Friday, June 2, 2006

Wilmington Riot of 1898

WilmingtonrecordThe Wilmington, North Carolina Riot Commission has issued its final report.  And it's getting a lot of attention, like this Washington Post article and Eric Muller's detailed discussion at Is that Legal? 

The story of the riot's origins is important: it grew out of a controversy around the 1898 election and an anti-lynching editorial published by Alex Manly, editor of the local black newspaper, the Wilmington Record.  Then the black press was burned, which set off a wave of further violence.  (See picture, which appears in the riot commission report.)  It's testimony to the power of ideas that the riot began around the press, I think.  There's a lot of good work to be done on the explosive power of the ideas of what Ralph Ellison called "the great constitutional dream book"--ideas about equality and anti-lynching in the black community.  (Really small tidbits of some work I'm doing on this topic are here and here.  And there's some more in the first chapter of Reconstructing the Dreamland.  I hope in the not-too-distant future to have a monograph about this; it's tentatively titled Reading the Great Constitutional Dream Book.)

Propertyprof readers may be paritcularly interested in the riot because of the importance of geography.  Where people lived (and had there businesses) had a lot to do with where the violence was.  Unlike many other riots--East St. Louis in 1917, Chicago in 1919, and Tulsa in 1921 come to mind--Wilmington had some integration of housing and businesses.  Those of you who like maps will enjoy these, which depict residential segregation in 1897 and 1905.

Alfred L. Brophy
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June 2, 2006 in Miscellaneous | Permalink | Comments (3) | TrackBack (0)

Thursday, June 1, 2006

Post-Kelo Public Use Case in 5th Circuit

Over at the VC, Ilya Somin has an interesting post on Western Seafood Co. v. City of Freeport, a potentially important post-Kelo public use case.

You can view prior takings posts on this blog by clicking here.

Ben Barros

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June 1, 2006 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

The Anti-Rent Era in New York Law and Politics


Here’s a book that serious property scholars and legal historians need to read: Charles McCurdy’s Anti-Rent Era in New York Law and Politics, which appeared in 2003 in the prestigious University of North Carolina Press legal history series.

The anti-rent movement hasn’t received nearly the attention it deserves: it was a movement by “tenants”–-people on land in the Hudson River valley who owed permanent feudal quit rents–-against their patroons.  In the 1840s, the patroons became more serious about collecting the quit rents (annual payments or services) and particularly back-rents.  The tenants had little ability to pay and they refused.  This movement of little people against the wealthy quickly dissolved into violence.  And therein lies an important story about the intersection of popular constitutionalism, politics, and ideas about property.  The attempt to channel the dispute through the legal system and even the political system led, after the violence, to a stalemate between tenants and patroons.  The movement, which fit in odd ways with the antislavery movement, can help us understand political theory regarding respect for private property, as well as agitation against vested rights.  Shades of Hawaii Housing Authority v. Midkiff, eh?  In fact, one proposal in the New York legislature was to allow tenants to buy out their obligations through the state's eminent domain power.

McCurdy pays close attention to the political maneuvering in the legislature and to how legal decisions channeled potential political solutions.  It's a subtle exploration of an exceedingly complex topic.  Usually when people write about the anti-rent movement they pay attention only to one aspect--usually the ideological aspect--of the movement.  McCurdy shows how all the gears fit together.  It's a complex story, but it conveys the sense of how law and politics interact, to limit the opportunities for reform.  Ah, such is the complexity of life.

Propertyprof readers who're interested in the ideological aspects of the movement--the ideas about private property employed by the patroons and their supporters and the ideas about the tenants rights--might also enjoy reading James Fenimore Cooper's trilogy on the movement.  Cooper was, well, rather unfriendly towards the movement, but The Redskins and Satanstoe are interesting, if somewhat tedious reads.  (I haven't read The Chainbearer, the other book in the trilogy.)  Copper's story on the anti-rent movement, alas, ain't The Last of the Mohicans; or even Homes as Found, another of Cooper's important novels on law.

So check out McCurdy. It's state-of-the-art legal history and I think you'll learn a great deal from him about the interaction of law and politics in the nineteenth century.

Alfred L. Brophy

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

Property and Immigration Reform

A reader sent along the following:

I want to bring to your attention a pending threat to property rights in our nation that is being promoted (in all ignorance, likely) by the same conservative legislators that publicly champion property rights.  In the pending Immigration legislation, which is in conference committee right now, the House version calls for 700+ miles of border fencing, the Senate version “only” 300+ miles.  This is not just a couple of strands of barbed wire, it is 2 layers, 15 feet tall, with a road between them and 24 hour spotlights.  That means that anyone owning private property in the designated areas has to give it up whether they want to or not.  You might think, “good thing there are laws protecting private property.”  One problem – according to 2005’s Real ID act:

(1) IN GENERAL- Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.

(2) NO JUDICIAL REVIEW- Notwithstanding any other provision of law (statutory or nonstatutory), no court, administrative agency, or other entity shall have jurisdiction--

(A) to hear any cause or claim arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1); or

(B) to order compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision.

So, no private property laws apply.  What exactly was it that we were trying to protect with this fence?

I don't know enough about this legislation to make an informed comment at this point.  My uninformed initial reaction would be that (a) the Secretary of Homeland Security doesn't have the power to waive state property law and (b) that the physical invasion of a fence would be a per se taking under Loretto.  I'd be curious to hear others' thoughts on this, particularly on the enforceability of the "No Judicial Review" provision.

UPDATE:  On further thought and on consultation with a colleague who knows more than I do about con law, a federal administrative agency can waive state property law on supremacy clause grounds to the extent that the feds don't have to, say, comply with local land-use laws, but can't waive state property rights to avoid a takings claim.  Also, just because it would be a taking doesn't mean the government can't do it -- it just needs to pay compensation. 

Ben Barros

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June 1, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 31, 2006

Property Songs

Marshalltuckerband Thanks to Ann Althouse's pointer, I've been enjoying the National Review's "Fifty Greatest Conservative Rock Songs."  Classifying some of them as conservative seem like fitting a round peg into a square hole to me--a point Althouse makes well.  "Small Town" by John Cougar Mellencamp?  "Who'll Stop the Rain" by CCR?  "Sweet Home Alabama" probably belongs on the list, although I am told there is some revisionist thinking on it, as this wikipedia entry illustrates.  Be that as it may, I love lists that rank things--like rankings of law reviews.

Property profs may be particularly interested in song 39 on the list, "Property Line," by The Marshall Tucker Band (on the Long Hard Ride album).

Couple of lines here:

    Well my idea of a good time
    Is walkin’ my property line
    And knowin’ the mud on my boots is mine.

I've already inquired about the property implications of the Beatles' Strawberry Fields Forever.  Other songs that may warrant further discussion (though perhaps not on the National Review's list), are Signs and Alabama's "Song of the South."

Alfred Brophy

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May 31, 2006 | Permalink | Comments (2) | TrackBack (0)

Colburn on Public Lands and Ecology

Jamison E. Colburn (Western New England College - School of Law) has posted Habitat and Humanity: Public Lands Law in the Age of Ecology on SSRN.  Here's the abstract:

Public lands law in this country has been gridlocked for a decade at the intersection of democracy and ecology. The public is still led to believe that the “conservation” versus “preservation” of our discrete, bounded parcels of public land is the central political issue and that what must happen for one set of values or another to triumph is that one or another faction capture those lands parcel-by-parcel and put them under its preferred legal regime. Experts and activists have transitioned from this philosophy to the open-textured, inclusive notions of “ecosystem” and “adaptive” management on which everyone agrees in the abstract but not in application. The public’s faith in its pluralist administrative state is very much contingent upon its faith in professional expertise, though, even as this whole arrangement becomes increasingly incompatible with any truly “ecosystemic” approach to public lands. Indeed, while active management and “ecological restoration” are probably truer frames of reference for public lands today, the only way these can even possibly frame a progressive conservation agenda will be from the bottom up. Thus, I argue that public land management agencies are facing a dilemma if they hope to respond both to ecological reality and democratic accountability. They are facing this dilemma most immediately in their several legal duties to generate formal, comprehensive plans for the lands they administer by which they must protect biodiversity at the same time they serve a diverse public according to the terms of almost a dozen different enabling statutes.

Ben Barros

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May 31, 2006 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 29, 2006

Memorial Day: Grove Street Cemetery, New Haven and other cemeteries, too

Coldharbor In honor of Memorial Day and the brave people who died preserving our freedom, I thought I'd post a little about one of my favorite topics: cemeteries.  My friend and former colleague Michael Gibson sent this article on the Grove Street Cemetery in New Haven from the Yale Alumni Magazine.   Much to talk about here in how we remember and honor the past.  The article also raises the conflict between use of land for cemeteries and for other purposes.

The photograph is of the Cold Harbor National Cemetery, one of my favorites.  It's from the Alexandria Library's collection.

May 29, 2006 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)