Saturday, July 15, 2006

Justice Thomas' Dissents in Kelo and Jones v. Flowers

Kelohouse Over at blackprof, Emma Coleman Jordan has some important questions about Justice Thomas' dissent in Kelo.  Here's part sample of Professor Jordan's post:

[Justice Thomas] begins his analysis with an originalist interpretation of the “public purpose” clause of the Fifth Amendment, concluding that the majority has done violence to the original or “natural” meaning of the word “public use”.  His second line of argument is based on the instrumental consequence that urban redevelopment has disproportionately affected blacks, noting that “urban renewal came to be known as ‘Negro Removal’.  Thomas argues that:

In the 1950’s, cities “rushed to draw plans” for downtown development. “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.”. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland….. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation.   Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’  Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black.. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

Porfessor Jordan then asks: "Is the Kelo dissent a principled deviation from Justice Thomas otherwise color blind jurisprudence, or is it an unprincipled effort to use race to support his conservative originalist interpretation of the Constitution?  What contribution does the Kelo dissent make in understanding Thomas’ views on race conscious remedies?"

I hope that you'll check out her complete post.  I, of course, am delighted whenever justices look to the impact their decisions as a way of gauging what they sought do (and have done).  For me, one of the many troubling aspects of Kelo (and Midkiff, too) is the displacement of people who are not in a position to mobilize political support.

Professor Jordan's post raises for me a question about the contrast between Thomas' dissent in Kelo and his dissent in Jones v. Flowers(See Ben's excellent discussion of Jones here.)  The later showed relatively little concern with people who might lose their property and receive no compensation.  In his Jones dissent, Justice Thomas focused on the likelihood of success of notice by certified mail; he did not (as he did in Kelo) look to the reality, which was that certified mail and notice by publication had failed to give Mr. Jones notice that his property was subject to sale for a tax lien.

Endnote: The photograph of Ms. Kelo's house is provided by the Institute of Justice.  They have asked that we include the following copyright notice: Photos by Isaac Reese, 2004 © Institute for Justice.

Alfred L. Brophy
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July 15, 2006 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, July 14, 2006

Kyra Sedgwick and Property Law in the Nineteenth Century

Thanks to David Langum, I learned that Kyra Sedgwick (now starring in "The Closer") is related to someone important to us propertyprofs: Theodore Sedgwick, author of A Treatise on Constitutional and Statutory Interpretation.  His book is one of the great overlooked treatises in the nineteenth century.  He was also one of the few Democrats who wrote important work on law in the antebellum period.  The other great treatise writers were, I think, all Whigs.  Very interesting what that says about political orientation and law in the period.  (You may recall that Democrat Andrew Jackson was notoriously contempetuous of law.  However, as I was reminded recently when I read AJ's 1837 state of the union address, he, too, spoke of the "majesty of the law.") 

Ms. Sedgwick's engagement notice in the New York Times confirms that I have remembered David's story correctly.  She is the great-granddaughter of the historian and author Henry Dwight Sedgwick--which means that Theodore is, I think, her great-great uncle. That means Kyra Sedgwick's also related to Catherine Sedgwick--author of the novel Redwood.  I'll reserve my thoughts on Redwood for another day.

We need to speak of the Sedgwicks alongside some of the other great multi-generational families in American history: the Mather family in colonial New England; the Pastorius family, from Francis Daniel Pastorius, author of the first legal treatise in British North America, to twentieth-century jazz musician Jaco Pastorius; and the Pynchons, from seventeenth-century judge William Pynchon to twentieth-century novelist Thomas Pynchon.

Alfred L. Brophy
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July 14, 2006 | Permalink | Comments (2) | TrackBack (0)

Thursday, July 13, 2006

How Progressives Rewrote the Constitution

EpsteinprogressivesBeen going through some books that have come in recently for review in Law and History Review.  One that property profs may want to put on their summer reading list is Richard Epstein's How Progressives Rewrote the Constitution, which has just appeared from Cato.

Some interesting stuff in here, including Epstein's introduction where he concedes that a lot of the New Deal state isn't going away.  Of course, Epstein would still like to see some constitutional changes:

Years ago, in my 1985 book Takings, I took the position that the standard interferences with employment contracts, such as minimum wage laws, antidiscrimination laws (in competitive markets only), collective bargaining laws, and Social Security requirements, were unconstitutional, all on the ground that the state has no better knowledge of what individuals need than individuals themselves do.  I stand unapologetically by those positions today and think that the invalidation of those programs rests not on some narrowly egotistical view of private property but on the correct social ground that this view does us more good in the long run than the endless creation of various "unfair" practices, such as those under modern labor law, that introduce various forms of state monopolies, each of which further saps the productive juices from American society.  At the same time, I fully recognize that the mistakes of the past, such as the creation of Social Security, cannot be undone today in light of the extensive reliance interest that have been created.  . . .  But that acceptance of change should never by confused with the mistaken belief that long usage of accepted doctrine renders it necessarily immune from rational criticism and constitutional change . . . .

In a concluding chapter, "Progressivism Today," Professor Esptein criticizes Kelo.  It's going to get a lot of attention.

And while I'm talking about Professor Epstein, I should mention that I think you'll enjoy James Ely's article The Impact of Richard A. Epstein, on Epstein's influence on property jurisprudence.  (Ben discussed the paper here.)  It's a wonderful essay, which gets at the marrow of intellectual and legal history: how do ideas shape how people think and behave?  I love it.  And perhaps I'll have a little time later this summer to talk about it.  It certainly deserves a read by property profs and legal historians.

Here's a link to a video of Professor Epstein's speech about the book to the Cato Institute.

Alfred L. Brophy
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July 13, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Abolishes Rule Against Perpetuities

Last week, Pennsylvania enacted legislation that among other things abolishes the rule against perpetuities for interests created after December 31, 2006 (the link is to the Senate bill; the Governor approved the bill on July 7).  The legislation amends several code sections, but the following captures the essence of the bill:

20 PSA  § 6107.1.  Applicability of rule against perpetuities.
    (a)  Traditional rule.--Sections 6104 (relating to rule against perpetuities), 6105 (relating to rule against perpetuities; disposition when invalidity occurs), 6106 (relating to income accumulations; when valid) and 6107 (relating to income accumulations; disposition when invalidity occurs):
         (1)  shall apply to every interest created before January 1, 2007; but shall not apply to any interest created after December 31, 2006.
   (b)  Modern rule.--All of the following apply to every interest created after December 31, 2006:
        (1)  No interest shall be void as a perpetuity.
        (2)  No direction or authorization to accumulated income shall be void as a perpetuity.

As a result, Pennsylvania will retain its wait-and-see approach to the RAP for interests created before January 1, 2007, but will have no RAP for interests created January 1, 2007 or after.  The practical impact will be that specialists in trust litigation and related matters will need to know the RAP, but that the average practitioner drafting wills and trust documents in Pennsylvania will not need to worry about it.

Ben Barros

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July 13, 2006 in Future Interests and the RAP | Permalink | Comments (1) | TrackBack (0)

Turnipseed on Elective Share Statutes

Terry L. Turnipseed (Syracuse University College of Law) has posted Why Shouldn't I be Allowed to Leave my Property to Whomever I Choose at my Death? (Or How I Learned to Stop Worrying and Start Loving the French) on SSRN.  Here's the abstract:

This article analyzes whether the ancient common law concepts of dower and curtesy, and their modern day statutory equivalents – the elective share laws – should be substantially modified or eliminated. In modern America, forty-nine of the fifty states and the District of Columbia severely limit freedom of testation vis-à-vis surviving spouses. If, as a policymaker, one believes the marital partnership theory of marriage to be gospel, then by goodness change to community property and be done with it. Do not, as many states have done, choose separate property (an inherently non-partnership, eat-what-you-kill, philosophy) and then try to graft some back-end sorry excuse for community property at death. But if you truly believe, as I think many well-intentioned people do, that this is America, and we have a long tradition of property and testator freedom, then keep your separate property system and completely eliminate your elective share law. Those are really the only two options that have internally consistent logic.

If you eliminate the elective share laws, the sky will not fall. They have been doing it for decades in Georgia and all the empirical evidence shows that things are working just fine thank you. The fact that the privileged can pay their way out of any elective share law – by some estate planning technique or by moving money offshore – and the less financially fortunate cannot, is a real injustice that must be rectified. Let us eliminate the elective share laws for all, not just the well-to-do.

The elective share laws are terribly demeaning and paternalistic to women. Male dominated legislatures, though, continue to perpetuate belittling female stereotypes by saying through elective share laws that women are so incompetent and unable to stand up for themselves that the “little missies” still must be protected by some ancient magical sword. With literally every single disinheritance study showing de minimis rates of disinheritances that are not agreed to by the spouse, elective share laws seem like some ridiculous school child's Rube Goldberg machine trying to solve in as complex a manner as humanly possible a problem that really does not exist. Every few years, mostly male law professors huddle to build a better mousetrap to keep their evil male counterparts from doing something they have little or no desire or motivation to do, and in the process precious freedom – for both men and women – loses out.

Ben Barros

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July 13, 2006 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 12, 2006

Laughlin on Cultural Preservation

Stanley K. Laughlin (Ohio State Law School) has posted Cultural Preservation in Pacific Islands: Still a Good Idea - and Constitutional on SSRN.  Here's the abstract:

This article deals with certain legal and policy issues in the non-state insular areas of the United States (American Samoa, Guam, Northern Mariana Islands, Puerto Rico and the United States Virgin Islands), and less directly with islands in “free association” with the United States (Federated States of Micronesia, Marshall Islands, Palau.)

Many, perhaps most, insular areas of the world, due in large part to geographic separation, maintained their traditional cultures well into the 20th Century. With the onslaught of modern communications and transportation, preserving those cultures or even parts of them, now requires conscious effort. The author agrees that cultural preservation is a worthwhile objective, but notes that not everyone does; for example, those who believe that cultural preservation laws (e.g., laws restricting alienation of land) interfere with the “invisible hand” of the market and retard economic progress. The article notes that in U.S. areas there is another potential barrier to cultural preservation, the United States Constitution. Law restricting ownership of land to indigenous people, for example, have been challenged as alleged violations of the equal protection principle. The author argues that well-designed cultural preservation laws, including laws prohibiting or regulating sale of land to outsiders, should pass muster on both legal and policy grounds.

The author examines the unique cultures of some of these islands and notes that they have many qualities worth emulating. He also challenges the argument that cultural preservation retards economic progress. On the law side, he examines the historical development of doctrines pertaining the application of the U.S. constitution in non-state areas.

The article then focuses on the important Ninth Circuit case of Wabol v. Villacrucis. That case, quoting from an earlier article by this author, fashioned a rule that allows for the application of important constitutional protections in territories, but also permits exceptions when strict application might jeopardize the indigenous culture. The author argues that Wabol was correctly decided, and should remain the controlling precedent in this area of law (despite some current criticism of the case).

Ben Barros

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July 12, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 11, 2006

Landlords and exchanges

Couple of quick notes for the morning here: the Village Voice has its most recent installment in the long-running series, "The Ten Worst Landlords of New York."  Check it out.  There's the makin's of some great property exams in there.

Also, our friends over at 1031 exchange blog are doing some interesting things.  Check them out.

Alfred L. Brophy

July 11, 2006 in Miscellaneous | Permalink | TrackBack (0)

Gold Rush and Property Rights

Californiamaploc_1 I've been reading Karen Clay's Squatters, Production, and Violence, which is available on ssrn. Clay's abstract reads:

This paper uses a model and historical data from California in 1860, a time at which property rights were uncertain, to investigate the links among property rights, production, and violence. Consistent with the model, squatters had production that was 15-47 percent lower than non squatters; a 10 percent increase in the density of squatters was associated with an 8-17 percent decrease in agricultural output per acre, and, at levels above the mean, increased density of squatters was associated with higher levels of violence. The market for squatting does not appear to have been in equilibrium. This may reflect the imperfect information available to squatters, sorting based on a taste for violence, or our use of aggregate data. We then compare our results on agricultural production for California to results for other states west of the Mississippi in 1860 and in 1880. The negative effects of squatting were widespread in 1860, but by 1880 the effects had abated in many places as the number of squatters fell. The results on production and violence have implications for understanding the historical development of agriculture in the United States more broadly, since squatting on agricultural land was prevalent throughout the United States, and for understanding agriculture in the Third World, since uncertain property rights in agricultural land are still an issue today.

Pretty interesting study.  And it reminds us of the importance of stability in property rights (and lots of other rights, too).  And maybe makes one believe that the state has a larger role than we sometimes credit it, in creating order and fostering economic development.

Endnote: The map of California is from our friends at the Library of Congress.

Alfred L. Brophy
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July 11, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Monday, July 10, 2006

More Takings Legislation Blogging

On subjects relating to recent posts here, Eduardo Penalver has a follow-up post at CoOp on takings legislation like Oregon's Measure 37, and Ilya Somin has a post a the VC on legislation putatively aimed at preventing Kelo-style economic development takings.

Ben Barros

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July 10, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Property Theory in a Nutshell

From the introduction to Richard Pipes' book Property and Freedom:

Discussions of property from the time of Plato and Aristotle to the present have revolved around four principal themes:  its relation to politics, ethics, economics, and psychology.

1.  The political argument in favor of property holds that (unless distributed in a grossly unfair manner) it promotes stability and constrains the power of government.  Against property it is claimed that the inequality which necessarily accompanies it generates social unrest.

2.  From the moral point of view, it is said that property is legitimate because everyone is entitled to the fruits of his labor.  To which critics respond that many owners exert no effort to acquire what they own and that the same logic requires everyone to have an equal opportunity to acquire property.

3.  The economic line of reasoning for property holds that it is the most efficient means of producing wealth, whereas opponents hold that economic activity driven by the pursuit of private gain leads to wasteful competition.

4.  The psychological defense of property maintains that it enhances the individual's sense of identity and self-esteem.  Others assert that it corrupts the personality by infecting it with greed.

These four approaches fairly exhaust the range of arguments for and against property articulated during the last three thousand years.

Well, I guess I'll just assign this for my Property Theory seminar in the fall and take the semester off.

Ben Barros

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July 10, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Georgetown Conference on Economic and Social Inequality

Gulc Thanks to a post from Emma Coleman Jordan over at blackprof, here's a link to a webcast of an important conference on Economic and Social Inequality at Georgetown University Law Center in March.  Propertyprof readers may be particularly interested in the panel on Property Ownership and Asset Equality, which has excellent presentations by Thomas M. Shapiro of Brandeis University, Robin Paul Malloy of Syracuse University Law School, Daria Roithmayr, of the University of Illinois Law School, and  Bernadette Atuahene, Chicago-Kent College of Law.  I think you'll enjoy it.

Alfred L. Brophy

July 10, 2006 in Conferences | Permalink | TrackBack (0)

Klass On the Common Law and Federalism

Alexandra B. Klass (University of Minnesota - Twin Cities - School of Law) has posted Common Law and Federalism in the Age of the Regulatory State on SSRN.  Here's the abstract:

Over the past several decades, the growth of federal statutes and the rise of the regulatory state have weakened and displaced state common law even in the absence of express or implied preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than overshadow or displace it. Moreover, in this current age of the “new federalism,” such progressive common law development at the state level may be particularly timely and appropriate. This article uses these principles to provide a new perspective on the evolution of environmental law from its common law beginnings, to the flurry of federal statutes and regulations beginning in the 1970s, to present-day state and local environmental protection initiatives, and to argue for increased emphasis on state common law in modern environmental protection efforts.

Ben Barros

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July 10, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, July 9, 2006

Penny Lane, the Slave Trade, the Beatles, and Monuments

Penny_lane This morning's paper brings this news: that Penny Lane of Beatles' fame was named after James Penny, an eighteenth century Liverpool merchant who engaged in the slave trade.  There's a move afoot in Liverpool to rename the streets named after slave traders.  Of course, Penny Lane isn't going to be renamed.  Not even the proponent of the renaming supports that.

Much as Penny Lane is in our eyes and in our eyes, the slave trade is closely related to our history.  Seemingly everywhere we look, we see connections to the era of slavery.  There's a lot of talk about renaming things--parks, college buildings (Vanderbilt University's Confederate Memorial Hall is the most prominent example here), and now streets.  Seems to me as though there are at many competing issues here, including:

whether by removing names, we forget the lessons of the past;
whether by removing names we inappropriately dishonor people who deserve recognition;
whether by removing names we inappropriately break with tradition;
whether by keeping names we honor people who do not deserve that honor or provide support to a cause we don't mean to support.

I had some thoughts on the United Daughters of the Confederacy lawsuit against Vanderbilt last fall while visiting over at co-op.  Until now, the connection between Penny Lane and the slave trade has been (largely) forgotten; now we're talking about it again.

Endnote: The photograph of Penny Lane comes from Twang's musings.

UPDATE: This morning's Seattle Post-Intelligencer also has an article on the movement for reparations, which has been slowly gathering momentum at the local level.  The movement, the article points out, has shifted largely to the local level and to talk about Jim Crow, rather than slavery.  I discuss this in Reparations Pro and Con, which will be out shortly.

Alfred L. Brophy
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July 9, 2006 | Permalink | Comments (0) | TrackBack (0)