which are important from the perspective of legal theory. The cases, beginning with Palama v. Sheehan in 1968, running through Kalipi  v. Hawaiian Trust Company in 1986, Pele Defense Fund v. Paty in 1992, and Public Access to Shoreline Hawaii in 1995, are working towards an understanding of the background rights of crossing land to for fishing and visiting the beach and gathering food as well.  It's hard to tell exactly where this is going and what the boundaries are.  But there are some pretty cool possibilities hiding in the shadows.

One case that we read is Palama v. Sheehan, 440 P.2d 95 (1968), which involves a controversy over access across a neighbor's land so that the Palamas could get to their small tracts of land.  Now, perhaps this could have been handled with as an easement implied by necessity (and the court says as much).  But the court spends most of its time talking about the Native Hawaiian right to cross land to get to taro patches and to get to the ocean.  The court concluded, "Such testimony was sufficient evidence on which the trial court could find that an ancient Hawaiian right of way through plaintiffs' land existed and was used as such by defendants' predecessors in title."  When I asked why the court didn’t just rest on the easement by necessity, rather than get involved in the complex issue of Native Hawaiian right, one of my students--whose family happens to be from the island were the case arose--suggested that the court had the particular desire to contribute to the resurrection of Native Hawaiian rights.  I think she's right.

There are some other cases that interpret Native Hawaiian rights under two statutes.  In Kalipi v. Hawaiian Trust Company, 656 P.2d 745 (1982) the court faced a claim for access to property by Kalipi to go onto another's land on the island of Moloka'i to gather indigenous crops.  He based the claim on Hawaiian Revised Statutes § 7-1, which recognizes the rights of "tenants" to access lands to take certain agricultural products for their own use:

Where the landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use.

The court interpreted the rights of people who lived in a ahupua’a–-a traditional division of property.  (Ahupua’a were pie-shaped; they ran from the coast to the mountains and thus residents had the ability to access the water as well as the ability to access farmland, all within the same  ahupua'a.)  But because Kalipi did not live in the ahupua'a where he sought to gather, the court concluded that he did not have a right to gather there.

Later, in Pele Defense Fund v. Paty, 837 P.2d 1247 (1992), the court dealt with a case of someone who--like Kalipi--didn’t live in the a'hupua'a.  In Pele the claim was based on a different statute--Hawaiian Revised Statutes § 1-1--which provides for the preservation of customary Hawaiian rights:

The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of [Hawai'i] in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage . . .

So in Pele the issue of right of access was divorced from residency on a particular ahupua'a.  And here the court held that there were rights to access private property for "traditionally exercised subsistence, cultural, and religious practices," as long as the land has not already been developed.

Then there's the famous case of Public Access Shoreline Hawaii v. Hawaii County Planning Commission 903 P.2d 1246 (1995), popularly known as PASH. It opens up some possibilities for public rights to use private property.  Of the many things one might say about this case, let me highlight the strange origins, in a challenge to a construction permit.  The permit is challenged because the building authority failed to take adequate account of native Hawaiian rights.  And that leads to a in-depth discussion of just what those rights are and how much they should be protected.  So third parties are given standing to challenge the permit--and when they are, the court finds that it was improper to permit building here without doing more to preserve rights of access. There's, in essence, an extensive (judicially recognized) right of access.  As I say, much to talk about--some of which is summarized in a detailed article from the Maui Times.  This year, instead of teaching Matthews v. Bay Head, I taught PASH. And I hope you'll think about doing the same next year.  And I wonder if there're some opportunities here for other jurisdictions.  Or maybe even for some other implied rights of access to sacred places elsewhere in the Hawaiian islands, such as preservation of sacred sites.

One of the bases of the court's implied right of access is Hawaii Revised Statute § 5-7.5(b), which authorizes the court to give consideration to the "aloha spirit": "the working philosophy of native Hawaiians(;) ... 'Aloha' is the essence of relationships in which each person is important to every other person for collective existence." HRS § 5-7.5(a).

Mighty interesting stuff going on out here.  So give it a look and start talking up the possibilities of "aloha jurisprudence."

Alfred L. Brophy
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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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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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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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