PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, May 19, 2006

Property Theory Syllabus

Sometime this summer, I'm going to revise the syllabus for my Property Theory seminar.  I'm definitely going to add Rethinking Commodification by Martha Ertman and Joan Williams.  I've put my current syllabus below the fold, and would welcome suggestions on other readings or subject to include.

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May 19, 2006 in Property Theory | Permalink | Comments (3) | TrackBack (0)

Wednesday, May 17, 2006

More on Defining Family

A few months ago I had a post on a controversial municipal ordinance in a St. Louis suburb that prohibited two unmarried people from living together with their children:

Black Jack's ordinance applies to unmarried couples with children. Under the law, a home cannot be inhabited by three or more individuals not related by "blood, marriage or adoption."

The ordinance recently has come under scrutiny because of Olivia Shelltrack and Fondray Loving. The couple purchased a five-bedroom, three-bath house in Black Jack and moved into the home last month with their three children.

But the couple was denied an occupancy permit because their household failed to meet the city's definition of family.

The St. Louis Post-Dispatch has an update on the situation -- despite the resulting controversy, the city has declined to amend its ordinance.  On a related issue, here is a list of which states treat marital status as a suspect class in their state civil rights legislation.

Ben Barros

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May 17, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Oklahoma Supreme Court Declines to Follow Kelo

Over at the VC, Eugene Volokh has a post on an Oklahoma Supreme Court decision holding that economic development takings are not permissible under the Oklahoma constitution.

Ben Barros

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May 17, 2006 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Barros on Midkiff, Berman and Kelo

I've posted an essay titled Nothing "Errant" About It: The Berman and Midkiff Conference Notes and How the Supreme Court Got to Kelo With Its Eyes Wide Open on SSRN.  Here's the abstract:

This Essay draws on the Supreme Court’s conference notes in Berman v. Parker and Hawaii Housing Authority v. Midkiff to contest Justice O’Connor’s assertion in her Kelo v. City of New London dissent that “there is a sense in which this troubling result [in Kelo] follows from errant language in Berman and Midkiff.” The conference notes in those cases in fact reveal that the Court used broad language intentionally (in Berman) and was aware of the risk of broad language (in Midkiff). Further, the broad language that O’Connor found objectionable was essential to the Court’s holdings in Berman and Midkiff, and the cases could not have been decided on narrower grounds. Justice O’Connor’s suggestion that the broad language in Berman and Midkiff was the result of a judicial slip of the pen therefore is incorrect.

The Court’s decisions in Berman and Midkiff consciously avoided the hard questions presented by the issue of public use and deferred those questions to the legislature. The intentional abdication of the judicial role in reviewing issues of public use reflected in the Berman and Midkiff conference notes reinforce the position that Kelo is entirely consistent with the Supreme Court’s public use precedents. A more compelling dissent by Justice O’Connor therefore would have argued not that Berman and Midkiff contained loose language, but that with the benefit of hindsight Berman and Midkiff’s deference to the legislature was a mistake that should be corrected by overruling the prior cases.

This essay is based on two blog posts, about Berman and Midkiff, from last year.

Ben Barros

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May 17, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 16, 2006

Flipping, Trover, and other stuff

Emerging from grading long enough to say that Dave Hoffman has a wonderful post on flipping a Philadelphia landmark, the Divine Lorraine.  And for those of you who still teaching personal property, Miriam Cherry has a great question about who owns trover (or is that rover?).  Pretty good question; details at her post.

Moreover, I see Ben's post on teaching land use has inspired a great debate on the propertyprof list-serve on how to begin the property class and whether to include land use in the first year property course.  Folks might want to put their important thoughts up over at Ben's initial post, as well.

Al Brophy
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May 16, 2006 | Permalink | Comments (0) | TrackBack (0)

Ball on Nuisance and Takings

Carlos A. Ball (Pennsylvania State University - The Dickinson School of Law) has posted The Curious Intersection of Nuisance and Takings Law on SSRN.  Here's the abstract:

Whenever the government operates a facility in a way that negativelly affects the property interests of nearby owners, the question arises whether it has effected a taking. This is especially the case in instances in which the government’s land use constitutes a nuisance. This Article explores the issue of when a nuisance ripens into a taking. The Article argues that when it is alleged that the government has effected a taking through its own land use, courts should employ a form of review that is more exacting than that applied in regulatory takings cases but that falls short of the categorical rule applied in physical invasion cases. In doing so, the Article focuses on both the magnitude of the harm, as well as the degree of its distribution among property owners, which accompanies intensive governmental land uses. The Article seeks to show how takings law can promote a greater degree of fairness when the government chooses sites for facilities that create significant negative externalities. The analysis will help property owners who have borne a disproportionate share of those externalities, including owners in poor and minority communities whose unequal treatment in this regard has given rise to the environmental justice movement.

Ben Barros

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

Monday, May 15, 2006

Pence and Bucks on Homeowners' Knowledge of Home Value and Mortgage Terms

Karen M. Pence ande Brian Bucks (Board of Governors of the Federal Reserve) have posted Do Homeowners Know Their House Values and Mortgage Terms? on SSRN.  Here's the abstract:

To assess whether homeowners know their house values and mortgage terms, we compare the distributions of these variables in the household-reported 2001 Survey of Consumer Finances (SCF) to the distributions in lender-reported data. We also examine the share of SCF respondents who report not knowing these variables. We find that most homeowners appear to report their house values and broad mortgage terms reasonably accurately. Some adjustable-rate mortgage borrowers, though, and especially those with below-median income, appear to underestimate or not know how much their interest rates could change.

Ben Barros

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May 15, 2006 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Sunday, May 14, 2006

Weekly Top Ten

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

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

2. (171) 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. (155) The 'Backlash' So Far: Will Citizens Get Meaningful Eminent Domain Reform?, Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project)

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

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

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

7. (78) Property Law, Dean Lueck and Thomas J. Miceli (University of Arizona, University of Connecticut - Department of Economics)

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

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

10. (57) Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and other Tales from the Supreme Court, Marcilynn A. Burke (University of Houston - Law Center)

Ben Barros

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May 14, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)