PropertyProf Blog

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Saturday, May 27, 2006

Baron on Property and "No Property"

MartinvaleriepropertyOne of the things I'm hoping to do a little of is to comment on recent property articles, as well as recent monographs (like Bourgeois Nightmares, Broken Trust, and Pana O'ahu).  Last fall, Ben  announced Jane Baron's Property and "No Property." The abstract reads

This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights - what they give (or ought to give) to owners vis a vis others and vis a vis the government. But if, as the Realists long ago suggested, property is social, involving relations between people, and if property involves politics, the exercise of power by some over others, then it makes sense to think about the negative side of property rights, the effects of not having any property to speak of. Persons owning very few things inhabit a realm of severe social and legal vulnerability, susceptible to the power of many (and, of course, the government) without having (m)any reciprocal power(s) over others. I call this situation no property.

This paper seeks to describe the legal category no property. Rather than enumerate its iterative disabilities, I enlist a recent novel, Valerie Martin's Property, in the hopes of describing no property imaginatively. The novel illustrates the ways in which legal states that deprive persons of the ability to own or to control property - slavery and coverture - render persons susceptible to the power of others. Notwithstanding enactment of Married Women's Property Acts and the end of slavery, many today - such as the homeless and the extremely poor-remain in a position of comparable legal and social vulnerability. For persons so situated, the freedom-enhancing aspects of property are more or less beside the point. What they experience as a legal matter is, to recur to some older terms, duties, no-rights, liabilities and disabilities. These iterative negatives together constitute a status, a status in which it becomes possible for them to be seen as, essentially, objects, not subjects.

Effective regulatory schemes take existing schemes of property rights into account. No property is such a scheme. Because it consists so largely of negatives, of rights and powers that people do not have, it is difficult to recognize it as such. But it is as serious a constraint on regulatory possibility as, say, the ownership rights of those affected by limitations on the cutting of old growth forests or by required reductions in factory emissions. If we want to do something about the poor and the homeless - whether it be banishing them to special zones or targeting services to them - we will need to understand the legal situation in which we find them. For this reason, I argue, we must continue to seek to understand and define the legal category of no property.

As Professor Baron says, she uses the vehicle of Valerie Martin's 2003 novel, Property, as a way of addressing a huge question: "does property enhance freedom?"  I haven't yet had a chance to read Property, which is about slavery--and humans as property.  But based on the description in Baron's article, I wonder if the article should be called "Property and More Property" or "Property and People as Property."  The "Property and 'No Property'" may not completely capture the position of the enslaved people--they're under more of a disability than that they have no property.  I certainly understand Baron's overall point: that lack of property is also a lack of power.  I wonder about using some other novels, like Harriet Beecher Stowe's Uncle Tom's Cabin, here as well.  Stowe certainly drove home well the implications of being property.

As Baron says at pages 24-25,

Contemporary property law is nominallly committed to the proposition that one's status--particularly one's status as an owner of property--should not determine one's position in society.  But the reality of that commitment can be questioned.  For the fact is that those who own very little property--the homeless, for example, or the extremely poor--remain in a position of substantial legal and social vulnerability.  . . . [R]ecent scholarship in the property area, however well-intentioned, has only further obfuscated and obscured the freedom-limiting attributes of "no property."

Pipespropertyandfreedom Much to wonder about here.  I'd like to hear a debate between Professor Baron and someone who emphasizes the freedom-enhancing nature of property, . . . like maybe Richard Pipes.  His book Property and Freedom was also published by Random House (the publishers of Valerie Martin's Property).  Would be a fine clash of competing visions, I should think.

Alfred L. Brophy

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May 27, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 26, 2006

Galvan on Rehabilitating Building Codes

In this month’s Yale Law Journal, Sara Galvan has an article entitled Rehabilitating Rehab Through State Building Codes.  Here is the abstract:

Building codes are not neutral documents. Traditional codes have the effect of
deterring the rehabilitation of older structures. But rehabilitation—which can have many positive effects, especially on cities—should be encouraged, not deterred. One promising method of encouraging rehabilitation has been the adoption of “rehabilitation codes”: building codes that establish flexible but clear requirements for renovators. After analyzing traditional building codes and three different rehabilitation codes, this Note concludes that more states should adopt mandatory rehabilitation codes.

I highly recommend readers of this blog check out Galvan’s article.  It raises many important points about urban revitalization and the role that property rules and regulations affect the economics and physical characteristics of cities. 

Galvan highlights three states’ efforts at statewide “rehabilitation” building codes, New Jersey, Pennsylvania and Maryland.

Continue reading

May 26, 2006 in Land Use, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, May 25, 2006

More on Merrill, Takings and the West Wing

A few weeks ago, Kurt Paulsen wrote a post about the reference in the West Wing to a missing comma in the takings clause.  Kurt just sent me the following update:

I decided to see if the National Archives had a high resolution image of the Constitution available.  They did.  Using a standard JPEG viewer, I zoomed in as close as I could get.  I then captured the screen image, which is attached.  Sure looks like a comma to me such that the Takings clause ACTUALLY should read:

...taken for public use, without just compensation.

There's a law review article just waiting to be written on this!

Click on the image below to expand and see for yourself.

Paulsen_takings_clause_pic

Ben Barros

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May 25, 2006 in Takings | Permalink | Comments (4) | TrackBack (0)

Kelly on Urban Communities and Eminent Domain

James J. Kelly Jr. (University of Baltimore - School of Law) has posted 'We Shall Not Be Moved': Urban Communities, Eminent Domain and the Socioeconomics of Just Compensation on SSRN.  Here's the abstract:

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of “public use” and “just compensation” as limitations on eminent domain. In the context of urban redevelopment, the theory supports greater resident autonomy in the compulsory assembly of residential land to subsidize and induce private economic development. The article’s second part articulates two legislative reforms that protect residents from unjustified, irreparable harm without depriving urban redevelopment of eminent domain’s essential efficacy in coordinating investment.

Specifically, homeowners should not be subject to eminent domain pursuant to a redevelopment plan until the majority of them have approved the plan. To further solidify resident ownership of redevelopment, the right to continued residency in the community should be protected by amending relocation laws to guarantee an alienable entitlement to be offered replacement housing in the redeveloped district area. Together, these two legislative reforms express a more nuanced balance of property and liability rules that will facilitate a more productive interface between community residents and redevelopment officials.

I read an earlier draft of this article, and think it is great.  Highly recommended!

Ben Barros

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May 25, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (2)

More Aloha Jurisprudence

Resurfacing from grading long enough to comment on the Hawaii Intermediate Court of Appeals’ opinion in Makila Land Company v. Heirs of Apaa (coming soon to the Pacific Reporter), which deals with land owned by Apaa, who died in the late nineteenth century.  At issue is the question of how to translate the word “makuakana,” which appears in a 1872 lease by Momano to the West Maui Sugar Company: does it mean father or other male relative?

If the former, then Momano was the sole intestate heir of Apaa and he had title to the land conveyed in 1893 to the MLC’s predecessors.  The claimants have advanced genealogical charts, which suggest that Momano was at best a co-tenant, not the sole owner of the property.

The intermediate court of appeals overturned a summary judgment in favor of the MLC–-so the claimants have a long way to go to make out their case.  But at least now they have a chance to make out a case for their intestate claim to the land and to have their day in court, which the trial judge denied them.  It’s been picked up for discussion by some Hawaiian rights activists (and here).    It illustrates that people have some rights, which courts may recognize on occasion.  And it illustrates the increasing importance of facility with the Hawaiian language in settling land disputes.

Why isn’t this claim barred by adverse possession, you may ask?  A very good question.  Because this was summary judgment, the court didn’t address an adverse possession claim; it merely said that the claimants didn’t have an interest in the property due to intestate succession.  But if the case gets there, I suspect that one defense against a claim of adverse possession by the MLC will be that it’s very hard to adversely possess against a cotentant.  It'll be a long road before the claimants have a share of the estate, obviously, but the opinion reminds us that out in the Pacific, courts and litigants are increasingly scrutinizing transactions of long ago.  They're re-visiting what caused land loss--just as historians like Stuart Banner, Lilikala Kame'eleihiwa, and Robert Stauffer are re-visisting our understanding of the process, as well.

Shortly I’ll be talking about the Pioneer Mill case, Stauffer's Kahana, and how missionaries thought about property law.  Aloha jurisprudence has a lot of possibilities; it'll be interesting to see where this all goes.

Hat tip: Carl Christensen.  Maui Times article on the case here.

Alfred L. Brophy
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May 25, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (1)

More on Definition of Family

Today's NY Times has an interesting story on the trend for multi-generational families to live in one dwelling.  This ties into some earlier posts on the legal definition of family.

Ben Barros

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May 25, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

The Fulsome Gourmand

This has nothing to do with property other than some residual grading avoidance.  At a faculty meeting last week, I suggested that some action steps for part of our draft strategic plan be made more fulsome.  I intended fulsome to mean copious, but my colleague John Culhane later suggested that fulsome had negative connotations.  This led to some follow-up grading-avoidance-induced e-mail correspondence on the subject.  John sent along the following definition of fulsome from Webster's Ninth New Collegiate Dictionary:

fulsome [ME fulsom copious, cloying] 1. characterized by abundance: copious 2: offensive to the senses or to moral or aesthetic sensibility: disgusting 3. a: excessively complimentary or flattering: lavish  b. obsequious   4. exceeding the bounds of good taste: overdone  5. being completely developed: full, well-rounded

Usage:   Many commentators condemn the modern use of fulsome without pejorative overtones as misuse or ignorance. This use (sense 1) is, however, the earliest and etymologically purest sense of the word. But since the pejorative senses continue to flourish, expressions like "fulsome praise"  can be ambiguous; the reader or hearer may not be sure whether sense 1 or sense 3 is intended.

This reminded me of the arguably incorrect usage of the word gourmand to refer to someone who enjoys good food.  This is a correct modern usage, but the original meaning was glutton and the word should have the same kind of negative connotation as fulsome.  Gourmand actually has a different derivation than gourmet -- gourmand comes from a middle english word that means glutton, while gourmet comes from the french and middle english words for valet (esp. the valet in charge of wines).

Ben Barros

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May 25, 2006 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 24, 2006

Sandefur on Kelo

Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project) has posted Mine & Thine Distinct: What Kelo Says About Our Path on SSRN.  Here's the abstract:

In Kelo v. New London, the United States Supreme Court allowed state officials to seize homes and businesses and transfer the property to private owners for development, even though the Constitution declares that government may only take property “for public use.”

Kelo was greeted with popular outrage and calls for political reform. But few commentators have discussed the fact that it represents a fundamental change in American political philosophy. In 1829, the Supreme Court said that “a legislative act to transfer the property of A. to B. without his consent” had been “resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.” But by 1978, the Court held that the Constitution does not require compensation when a person’s property is taken for “some public program adjusting the benefits and burdens of economic life to promote the common good,” and in Kelo, the Court held: “Promoting economic development is a traditional and long accepted function of government.”

In this article, I explore the political philosophy underlying this change. I begin with the influence of John Locke, Thomas Hobbes, and William Blackstone on early American courts, and how these courts were divided regarding the boundaries on state power. I then describe the abandonment of Lockean philosophy during the Progressive era, and conclude with a discussion of how this debate is reflected in Kelo and its dissents, and how addressing eminent domain in the wake of Kelo requires philosophical as well as political change.

Ben Barros

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May 24, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 23, 2006

Bell and Parchomovsky on The Uselessness of Public Use

Abraham Bell (Bar Ilan University - Faculty of Law; Fordham University - School of Law) and Gideon Parchomovsky (University of Pennsylvania - School of Law) have posted The Uselessness of Public Use on SSRN.  Here's the abstract:

The Supreme Court decision of Kelo v. City of New London has been denounced by legal scholars from the entire political spectrum and given rise to numerous legislative proposals to reverse Kelo’s deferential interpretation of the Public Use Clause of the Fifth Amendment, and instead, limit the use of eminent domain when taken property is transferred to private hands.

In this Essay we argue that the criticisms of Kelo are ill-conceived and misguided. They are based on a narrow analysis of eminent domain that fails to take into account the full panoply of government powers with respect to property. Given that the government can achieve any land use goals through the powers of regulation and taxation without paying compensation to the aggrieved property owner, eminent domain is the government power least pernicious to property owners as it is the only one that guarantees them compensation. An important and counter-intuitive implication of this insight is that the calls to restrict the government ability to use eminent domain by narrowly construing public use are going to harm, rather than help private property owners.

The Essay then poses the intriguing question: why does the government ever choose to pay compensation? To answer this question we develop a model of political decisionmaking with respect to land use. Our model enables us to elucidate the political calculus that governs the compensation decision and to specify the conditions under which political decisionmakers will elect to pay compensation regardless of the policy instrument chosen.

Ben Barros

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May 23, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, May 22, 2006

Columbia's Manhattanville Expansion

This week's NY Times Magazine has an interesting article by Daphne Eviatar on Columbia University's expansion into the Manhattanville section of West Harlem.  Here's an excerpt:

When Columbia announced its plans to build a much-needed new campus in a corner of Harlem called Manhattanville, it saw a gritty neighborhood of auto-repair shops, tenements and small manufacturers that would probably pose little obstacle to its ambitions. Columbia says that the project will advance a vital public interest and help revitalize parts of Upper Manhattan. Yet the university has met remarkable resistance. One man's urban improvement, it seems, is another man's urban debacle. . . .

Certainly Columbia's plans are ambitious: across a large swath of Upper Manhattan, the university wants to create an academic enclave that will both nurture intellectual progress and revitalize an urban area. Piano's design aims to accomplish both. The campus will have wide, open streets that offer a broad view of the waterfront. Along the main thoroughfares, the lower floors of the academic buildings will be mostly glass — "they will be floating," as Piano puts it — filled with shops, restaurants and arts spaces serving the broader public of Harlem and the Upper West Side. The designs are still preliminary, and plans for specific buildings have yet to be developed. But Piano, who also designed The New York Times's new headquarters, now under construction, and a well-received addition to the Morgan Library, is committed to designing the space to promote these integrationist aims. "You will feel part of the community," Piano told me when we met at Columbia's Prentis Hall, a white-tiled former milk-bottling plant on Manhattanville's southern edge. Indeed, Piano's drawings, on display in the sunny ground-floor workshop, depict transparent skyscrapers lining ample boulevards with ethereal-looking pedestrians ambling along them.

But in the eyes of many local residents, Piano's optimistic rendering obscures the fact that to fulfill its vision, the university will have to bulldoze almost everything that's already there. About 1,600 people are currently employed in this part of Manhattanville, and some 400 live there. Many residents are disturbed by the placement of the campus between a park being built at the West Harlem Pier and the community that fought for years to have that park created. Meanwhile, most everyone expects that the university's arrival will accelerate the gentrification that is already transforming the historically black neighborhood of Harlem — to the benefit of some residents and the harm of others. . . .

Columbia has already purchased more than half the property it would need. But some owners have refused to sell, and Columbia says that eminent domain remains an option if negotiations fail. It's a dicey option, however. Throughout the country, public opposition to eminent domain has mounted since last summer, when the Supreme Court ruled that private property can be seized by local governments for private development. Virtually every state has considered changing its eminent-domain laws; at least 13 different bills on the subject have been introduced in Congress. As Justice Clarence Thomas noted in his dissent in the recent Kelo case, concerning New London, Conn., an expansive definition of "public use" in the 50's and 60's permitted local governments to eliminate entire minority neighborhoods through eminent domain in the name of "urban renewal" — soon known as "Negro removal" among blacks. Not surprisingly, Columbia's talk of seizing property does not go over well in Harlem. Still, Mayor Michael Bloomberg has come out in strong support of eminent domain — which also figures in the developer Bruce Ratner's controversial efforts to construct a basketball stadium and condos in the Atlantic Yards area of Brooklyn. Without it, "every big city would have all construction come to a screeching halt," Bloomberg said recently.

Ben Barros

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May 22, 2006 in Land Use, Takings | Permalink | Comments (2) | TrackBack (2)

Kelo Survey

A while ago, Jeff Stake at Indiana University took an informal survey asking property profs three questions about Kelo.  Twenty-five people responded.  Here are the questions and the results:

I would like you to cast yourself back to a point in time before Kelo was decided. Imagine that you had been asked the following questions, and please give the answers you would have given then, before the case was decided.

1) In Kelo, will the home owners win? "yes" or "no" or "I do not know".

2/25 thought the home owners would win.  23/25 thought the homeowners would lose.

2) How many votes out of the nine will the Kelo home owners get?

2/25 thought the owners would get 5 votes.

5/25 thought the owners would get 4 votes.

14/25 thought the owners would get 3 votes.

2/25 thought the owners would get 2 votes.

0/25 thought the owners would get 1 vote.

2/25 thought the owners would get no votes.

3) Will O'Connor vote for the home owners in Kelo? "yes" or "no" or "I do not know".

2/25 thought that O'Connor would vote for the homeowners

2/25 answered "I do not know"

21/25 thought that O'Connor would vote against the homeowners

As Jeff observed in an e-mail circulating the results:

So, only 8% of the respondants were surprised by the result in Kelo and very few of us were greatly surprised by the split. However, almost all of us were surprised by O'Connor's position. But our surprise should not be a surprise given her opinion in Midkiff. In all of the accolades given her as she retired, I heard no one comment that she seemed to have changed her thinking between Midkiff and Kelo.

The larger message, it seems to me, is that the law did not change much with the Kelo decision. If we are representative of experts, most experts would have predicted the result and even the approximate size and members of the majority. Most of us would have correctly predicted the votes of all but O'Connor. If there was any change signaled by Kelo, it was a change in *favor* of landowners. Yet, the press continues to treat the case as a change in the other direction, a tribute to the spinmeisters.

As I discuss in this essay, I couldn't agree more that Kelo didn't change the law.  Of course, it has changed the political landscape on eminent domain, which in my view is a good thing.

Ben Barros

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May 22, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, May 21, 2006

Weekly Top Ten

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

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

2. (187) 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. (166) The Tragedy of the Commons and the Myth of a Private Property Solution, Amy Sinden (Temple University - James E. Beasley School of Law)

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

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

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

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

8. (60) The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights, Mark Fenster (University of Florida)

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

10. (60) 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 21, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)