Saturday, May 6, 2006

Weekly Top Ten

Here's this week's list of SSRN's ten most downloaded recent property articles:

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

2. (162) 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. (142) The Tragedy of the Commons and the Myth of a Private Property Solution, Amy Sinden (Temple University - James E. Beasley School of Law)

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

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

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

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

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

9. (50) Footloose at Fifty: An Introduction to the Tiebout Anniversary Essays, William A. Fischel (Dartmouth College - Department of Economics)

10. (49) Private Order and Public Justice: Kant and Rawls, Arthur Ripstein (Faculty of Law, University of Toronto)

Ben Barros

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May 6, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Enjoyed The Semester and Good Luck to My Students

Well, later today my property students at the University of Hawaii are going to take their final exam.  That means, also, that I’m about to leave Honolulu to return to Tuscaloosa and you won't be hearing much from me for a while, while I move and grade.

I’ve thoroughly enjoyed teaching here this semester.  I don’t think I’ve ever enjoyed teaching a property class more (though I sure have some fond memories of property classes past in Tuscaloosa and Boston and Oklahoma City, too) and I’ve learned much from this crowd as well.  In part because one of their beloved classmates, Augusto Camara, died part way through the semester, I learned a lot about community spirit and how to deal with trying times from them.  (My tribute to "Goose," about images of property in Hawaiian landscape art is here.)  I also learned to think differently about issues of property and equity, especially about cultural property (and here).

I really enjoyed talking about aloha jurisprudence with them.  They were kind enough to indulge some of my talk of cemetery law.  Of course, the students taught me about “Vulcan jurisprudence” and alerted me to some great news items about the conversion of an elevated rail to a park in New York City and the breakdown of democracy (so it seems) in Vernon, California

I also had a wonderful time getting to know colleagues at the University of Hawaii Law School; in particular Randy Roth (you need to read his great book, Broken Trust) and David Callies (among other work propertyprof readers will enjoy is his recent book from Cambridge University Press, The Role of Customary Law in Sustainable Development) and Carl Christensen (aka lawyer for the dispossessed and all around mensch) have helped me learn a lot about property law in the Pacific.  Deans Aviam Soifer and Carol Mon Lee are running a great school, with a terrific faculty and student body.  I highly recommend this place to you for law school if you’re a student (or if you’re a faculty member, spend a semester or a summer teaching out here).  Of course, the University of Alabama’s a great place to learn about property, too.

I also had the chance to read some about the history of property in Hawaii.  I’ve posted a little about this already–-on the decline in surfing because of the rise of the market economy in the early nineteenth century and sacred sites of Oahu.  This summer I hope to talk some about missionaries’ ideas about property law and some great books I’ve been reading, including Marshall Sahlins, Anahulu: The Anthropology of History in the Kingdom of Hawaii, Sally Merry’s Colonizing Hawai'i, Lilikala Kame'Eleihiwa's Native Lands, Foreign Desires, Stuart Banner's How the Indians Lost Their Land, and David Stannard’s Honor Killing (not about property but terrific–and I do mean terrific--legal history).

So I wish my students all the best of luck on their exam and in the rest of their careers.  I’ll be back to doing some propertyprof postings when I’ve made some progress on grading.  And then I'll be talking some about property in Alabama.  I may start with one of my favorite archaeological sites, Moundville (description here).

Al Brophy
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May 6, 2006 in Teaching | Permalink | Comments (0) | TrackBack (0)

Friday, May 5, 2006

Rankings of Law Journals: The View from the Customer (i.e., Author)

This is a post about some data I'm interested in seeing.  I've been following the discussion of bepress vs. ssrn over at prawfsblawg and orinkerr.  And that, in addition to a question from a reader about what I make of the bepress list of 100 most popular reviews, has caused me to do a little searching around the bepress website.  They're the folks who run ExpressO, which is a service that will (for a pretty modest fee) submit your article to a bunch of law reviews.

Comments I've seen on the web (like Dave Hoffman's quick study) and conversations I've had with colleagues at the University of Hawaii this semester and friends at other schools suggests that people are increasingly using ExpressO.  Sure makes life easy to pay someone a few hundred dollars (preferably from your expensive account) rather than mailing or even emailing a bunch of journals on your own.  I'm sort of old fashioned (and notoriously cheap) so I tend to do this on my own.  Maybe that's not such a hot idea.  I'd be interested in hearing what propertyprof readers think.  So if you're an author: ExpressO or Express-No, as my colleague Dan Filler asked earlier this year.

I did, however, find some interesting statements on the bepress website, which I think are important to users of ExpressO (that is, authors and law reviews that receive their submissions).  In addressing law review editors, ExpressO is trying to get them to use their service.  They make the revealing--and I think true--statement that "Law reviews not on the delivery route run the risk of being overlooked."  If you're a law review editor, I think it's a mistake to turn down submissions--you probably ought to take them via email, US Postal service, ExpressO, courier--any method that gets the manuscript in your hands.  Law reviews should not be turning away good manuscripts.

Here's the data I'd really be interested in, if I were a law review editor:

ExpressO provides useful statistics such as the median number of submission for other law reviews in your subject area, where your law review ranks in volume, and to what other law reviews your authors typically submit.

Now that's some data I'd like to see.  It has the potential to tell a lot about what authors think about different journals.  Of course, it's only useful to the extent that representative people are using ExpressO and in a way that is representative of their submission patterns.  There's some reason for thinking that the submissions through ExpressO aren't quite representative of the submissions process in general.  Why do I say this?  Take a look at this table, which lists (it seems) the 100 most popular law reviews based on submissions through ExpressO.  It's called the "100 most popular general student law reviews."  Hmm.  Wisconsin is number 1, Stanford is number 42, Columbia is number 45, Harvard is number 57, Yale is number 60.  Wisconsin's a very, very fine journal; I enjoy reading their articles (including their recent symposium on the New Legal Realism) and I'd be honored to publish with them.  But most popular in terms of submissions?  In terms of recent citations by journals, they're behind 37 other strong performers, like the Houston Law Review.

Don't Overlook Ranking Law Reviews by Citations
I think it makes more sense to focus on issues like law review citation rankings and the US News reputation rank of the review's parent institution.  I have a paper on that here--and the executive summary here.

There's a lot of useful information at the ExpressO website, including a number of tips on submitting to law reviews (here, here, here, and here).  Some of the advice is to move towards summer submissions for at least some reviews and towards submitting later in the fall for some.  Important, if true.

Alfred L. Brophy
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May 5, 2006 in Law Schools | Permalink | Comments (2) | TrackBack (0)

T-Rex in Property and Contract Classes

Over at concurring opinions Miriam Cherry has a delightful post on a Tyrannosaurus Rex, which was found in North Dakota in 1990 and became the subject of a lawsuit between the people who found it, the owner of the property where she was found, the Cheyenne River Sioux tribe, and the federal government.  The post is based on her article, which discusses how one might use the case to teach contract defenses.  The fossil is now at the Field Museum in Chicago.

Dana G. Jim also has a very nice article on how one might use the case in  property in the St. Louis University Law Review back in 2002.  Dana occupies a very warm spot in my heart, because he got me started working on the Tulsa riot 'lo those many years ago--and because he encouraged me to think about ways to introduce issues of race into property class (and thus make the class more relevant and accessible to students from diverse backgrounds).

I highly recommend Miriam's post, her article, and Dana's article (available to Hein On Line subscribers), too.  Both Miriam's and Dana's articles are important steps down the road of seriously rethinking what's taught in the first year and how we teach it.  This is a topic propertyprofs will talk a lot about, I hope.  I'll be interested in seeing where the property course goes and what cases we're going to add (in addition to statutes and drafting and negotiation material, too).

Al Brophy

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May 5, 2006 in Teaching | Permalink | Comments (0) | TrackBack (0)

Foster on The City as an Ecological Space

Sheila Foster (Fordham Law School) has posted The City as an Ecological Space: Social Capital and Urban Land Use on SSRN.  Here's the abstract:

The notion that certain uses of public and private property can have negative effects beyond legally defined property boundaries is firmly embedded in land use law. We are now comfortable regulating land use to prevent and control for impacts to our natural resources, environmental quality, and nuisances to third parties. This idea is partly rooted in economic theory - i.e. the existence of negative externalities, but also in the theory of ecology - i.e. the notion that property is inextricably part of a network of social and economic relationships and that its impacts traverse legally defined property boundaries. But not all impacts, or costs, of land use are properly accounted for in land use regulation. This Article highlights a category of social costs that remain largely exogenous to the norms underlying our system of land use controls. Scholars from a variety of disciplines recognize the importance of social capital to, and the deleterious impacts from its loss on, urban communities. Yet legal scholars have not taken seriously social capital when normatively evaluating urban land use regulation and policy. This Article argues that the failure to account seriously for the ways that land use decisions interact with social capital, particularly in the most socially vulnerable communities, underlies many contemporary disputes involving the persistent fragmentation and social inequities of urban metropolitan space. The Article concludes by suggesting that only through a rethinking of the city commons can we begin to take social capital seriously in land use policy and law. Instead of conceptualizing the city as an aggregation of private property rights, we should instead seek to identify and protect common resources and interests in the city commons through limited access rights and collaborative governance strategies that preserve and draw upon existing social networks to manage common city resources.

Ben Barros

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May 5, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 3, 2006

Norms of Dress, the Market, and the Decline of Surfing, with special relation to the trade in Sandalwood

Img_0805 So here's something you probably never thought you'd see talked about: changes in surfing in the nineteenth century, which were inspired in part by the rise of the market economy in Hawaii and in part by norms of dress driven by Christian missionaries. 

In the process of working on a paper on missionaries' ideas about property law, I've been reading Hiram Bingham's memoirs, A Residence of Twenty-One Years in the Sandwich Islands. (Dedicated propertyprof readers will recall that Mr. Bingham's grandson, Hiram Bingham III, is at the center of the controversy between Peru and Yale on treasures taken from Machu Picchu in the early part of the twentieth century.)  I came across this description of surfing:

The royal parties . . . resorted to the favorite amusement of all classes--sporting on the surf, in which they distinguish themselves from most other nations. In this exercise, they generally avail themselves of the surf-board, an instrument manufactured by themselves for the purpose. it is made of buoyant wood ' thin at the edges and ends, but of considerable thickness in the middle, smooth, and ingeniously adapted to the purpose of sustaining a moderate weight and gliding rapidly on the surface of the water.

Continue reading

May 3, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 2, 2006

Latest on the Dispute Over 83 Hawaiian Cultural Objects (aka “Forbes Collection”)

The Honolulu Advertiser has the latest on the dispute over cultural objects valued at $10 million, taken from the Kawaihae Caves on the Island of Hawaii in 1905.  The objects (some believe they are funerary artifacts) were in the Bishop Museum’s collection until they were loaned in 1990 to the Native Hawaiian group Hui Malama I Na Kupuna o Hawai'i Nei.  Subsequently, Hui Malama was sued by the Bishop Museum and two Hawaiian groups, which claimed an interest in the artifacts under the Native American Graves Repatriation Act.  Hui Malama members are refusing to say where the artifacts are, but they may be back in the cave.  And a leader of Hui Malama spent time in a federal detention center for refusing to disclose the whereabouts of the items.  (Hui Malama was formed in the late 1980s during a dispute over the location of a Ritz Carlton Hotel on Maui, which was to be located on top of an ancient cemetery.  Further evidence of the importance of cemetery law.)

It’s an intriguing case and worth the read; much to talk about here, as with the Elgin Marbles and with sacred sites throughout Oahu.  Makes me think there's still a lot to be written on the Native American Graves Repatriation Act and its implications.

Endnotes:  As usual, my thanks to my colleague Carl Christensen for talking this up.  And if you'd like to see a picture of one of the items, click here.  The picture is from this Honolulu Advertiser story from January of this year.

Alfred Brophy
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May 2, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, May 1, 2006

Ball and Reynolds on Exactions and Burden Distribution

Carlos A. Ball (Pennsylvania State University - The Dickinson School of Law) and Laurie Reynolds (University of Illinois) have posted Exactions and Burden Distribution in Takings Law on SSRN. Here's the abstract:

In the last several decades, there has been a marked shift in local government financing away from the use of general revenue taxes and toward non-tax revenue raising devices such as exactions. We argue that the Supreme Court, in its exaction cases, missed a golden opportunity to slow this troubling trend toward the greater privatization of local government financing. In addition, we explain how the Court’s exaction cases are inconsistent with the goal of burden distribution as reflected in the Court’s takings jurisprudence. We propose that the constitutional standard applied to exactions be reformulated so as to account explicitly for burden distribution. Such a reformulation will make exactions law more consistent with the purposes of the Takings Clause and will constitute an important first step in restoring a more sensible balance between tax and non-tax revenue devices.

Ben Barros

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May 1, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, April 30, 2006

Burke on Kelo and Sweet Home

Marcilynn A. Burke (University of Houston - Law Center) has posted Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and other Tales from the Supreme Court on SSRN.  Here's the abstract:

This Article traces and analyzes an emerging trend in constitutional and land use law and the rhetoric that embodies it. The Article examines the potential impacts of rhetoric that the Supreme Court's ruling Kelo v. City of New London has fanned into a flame. The rhetoric paints a picture of imbalance, pitting small landowners against inept government officials who are taking private property. And purveyors of this rhetoric contend that activist judges are simply rubber stamping this land grab. A reform movement has emerged to solve the problems that the stories portray. Yet, there is a palpable disconnect between the rhetoric plied in the nation's media and the reality of eminent domain. This Article demonstrates that the rhetoric and suggested reform are best viewed in the context of what has been dubbed the "Constitution in Exile" movement. This movement seeks to restore what it considers the original meaning of many constitutional provisions including "public use." Exposing and challenging that movement, the Article contends that the movement merely seeks particular ideological outcomes that it masquerades as a rigorous interpretative theory.

Ben Barros

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April 30, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)