PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, July 22, 2006

Southeastern Association of Law Schools Conference

Fugitive_slave_act_1850 I'm back from the Southeastern Association of Law Schools (SEALS) conference.  Always good to see old friends and people whom I know from the blogosphere, as well as make new friends.  As to the blogosphere, Dan Solove, Paul Secunda, Steve Vladeck, Dan Markel, Ann Bartow, Ellen Podgor, and Peter Henning all spoke. And lots of propertyprofs, too, including Carol Brown, Mitch Crusto, Kali Murry and Alberto Lopez.  James Kelly presented his important new paper on Urban Communities, Eminent Domain, and the Socioeconomics of Just Compensation.  I'll have some thoughts on Kelly's paper next week.

I was on a panel on slavery, chaired by David Millon.  Jason A. Gillmer gave an important paper (which will be out in the North Carolina Law Review early next year) on a case of a slave accused of raping a white woman in Arkansas in the 1850s.  Check it out at bepress now.  The trend these days in legal history is often to micro-historical studies (like the Tulsa riot); it's always heartening to see how much insight one can wring from an intensive study of one case.  Gillmer's paper reminds me of one of my favorite books, Celia, A Slave, which I highly recommend to you, along with Jason's paper.

Adrienne Davis was, as always, brilliant.  This time she looked at the complexities of race, gender, and property from will cases involving white men who left property to formerly enslaved women.  Great, great stuff.  It's related to Adrienne's terrific article in the Stanford Law Review, "The Private Law of Race and Sex: An Antebellum Perspective" (abstract available here).  You ought to read it.  I cannot remember a finer article in legal history published in the last decade--and believe me, there have been a lot of contenders for that high praise.

I presented the first draft (version 1.0) of a paper on "The Fugitive Slave Act of 1850 in American Jurisprudence."  Where others have been interested in the antislavery response to the act (Robert Cover, for instance, was interested in how anti-slavery judges reacted and why so many abided the act), I'm interested in what the debates over the act say about main currents in jurisprudence, including

  • the conflict between the rule of law and humanity to individual slaves;
  • considerations of slavery's overall utility to society against considerations of individual slaves;
  • considerations of the practical implications of abolition against abstract religious ideas about abolition of slavery; and
  • the role of historical "evidence" about the ubiquity and necessity of slavery.

I began with a vignette from Uncle Tom's Cabin, of an Ohio state senator who argued against aiding fugitive slaves.  However, when confronted with Eliza and her child Harry, who were fleeing slavery in Kentucky, the senator helped them.  That's how Stowe set up the conflict between law and humanity.  I then use the act to talk about how considerations of the rule of law, utility, and history all combined to impede the process of reform (abolition).  The language that the legislators spoke correlates closely with that of many ministers and college professors and, especially, jurists.  And together I think those debates give a good picture of how the majority of antebellum Americans thought about issues of law and reform.  I think the debates can give us a good way of understanding the powerful forces that law reformers of any kind, not just abolitionists, were up against (to paraphrase David Brion Davis).  And how considerations of utility and historical evidence of inequality in human society combined to make it unlikely that judges would depart from precedent.  This is the flip side of the emergence of an "instrumental conception" among common law judges in the nineteenth century that Morton Horwitz talks in The Transformation of American Law, 1780-1860 (1977).  For these conceptions of law are about restraining--or distinctly limiting and channeling--legal change.  I talk some about this in relation to common law judging in "Reason and Sentiment: The Moral Worlds and Modes of Reasoning of Antebellum Jurists" in the Boston University Law Review back in 1999 and a little in this paper on antebellum literary addresses at the University of Alabama.

The highlight of the panel for me was the discussion; we actually had enough time to have a serious discussion with the audience--very enlightening.

Endnote: The image, the text of the Fugitive Slave Act, is from our friends at the Library of Congress.

Alfred L. Brophy
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July 22, 2006 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, July 20, 2006

Jacoby on Bankruptcy Reform and Homeownership

Melissa B. Jacoby (UNC Chapel Hill School of Law) has posted Bankruptcy Reform and Homeownership Risk on SSRN.  Here's the abstract:

The personal bankruptcy system is part of a larger system of household risk management. Much of the discussion of personal bankruptcy has focused on bankruptcy's insurance role with respect to unsecured obligations like credit cards and medical bills. In this symposium contribution, I redirect the analysis by evaluating the bankruptcy system, and particularly chapter 13, as a mortgagor protection law. In particular, I explore how bankruptcy might be encouraging and prolonging unsustainable homeownership at significant financial and psychosocial cost. I then consider the impact of two recent revisions to the Bankruptcy Code relating to credit counseling and repeat filers. I conclude that these revisions may improve the system modestly by enabling sorting based on homeownership sustainability.

Ben Barros

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July 20, 2006 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Dana on Kelo and the Poor

David A. Dana (Northwestern University School of Law) has posted The Law and Expressive Meaning of Condemning the Poor After Kelo on SSRN.  Here's the abstract:

The Supreme Court's decision in the Kelo case has been widely criticized, and has ignited a firestorm of “reform” in the states. Twenty three state legislatures have passed reform statutes, and nineteen of these statutes have been signed into law. Reform legislation has been introduced in at least 13 other states. This Essay addresses the question of what message is sent by – what is the expressive meaning of – the Kelo-inspired reform movement. My argument is that, in substantial part, this reform movement privileges the stability of middle-class households relative to the stability of poor households, and in so doing, expresses the view that the interests and needs of poor households are relatively unimportant.

Ben Barros

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July 20, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Cemeteries and Politics

Nationalcemamd On Tuesday I saw Christina Wells deliver an important paper on the constitutional law implications of 38 USC 2413, which restricts protests at Arlington Cemerty (or any other National Cemetery).  Pretty interesting stuff going on there.  Congress wanted to preserve the dignity of funerals.  (The background here is that some people protest at funerals of soldiers killed in Iraq and they say things along the lines of, the war is retribution for the United States' tolerance of gays.  Congress is trying to preserve the dignity of the funerals by prohibiting protests on cemetery property and near them, as well.)  Another chapter in the growing body of cemetery law....

I’ve written before that one of the things I love about Tuscaloosa is our local paper, the Tuscaloosa News.  It has charming stories of local interest, often about cemeteries and monument law.  Here is part of a letter to the editor to the Tuscaloosa News 4A (August 23, 2005), about the Tuscaloosa Mayor’s race, in which the author of the letter emphasizes . . . cemetery preservation:

The candidates for mayor are all honorable men. . . . I don’t know the candidates up close and personal; hence, I devised a personal litmus test.  I called each and left my name and number on their answering machines, after explaining I had a question about the unkempt and overgrown black Tuscaloosa cemeteries.  All other attributes being essentially equal, I will vote for and urge support for Walter Maddox, who told me that, if elected, he would clean the cemeteries and bill the owner(s) and continue doing it until the issue is settled.

Look for more talk about cemeteries and monuments.  As we grow increasingly conscious of our history, concern about cemetery preservation will grow as well.

Endnote: The image, "National Cemetery, path to statue "At Rest", Antietam, MD," is from the Library of Congress' website.  The original in the Loeb Library, Harvard University Graduate School of Design.

Alfred L. Brophy
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July 20, 2006 | Permalink | TrackBack (0)

Tuesday, July 18, 2006

What Academic Law Journal has the Most Subscribers?

This little bit of trivia was inspired by reading Professor Michael Madison's charming essay, "The Idea of the Law Review: Scholarship, Prestige, and Open Access."  Professor Madison's essay has a number of virtues.  Prime among them: it's actually funny.  Try these lines out:

Once Lexis/Nexis and Westlaw started putting full texts of law reviews on their databases, the authority of print started to recede, leaving the authority of the publisher and, to a lesser extent, the authority of limited access.  A lot of law professors these days never actually handle original physical copies of law review articles, unless they're stuffing envelopes with reprints to send out to colleagues.  The patios of the profession long ago started to refer to placement of an article simply by the school name, that is, by the authority of the brand.  "I'm publishing in NYU," or "I'm publishing in Florida State," is a perfectly comprehensible statement among legal scholars.

Prestige is, obviously, important in the law review world.  Being "on law review" is prestigious for students; publishing in a top 10 or top 30 or top 50 journal is prestigious for authors.   Law reviews not only lend their prestige to the authors who publish with them.  They also contribute to the brand name of their schools.  Thus, I think it's important for DePaul that the DePaul Law Review is ranked in the top 50 and for the University of Houston that the Houston Law Review is ranked in the top 50, too.  If you want a good idea of the ranking of law journals, take a look at "The Emerging Importance of Law Review Rankings for Law School Rankings" (which ranks law reviews based on recent citations to them).  I advise against spending a lot of time with bepress' list of the top 100 law journals.

So that gets me to the piece of trivia: which academic law journal (thus excluding publications like the ABA Journal and the New York Law Journal) has the highest subscriber base?  Let's make it multiple choice:

A.  Business Lawyer
B.  Harvard Law Review
C.  Journal of Legal Education
D.  Law and History Review

Answer (and an UPDATE from yesterday) below the fold

Continue reading

July 18, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)

More on Kelo Endgame

Over at CoOp, Eduardo Penalver has some interesting thoughts on the in-kind compensation used by New London to reach settlement with the last few holdout homeowners.

Ben Barros

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July 18, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)