June 29, 2006
Barros and Alito on Legal History Methodolgy
Been reading my employer's (Ben Barros') Nothing 'Errant' About It: The Berman and Midkiff Conference Notes and How the Supreme Court got to Kelo with Its Eyes Wide Open, which is up on ssrn. I highly recommend it. Ben has some pretty interesting moves in the paper. He uses notes from the Justices' conferences in Berman and Midkiff to understand what the justices thought they were doing. Dedicated propertyprof readers have already seen some of Ben's thoughts on parts of this.
As an approach to legal history, reading judges' papers has much to recommend it. Barros goes a little beyond, I think, purely legal history questions: he's interested not just in what the justices thought they were doing. He's interested in how that might affect our thinking in subsequent cases. And his paper suggests that Kelo's in line with Berman and Midkiff.
So here's where I see Barros and Alito overlapping in methodology. Alito's Note in the Yale Law Journal took a similar approach. Alito read the justices' notes in the "released time" cases (separation clause challenges to schools' giving release time to students to attend religious instruction). Alito had, I thought, a very fine reconstruction of what the justices thought they were doing. And it was more limited than how subsequent cases interpreted what the justices thought they were doing. From that, I read Alito as suggesting that subsequent interpretations of those cases ought to be limited. Pretty interesting methodology for reading precedent, actually: we should go behind what the justices wrote to further limit their opinions. (Barros and Alito depart on outcome, because Barros says that Kelo's in line with previous cases.)
I thought when I read Alito's Note last December that it might get some play in his confirmation hearing, because I think that is a window into his thinking (at least as a student). Pretty interesting to think that Alito was writing advocacy-oriented legal history (of a conservative kind, I think) at the same time that Robert Cover was writing advocacy-oriented legal history (of a more liberal, though not necessarily so) kind. Alito published his Note in the same year that Cover published Justice Accused: Anti-Slavery and the Judicial Process. Wow--lots of exciting ideas in circulation in New Haven in 1975. I wonder what Laura Kalman would have to say about this?
Now, I'm a huge fan of student works; some of my most memorable and enjoyable moments are working with students on their notes. And I've been real fortunate to supervise some terrific ones on property in the last few years, including Amy Wilson's on the jazz influence in property law (got to read it--I'm not going to give away the punchline); Kitty Rogers' on integrating the city of the dead (catchy title, eh?); Leah Green's on the Erie Canal in American legal thought; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law. I'm skeptical of how much we can read into a student's jurisprudence, thought I think they may give us a sense of a person's thinking.
Now two closing questions: so, Ben, should we start calling Alito, Barrolito? Or, perhaps, calling you Alitorros?
Endnote: As I was looking on the Library of Congress website for a public domain image to illustrate this post, I was surprised to see how many photographs there are of "blight" from the 1930s. (The photograph I used here, for instance, was taken in 1935 and is of a apartment house that's been converted in a gas station. Looks pretty nice to me, but it's described as blighted.) No surprise that there are lots of photos from the 1930s, but what does surprise me is how many homes are defined as blighted.
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June 28, 2006
Are Hohfeld's Fundamental Conceptions Useful?
One of Wesley Hohfeld's great contributions to legal theory was the observation that words like "rights" and "duties" can have many meanings. To remedy this problem, Hohfeld proposed a series of correlative concepts that would more precisely define legal relationships – claim-rights and duties; privileges and no-rights; powers and liabilities; and immunities and disabilities. Stephen Munzer noted that “Hohfeld’s vocabulary has no serious rival of its kind in intellectual clarity, rigor, and power,” and I have no reason to disagree. I’ve been wondering, though, whether the level of detail provided by Hohfeld’s vocabulary is actually useful. The initial point that the word “right” can have many meanings is an important one to keep in mind when considering all sorts of legal issues, and I’m all for precision in theoretical discussion. But I don’t think I’ve ever seen a theoretical discussion where Hohfeld’s vocabulary really added that much. Can anyone point me to one?
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June 27, 2006
Lopez on Property Theory (Republicanism and Liberalism) and Kelo
Alberto Lopez of Northern Kentucky University has recently posted Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo on ssrn. It appeared in volume 41 of the Wake Forest Law Review. His abstract reads:
This article explores the public use and just compensation clauses through the lenses of the political philosophies that inform eminent domain and the Takings Clause -- republicanism and liberalism. The article begins with a description of the historical origins of republicanism and liberalism in eminent domain theory. Next, the article traces the jurisprudential evolutions of the Takings Clause's public use and just compensation requirements, which are the constitutional representations of republicanism and liberalism associated with eminent domain. After discussing the Court's decision in Kelo, the paper assesses the balance between republicanism and liberalism comprehended by eminent domain and the Takings Clause both pre- and post-Kelo. Kelo tips eminent domain's philosophical balance heavily in favor of republicanism. As a result, I argue for the inclusion of subjective harm in the just compensation equation, which heretofore has not figured into the just compensation calculus. The article concludes that including an individualized assessment of the subjective loss suffered by a property owner as a result of eminent domain increases the liberalism comprehended by the just compensation clause. As a result, eminent domain's balance of political philosophies moves closer to equipoise.
I had the pleasure of reading Lopez' article in draft and I highly recommend it to you. It's a great exploration of issues of political theories of regulation of land use from the early national period through Kelo. And, as other property scholars (like Gregory Alexander) have noted, the struggle in Kelo has deep historical roots.
Endnote: Edward Hopper's Haskell's House (1924) is from the website of our friends at the National Gallery. I thought you'd enjoy a picture of a house that might be subject to taking. Plus, I love the telephone pole in the front of Victorian. What a combination of old and new. Reminds me of the image of property in American and Hawaiian landscape art.
Alfred L. Brophy
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Busyness and sprawl and crime
In my experience, most people who discuss the relationship between urban decay and crime treat the relationship as a one-way street: city crime causes people to leave cities, period.
But in Nicole Garnett's review of Bruegmann's and Joel Kotkin's new books (posted on SSRN, and referred to in a post on this blog a few days ago) she suggests that lower urban densities might induce crime by making cities less "busy" and more deserted- and thus that (to oversimplify the point into a sound bite) that sprawl might even cause crime in a sense.
I'm not sure there's any way to prove or disprove the theory- but if the argument is verifiable, it certainly leads to some interesting results.
Let's go back to the 1930s, when the FHA started to bribe people to move to suburbs with mortgage subsidies and all levels of government were beginning to make suburban commutes easier through road-building. A few people leave the (now safe) cities. Over the next few decades, a few city neighborhoods here and there become less busy and thus more dangerous, and the most risk-averse people start to trickle out. This causes neighborhoods to become even less busy and more dangerous which cause even more people start to trickle out, and eventually we have a vicious circle on our hands- a vicious circle that spirals out of control in the 60s (when for reasons unrelated to urban policy, crime increases everywhere in the United States).
And depopulation causes other problems that independently might increase crime. A city without a large middle and upper class might support more lenient policing policies which in turn might lead to more crime - another respect in which sprawl (or more accurately, the type of sprawl that depopulates cities, as opposed to sprawl in growing regions where there is enough population growth to build up city and suburb alike) might increase urban crime.
1. All of this is pretty speculative.
2. I think it is easy (but mistaken) to assume that crime is a problem that can be resolved solely through more enlightened city government. Even if you assume for the sake of argument that the criminal justice system has a major effect on crime (as opposed to, say, liberal morality, economic inequality, or family breakdown), criminal justice is more of a federal and state responsibility than a local responsibility. Cities may hire police, but states decide whether to build enough prisons to house the people arrested by city police, and both federal and state courts set the rules that decide how crowded those prisons can be and how easy it is to convict people arrested by the city police.
Is this really the end of Feudalism?
Following up on my post on Robert Palmer's English Law in the Age of the Black Death, I thought I'd post a little more on feudalism. An island I’d never heard of, Sark, has just ended its “feudalism.” (Listen to NPR's story here.) It is in the English Channel and is “owned by the Queen of England but not part of Great Britain.” Whatever that means. Anyway, the Parliament has consisted of forty Sark landowners. Now, it’s coming to an end. From here on out, there will be elections for the Parliament and 12 members will be landowners; 12 memebers will be non-owners. What is the world coming to? The Seigneur of Sark will maintain a few heredity rights–the right to keep the only unspayed dog on the island and the right to whatever washes up on the shore between the low and high watermark.
I seem to recall debate about whether feudalism ever existed, led by Susan Reynolds, Fiefs and Vassals. (Useful reviews here). Sounds like there are some pretty interesting resonances on Sark with the anti-rent movement in the upstate New York in the 1830s-1860s.
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June 26, 2006
more on Bruegmann
After a few weeks of being out of town, I got back to Bruegmann. One of his most widely publicized points is the universality of sprawl- the idea that because some rich people had country estates one or two or twenty centuries ago, the status quo is just fine. This argument rests on the assumption that if some sprawl is OK, lots of sprawl is even better.
But this kind of argument overlooks important differences of degree: every city may have some sprawling development, but not all cities are identical.
In the most sprawl-bound cities and metropolitan areas, most residents will be unable to get to classes, jobs or shops without driving, and carless residents are thus virtually helpless. For example, in Oklahoma City, a city with over 500,000 people, buses do not run at night or on Sundays, and thus the 8.2% of households without cars are essentially frozen out of jobs that require evening work.
And in cities planned around the automobile, streets are often so wide, and traffic moves so quickly, that the basic human act of walking outdoors becomes dangerous. Even residential streets are often dangerous for pedestrians due to the absence of sidewalks.
In such cities, most people need a car to function.
By contrast, less sprawling regions give residents a variety of transportation options. For example, the majority of New York City residents get to work via public transit, and the city has prosperous neighborhoods where most households own no cars. In metropolitan New York, transportation choice is not limited to city residents: New York City has some highly automobile-dependent suburbs, but also has two suburbs (Hoboken and Brownsville) where a majority of commuters use public transit regularly. In other words, New York, to a greater extent than other American cities, accommodates both consumer preferences for automobile-dependent sprawl and consumer preferences for less automobile-dependent lives.
So how much sprawl is too much? And how do you define "too much" sprawl?
It seems to me that if you need a car to live in a place, that place has too much sprawl- because at that point sprawl becomes not a result of consumer choice but a burden on consumer choice, freezing people who (for one reason or another) can't drive out of civic life, and imposing huge costs on people who can.
Executive Order on Public Use
File this one under "empty political posturing." On Friday, President Bush signed the following executive order:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:
Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.
Sec. 2. Implementation. (a) The Attorney General shall:
(i) issue instructions to the heads of departments and agencies to implement the policy set forth in section 1 of this order; and
(ii) monitor takings by departments and agencies for compliance with the policy set forth in section 1 of this order.
(b) Heads of departments and agencies shall, to the extent permitted by law:
(i) comply with instructions issued under subsection (a)(i); and
(ii) provide to the Attorney General such information as the Attorney General determines necessary to carry out subsection (a)(ii).
Sec. 3. Specific Exclusions. Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of:
(a) public ownership or exclusive use of the property by the public, such as for a public medical facility, roadway, park, forest, governmental office building, or military reservation;
(b) projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity;
c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right;
(d) preventing or mitigating a harmful use of land that constitutes a threat to public health, safety, or the environment;
(e) acquiring abandoned property;
(f) quieting title to real property;
(g) acquiring ownership or use by a public utility;
(h) facilitating the disposal or exchange of Federal property; or
(i) meeting military, law enforcement, public safety, public transportation, or public health emergencies.
Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(c) This order shall be implemented in a manner consistent with Executive Order 12630 of March 15, 1988.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.
GEORGE W. BUSH
THE WHITE HOUSE,
June 23, 2006.
This will achieve exactly nothing of real substance. The exclusions are pretty broad, federal agencies aren't actively engaged in economic development takings themselves, and there is no limit on federal funds to state projects that would violate the order.
Hat tip: Joe H.
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