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Saturday, July 8, 2006

Post-Kelo Eminent Domain Reform

Bert Gall of the Institute for Justice has an interesting post on post-Kelo eminent domain reform, and Ilya Somin has some good comments on the issue at the VC.

Ben Barros

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July 8, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

The Break-up: Implications for Teaching Rights of Co-Tenants

Breakup In the spirit of Michael's post on property in Superman (very nice post, btw).... I just went to see the new Jennifer Aniston and Vince Vaughn movie, The Break-up.  It's about . . . an unmarried couple's break-up.  Always trying to turn time spent on non-productive stuff, like watching movies, into something useful--so I started thinking about its implications for property class.  Aniston and Vaughn are co-owners of a condominium in Chicago.  A significant part of the movie revolves around Aniston and Vaughn annoying each other as they're still living together.  They divide the condo into rooms that are common and separate and then do a bunch of things to constructively evict the other.  (Aniston has her brother's acapella singing group practice in her bedroom; Vaughn brings in a pool table--and then does a lot more outrageous things later.) 

Property profs may want to draw on it when talking about rights among co-tenants.  So next time you teach Schwartzbaugh v. Sampson (a case I find difficult to teach well), roll out a few examples from The Break-up (you can get the short-version at the movie's website.)

I'll avoid commentary on Jennifer Aniston's clothes (you can find some of that from our friends over at concurring opinions).  I do, however, have some thoughts on the movie.  In talking with the people whom I went with, I commented that I didn't enjoy the ending--it ends with Aniston and Vaughn going different ways, it appears.  So one of my friends said, "Al, you write about slavery and race riots.  How can it bother you that a movie doesn't have a cliched, happy ending?"

Endnote: Nice product placement, don't you think?  A little pushy, but I got the idea from the movie, which sprinkled a bunch of Budweiser advertisements on us.

Alfred L. Brophy
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July 8, 2006 | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten

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

1. (84) The Uselessness of Public Use, Abraham Bell (Bar Ilan University and Fordham Law School) and Gideon Parchomovsky (University of Pennsylvania - School of Law)

2. (70) The City as an Ecological Space: Social Capital and Urban Land Use, Sheila Foster (Fordham University School of Law)

3. (63) From Direct 'Public Use' to Indirect 'Public Benefit': Kelo v. New London's Bridge from Rational to Heightened Scrutiny for Eminent Domain Takings, Trent Christensen (Brigham Young University)

4. (59) Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo, Alberto Lopez (Salmon P. Chase College of Law)

5. (57) Save the Cities, Stop the Suburbs?, Nicole Stelle Garnett (Notre Dame Law School)

6. (51) The Puzzle of the Optimal Social Composition of Neighborhoods, Robert C. Ellickson (Yale Law School)

7. (50) Mine & Thine Distinct: What Kelo Says about our Path, Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project)

8. (49) Once a Mortgage, Always a Mortgage - The Use (and Misuse) of Mezzanine Loans and Preferred Equity Investments, Andrew Berman (New York Law School)

9. (43) Nothing 'Errant' About It: The Berman and Midkiff Conference Notes and how the Supreme Court got to Kelo with its Eyes Wide Open, Benjamin Barros (Widener University - School of Law)

10. (41) Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other 'Quaint' Doctrines Can Improve Decisionmaking in Negligence Cases, John C.P. Goldberg (Vanderbilt University - School of Law) and Benjamin C. Zipursky (Fordham University School of Law)

Ben Barros

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July 8, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, July 7, 2006

Washington State Takings Ballot Initiative

Over at CoOp, Eduardo Penalver has a great post on a proposed Washington State ballot initiative similar to Oregon's Measure 37.  Eduardo and I disagree on a number of takings issues -- for example, I think that Lucas v. South Carolina Coastal Council was 100% correct, while he is more skeptical.  We completely agree, however, that this type of initiative or legislation is really bad news.  I'm very sympathetic to the property rights side on a lot of takings issues, but as I've observed before, property rights advocates have never made a convincing transition from criticism (often valid in my view) of regulations that result in a severe diminution in property value without compensation to making a convincing argument for a rule that requires compensation for any diminution in value.

If this measure passes, however, I wouldn't blame property rights advocates or out-of-state political operatives.  I'd blame regulators on all levels who too often act as if screwing property owners will not have political consequences.  (C.f., the Kelo backlash).  Eduardo observes that these initiatives are "often portrayed as the result of broad grassroots outrage at over-regulation," going on to note the role of property-rights organizations in getting the initiatives on the ballot.  While I'm well aware of the flaws in ballot initiative voting, property rights organizations don't vote.  It seems to me very likely that Measure 37 passed overwhelmingly over concerted opposition because Oregon voters were pissed.  At a certain point, arguments that voters just didn't understand what they were voting for just don't hold up anymore.

UPDATE:  Eduardo has further thoughts here; Geoff Manne and Will Baude have defenses of this type of initiative here and here.

Ben Barros

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July 7, 2006 in Land Use, Takings | Permalink | Comments (4) | TrackBack (0)

Converting Taro Patent Rights into Common Rights

Taro_fields Carl Christensen sent me this important news: the University of Hawaii has filed with the US Patent Office to disclaim its interest in taro that was genetically altered by UH faculty.  This has been greeted as good news by Native Hawaiian advocacy groups (and here, too).

Some pretty interesting issues here.  Taro occupies a central place in Native Hawaiian religious and cultural beliefs.  So the University's altering and then converting taro into property was objectionable, to say the least.  What's interesting is that converting private property into common property seems to have aleviated much of the concern.  I'm wondering if the problem was that UH was altering taro or converting taro into private property.  If the former (which is what I might have thought at first would be the problem), it's not so clear to me how the conversion into common property would aleviate those concerns.  Perhaps, then, it's the later.  In which case, this controversy may be a piece of aloha jurisprudence.

Endnote: The picture of a taro field on Kauai, Hawaii, is from our friends at wikipedia.

Alfred L. Brophy
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July 7, 2006 | Permalink | Comments (0) | TrackBack (0)

over at my blog...

Joel Kotkin has a weird rant at Newsweek, and I respond to it on my blog.

Kotkin baffles me; he agrees with New Urbanists that suburbia could use a bit of change, but he goes out of his way to attack anyone (other than himself) is the tiny bit critical of the sprawl status quo. 

I also have a post on Brookings' new study on the decline of middle-income neighborhoods.  The press has reported (correctly) that cities have more rich neighborhoods and more poor neighborhoods than they did 30 years ago.  But I found another story hidden in the middle of the study: despite all the ranting in the popular press about gentrification, most cities have a lot more poor neighborhoods than they did in 1970.

Michael Lewyn

July 7, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Thursday, July 6, 2006

Whistling Dixie

I told myself I wasn't going to do anything other than work on my paper on the Fugitive Slave Act of 1850 and what it teaches us about public perceptions of the rule of law in antebellum jurisprudence.  But, Mr. Ingram's covenant against Yankees has resufaced.  (Thanks to Volokh Conspiracy, who brought this to my attention and Never Yet Melted, which brought it to Volokh's attention.)  A lesson here: be careful what you put in covenants.

Way back in 1998, when this first made the news, Shubha Ghosh (of the antitrustprof blog) and I wrote a short (and we hoped amusing) essay on the covenants.  The covenants purport to prohibit sale to any member of the Yankee. Yankees are defined as people who've lived north of the Mason-Dixon line for more than a year or were born north of the Mason-Dixon line.  But didn't Ingram also include an exemption: if Yankees take a southern loyalty oath and whistle dixie as a sign of loyalty, then you can buy the property.

Lots to say about this, including that Langdon Cheeves once owned the property.  And you know what?  His daughter, Louisa McCord, who was one of the leading proslavery writers of the 1850s, lived in Philadelphia for a few years while her father was serving as president of the Second Bank of the U.S.  Guess she couldn't buy the property under the covenant.

The buyers should have little fear: the covenant's unenforceable.  It's a violation of the restraint against alienation; the benefit's in gross (it seems), so the burden won't run to subsequent buyers; it's likely now been waived by laches (according to the most recent paper, no one's tried to enforce it); and it likely violates the Fair Housing Act.

I use this example in class every year when talking about covenants.  Makes for some amusing discussion.

I've posted our paper here.

UPDATE:  Our friends at the Island Packet, the newspaper that broke the story about the current problems with Mr. Ingram's covenants, ran my op-ed on the problems with them on July 17,

Alfred L. Brophy
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July 6, 2006 in Land Use, Servitudes | Permalink | Comments (0) | TrackBack (2)

Yet More Aloha Jurisprudence

Pioneeruh I posted a little bit about "aloha jurisprudence" in April.  The basic idea here is that Hawaii's court are taking direction from what the Hawaii statutes call the "aloha spirit": "the working philosophy of native Hawaiians(;) ... 'Aloha' is the essence of relationships in which each person is important to every other person for collective existence." HRS § 5-7.5(a).

A few weeks ago I wrote a little bit about Makila Land Company v. Heirs of Apaa, which is a recent intermediate court of appeals opinon that dealt with a claim to property from the nineteenth century.  The plaintifs believed they were intestate heirs of Apaa; the court reserved the trial court's dismissal of their claim, in part because the court took testimony on the meaning of a Hawaiian kinship term, "makuakane."  (More evidence of aloha jurisprudence, I think.)

The question that one might have in Makila Land Company is: why would what happened in the late nineteenth century matter?  Wouldn't a claim founded on such old claims be barred by the statute of limitations?  Well, perhaps not.  And that's where the Hawaii Suprme Court's 1999 opinion in Pioneer Mill Company v. Dow comes in.

Pioneer Mill, which was argued by my former colleague Carl Christensen, dealt with a claim to land on Maui that was owned by Thomas Phillips at his death in . . . 1864.  Phillips' wife, Kahoonaeha, and Thomas'his first wife's brother, John White, each ended up with a half interest in the property.  Kahoonaeha left life estates to her daughter and grandson and White transfered the property to his son and grandson in 1880 (apparently without consultation with Kahoonaeha or the life estate holders).  After some more transfers, the property came into the hands of one E.G. Gerreira in 1907 and, ultimately, into Pioneer's hands in 1924.

Pioneer asked for summary judgment against the claim in 1994, arguing that it had "openly, notoriously, continuously and exclusively used the land."  And although the intermediate court of appeals accepted their argument, the Hawaii Supreme Court reversed because Pioneer Mill did not meet its high burden of showing by clear and convincing proof that it adversely possessed the property.  The court reached back to some nineteenth century precedent (as well as some more recent cases) to hold that: if the initial occupation is permissive, then there is a presumption of continued permissive occupation until

such time as the adverse claimant shows, by words or acts sufficient to give notice to the contrary to an ordinarily prudent and vigilant owner, that he, she, or it, the adverse claimant, had changed its character and was thereafter occupying adversely.

Pioneer MIll could still rebut that presumption, obviously--but it needed to show some evidence other than long-term occupation (apparently) to do so.  Mighty nice of Justice Mario Ramil and the rest of the Hawaii Supreme Court to help out the heirs that way.  It's the aloha spirit in action, I think.

You may use other cases to teach the difficulty of adverse possession against co-tenants.  If you teach in Alabama, you might use Ex Parte Walker, 739 S.2d 3 (Ala. 1999).  You might also use some of the cases discussed in Helen Jenkins, Study of the Intersection of DNA Technology, Exhumation, and Heirship Determination as it Relates to Modern-Day Descendants of Slaves in America, 50 Alabama Law Review 39 (1998).  I hope that you'll also think about using Pioneer Mill with your students.  I'm guessing that it might start appearing in some casebooks shortly.

Endnote: The image of a Pioneer Mill building is from the University of Hawaii's Center for Oral  History  page on Pioneer Mill, a company founded in 1862.  More images of abandoned Mill buildings and a story about the Mill here and a really cool 360° one of the Mill here.

Alfred L. Brophy

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July 6, 2006 in Future Interests and the RAP | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 5, 2006

Mingardi on Rosmini's Property Theory

Alberto Mingardi (Fondazione Liberal) has posted an abstract of A Sphere Around the Person: Anonio Rosmini on Property on SSRN.  The article itself can be downloaded from the Journal of Markets and Morality's website.  Here's the abstract:

Father Antonio Rosmini-Serbati (1797–1855) is an author of growing interest and curiosity to his fellow churchmen, as well as to secular intellectuals, as a philosopher who successfully reconciled reason and faith. Nevertheless, the political nuances of his thought have barely been explored by English-speaking scholars, and even among his Italian followers these have not been fully appreciated.

This article attempts to present an overview of Rosmini's political philosophy, focusing on his concern for the protection of private property rights and arguing that it is precisely his advocacy of private property that determines his attitude toward the general organization of associated life, government, and democracy.

The organization of this investigation consists of four parts. The first provides a brief biographical sketch of Antonio Rosmini. The second tentatively enlists the main influences in the development of Rosmini's thought as far as politics and economics are concerned. The third is devoted to examining his approach toward property. The fourth examines his definition of social justice in the light of his justification of property.

I just took a quick read through this article, and it is very interesting.

Ben Barros

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July 5, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

real estate in the movies

I just saw the (mostly mediocre) movie Superman Returns, and it actually involves land use issues.

Lex Luthor, the villian, plots to build a new continent using technology from Krypton (Superman's home planet).  His reasoning? The old cliche about how people cannot manufacture any more land, so if he "makes" more land by creating a new continent, people will be flocking to buy his land.

Unfortunately there are a slight implausibility that the movie is too dumb to address:  Luthor says that the erection of his new continent will somehow cause the flooding and destruction of most of North America.  But if most would-be buyers are drowned, doesn't that reduce demand for Luthor's new real estate quite a bit? 

Michael Lewyn

July 5, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 4, 2006

Happy Fourth of July

Bunker_hill_monument_200108 Happy Fourth of July.  One of the great treasures of my home town, Tuscaloosa, is our paper, the Tuscaloosa News.  The T-News has great stories of local interest, like this one on the celebration (or non-celebration) of July Fourth in the years after the Civil War.  (Registration required).  And what did this morning's T-News bring?  This awesome front-page story on Nevada Hubbard-Ely, who's worked for (and lived at) the largest local cemetery for decades.  Here's a flavor of the story:

[Ms. Hubbard-Ely] worked alongside her husband and, once a phone was installed, she answered it at all hours. She marked off burial sites, maintaining payroll records and helping the bereaved locate graves, although she wasn’t officially put on the payroll until 1950.

“I did just about everything but dig the graves," she said.

Back then, the cemetery was just that: a spot to bury loved ones. The office, which was in Tuscaloosa, was moved onto the grounds in 1952. The chapel was built in 2002, when the business began offering funeral services as well as burials.

In its earliest days, the area was still outside the city limits and so isolated that cows were pastured right next door. Neighbors also grew corn and raised roosters. From the time James Austin purchased the cemetery land in 1929 until the Hubbards arrived to take care of it, there were only 480 burials. Now, Hubbard-Ely said, there have been at least 15,000.

...

No ghosts have haunted the grounds, at least none that have made themselves known. Her only night visitors over the years have been, in the early days, mourners looking for a spot to place their just-departed loved one, or hapless fraternity pledges who were dropped off at the cemetery in the middle of the night to find their way home, a ritual known as Hell Week.

The boys sometimes came knocking at the door as late as 1 a.m., Hubbard-Ely recalled.

“They’d turn the boys loose with a box of matches," she said. “They were so appreciative of our help, we’d get visitors every night during Hell Week."

Nothin' like stories on cemeteries (or cemetery law), are there? 

That also set me to thinking about what other people in the blogosphere are posting to celebrate July Fourth.  It's well-known among historians that July Fourth orations are a great vehicle into the minds of the orators.  You may have read Michael Kammen's A Machine that Would Go of Itself.  It's a brilliant--and I do mean brilliant--use of sources (July Fourth orations) to get at changing meanings of the Constitution.  (I've been working for years on college orations in the antebellum era; one of my smaller essays on antebellum orations at the University of Alabama is available here.)

And so perhaps posts----the modern version of the July Fourth oration--will give us some peek inside their minds.  We see over at volokh that Randy Barnett's talking about Frederick Douglas' sobering What to the Slave is the Fourth of July.  And Emma Coleman Jordan is talking about Martin Luther King, Jr.'s papers as private and public property.  Why, I wonder, aren't people talking about Tom Paine's Common Sense or John Adam's Disseration on the Canon and Feudal Law?

I'm running really far behind on my summer writing--in fact, I'm starting to panic that my papers on the Fugitive Slave Act and moral philosophy and on anti-feudalism in American property law won't be finished by the times students arrive in the fall--so I didn't write the piece I'd been planning for the Fourth of July (on W.E.B. DuBois' empirical work on housing in Baltimore), but I hope to get that up sometime soon.

Endnote:  The picture, which is provided by our friends at wikipedia, looks a lot like the Washington Monument, doesn't it?  It's the Bunker Hill Monument in Boston, built in 1823.

Alfred L. Brophy

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July 4, 2006 | Permalink | Comments (0) | TrackBack (1)

Monday, July 3, 2006

End Stages of Kelo Saga

Todd Zywicki has an update at the VC describing the settlements reached with the last homeowners.

UPDATE:  Kurt Paulsen sent along links to good articles on the latest in New London from the Hartford Courant and the LA Times.

Ben Barros

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July 3, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, July 2, 2006

Federal Farm Subsidy: Buy a House, Get A Check from the Feds

Adams The Washington Post has a major story on farm subsidies, now known as countercyclical payments.  It's well worth a read; here's a sample:

Most of the money goes to real farmers who grow crops on their land, but they are under no obligation to grow the crop being subsidized. They can switch to a different crop or raise cattle or even grow a stand of timber -- and still get the government payments. The cash comes with so few restrictions that subdivision developers who buy farmland advertise that homeowners can collect farm subsidies on their new back yards.

...

"The farm policy we're pursuing now has no rhyme or reason, and we're just sending big checks to big farmers," said Gary Mitchell, now a family farmer in Kansas who was once a top aide to then-Rep. Pat Roberts (R-Kan.), the 1996 bill's House sponsor. "They're living off their welfare checks."

...

There're some important political lessons in this:

"The strength of the farm lobby in this town is really unbelievable," [Dick] Armey said. "I don't think there's a smaller group of constituents that has a bigger influence."

Then there's this sad punchline: tenant farmers are being evicted, so that the owners can collect subsidies:

Among the most fervent critics of the annual payments are hundreds of Texas farmers who rent land on which they grow rice. Under the rules, tenants receive the money if they operate the farms. But landlords can simply increase rents to capture those payments.

Other landlords have evicted the tenants from land they had farmed for years. Then the landowners can collect the checks themselves, even if they do not farm.

Stephen J. Zapalac, a former rice farmer, explained what happened:

"As soon as [his landlords] figured they could take the payments, they said, 'I don't need you anymore,' " he said. "They were renting me land for $40 an acre, but they could get $125 an acre from the government."

At least it's a mere $1.3 billion.

Endnotes: There are some great graphics that accompany the story, including a graphic of how the federal farm subsidies evolved from the New Deal to today.  The illustration is an Ansel Adams photograph of farming at the Mazanur relocation camp during World War II.  I was looking for a picture of a farm that received subsidies during the New Deal at the Library of Congress and stubbled upon this, rather different farm.

Al Brophy
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July 2, 2006 | Permalink | Comments (0) | TrackBack (0)