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Saturday, July 29, 2006

Lists: of downloads and of books

It's a lovely Saturday in July, which means it's time for something a little different.  Dedicated propertyprof readers know I love lists--like rankings of law journals based on citations

As a side-note here, you may recall that I've previously expressed great skepticism of ssrn downloads as a measure of quality.  And I've commented previously about bepress' strange ranking of law journals, based on submissions through bepress (another measure based on "downloads" of a sort.)  Fellow propertyprof William S. Brewbaker suggeted earlier this week that there's an inverse relationship between downloads and quality.  I tend to agree with him.  Yet, Brian Leiter is increasing my faith in lists of ssrn downloads as a measure of quality.  And so is Theodore Seto, whose study of ssrn downloads ranks the University of Alabama graduate tax law program as number six based on ssrn downloads.

But I do like these lists of books, even if they're rather odd.  I came across this one recently that lists 250 great authors of western civilization (I can't remember which blog pointed me to it--so my apologies for not giving the customary shout-out.)  Great links to the works, as well.  And human events has another list, of the 10 most harmful books of the nineteenth and twentieth centuries.  Makes for mighty interesting thinking.

My colleague Paul Pruitt and I are working on another list: the 5000 books in the University of Alabama library that were burned in the closing days of the Civil War.  Paul's suggested a great title: "Burned Books."  Not a lot of law books in there, but I'll be posting some on our progress.

Alfred L. Brophy
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July 29, 2006 in Books | Permalink | Comments (0) | TrackBack (0)

Thursday, July 27, 2006

Kelly's Urban Communities, Eminent Domain, and the Socioeconomics of Just Compensation

I've been reading James J. Kelly's 'We Shall Not Be Moved': Urban Communities, Eminent Domain and the Socioeconomics of Just Compensation.  (Ben's post on Kelly's "Urban Communities, Eminent Domain, and Socioeconomics of Just Compensation" here.)

Here is Kelly's abstract:

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of “public use” and “just compensation” as limitations on eminent domain. In the context of urban redevelopment, the theory supports greater resident autonomy in the compulsory assembly of residential land to subsidize and induce private economic development. The article’s second part articulates two legislative reforms that protect residents from unjustified, irreparable harm without depriving urban redevelopment of eminent domain’s essential efficacy in coordinating investment.


Specifically, homeowners should not be subject to eminent domain pursuant to a redevelopment plan until the majority of them have approved the plan. To further solidify resident ownership of redevelopment, the right to continued residency in the community should be protected by amending relocation laws to guarantee an alienable entitlement to be offered replacement housing in the redeveloped district area. Together, these two legislative reforms express a more nuanced balance of property and liability rules that will facilitate a more productive interface between community residents and redevelopment officials.

So Kelly proposes two legislative solutions: first, that there be no relocation of a community of homes without consent of a majority of homeowners and second that when relocation occurs, there entire community is relocated elsewhere.  All interesting proposals and worthy of consideration.  There's a lot going on in his paper, which I highly recommend. 

I wonder if there is a possibility of a judicial recognition of the importance of staying in one's house--which might build on the understanding that homes are different.  Part of this derrives from Ben Barros' work; other parts from contract remedies: we continue to recognize a right of specific performance in sales for homes, but the right of specific performance for commerical land is breaking down.

Alfred L. Brophy
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July 27, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Ely on Kersch's Constructing Civil Liberties

Kersch_constructing_civil_liberties You may have read Vanderbilt University propertyprof James Ely's important article on Richard Epstein's influence (recommended here.)  Now Ely's review of Ken Kersch's important book, Constructing Civil LIberties: Discontinuities in the Development of American Constitutional Law, is available on the Independent Institute's website.  Everyone's talking about Kersch these days and Ely gives you a quick way of getting up to speed.  You might also be interested in Kersch's recently published edited volume, The Supreme Court and American Political Development.

Yesterday afternoon's mail also brought the good news that James Ely will receive 2006 Brigham-Kanner prize in property from William and Mary Law School at the third annual property rights conference on October 6 and 7.  The previous recipients are Richard Epstein and Frank Michaelman.  Propertyprof readers may be particularly familiar with Jim's outstanding The Guardian of Every Other Right (Oxford University Press, 2nd ed. 1998).  He is also the co-author with Jon Bruce of the popular Cases and Materials on Modern Property (West, 5ed. 2003) and Law of Easements and Licenses in Land (West).  Legal historians also know Jim as the author of, in addition to the Guardian of Every Other Right and lots of important articles, The Chief Justiceship of Melvin Fuller (South Carolina, 1995) and the co-author of the leading American Legal History: Cases and Materials (Oxford University Press, 2005) and Oxford Companion to the Supreme Court of the United States (2nd ed. 2005), among many, many other works.  He's also an all-around mensch, especially to younger scholars.

Alfred L. Brophy

July 27, 2006 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, July 26, 2006

Ohio Supreme Court Prohibits Economic Development Takings

The Ohio Supreme Court decided the Norwood case today.  I'm on the road and haven't read the full opinion yet, but Ilya Somin has a detailed post on it at the VC.

Ben Barros

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July 26, 2006 in Recent Cases, Takings | Permalink | Comments (1) | TrackBack (0)

Ranking Law Reviews Based on Citations

I love rankings of law journals based on citations.  So when I saw Paul Butler (and then Larry Solum and now Dan Solove) linking to Emory Law Library's website list of contact information of the 35 most cited law reviews, I was excited.  Emory's list is quite helpful; in fact, we need someone to compile a list of the top 50 or maybe even 75.  I certainly need to submit to more than 35 journals and I suspect most people do, too.

But what do we make of the journals on the Emory law library list?  They (like I) use John Doyle's list of citations at the Washington and Lee Library website.  It's the gold standard, in my opinion.  I've used Doyle's data for two papers on the relationship between law review citations and law school rankings.  My most recent paper looks at changes over time in the law review citations and changes in the US News rankings of those reviews' parent institutions.  The executive summary is available here.  In that paper I focus on Doyle's overall citations; but Emory uses Doyle's data to rank journals by impact (citations per article/note/comment/book review).

If Emory used overall citations rather than impact, there would be some changes.  Five reviews on Emory's list aren't in the top 35 of overall citations (actually, there are 36 schools on the Emory website because Villanova and Wisconsin are tied for 35).  Here are the five law reviews that are on the Emory list of top 35 in terms of impact but are not in the top 35 in terms of overall citations (the rank in paratheses is their rank in terms of overall citations):

Boston College Law Review (ranked 36)
Univeristy of California, Davis (ranked 40)
Villanova Law Review (ranked 47)
Wake Forest Law Review (ranked 44)
Wisconsin Law Review (ranked 38)
Washington Law Review (ranked 48)

There are also four that are in the top 35 of overall citations, but not in the top 35 in impact.  Here are the four reviews (again, rank in overall citations is in parenthses):

Fordham Law Review (tied for 9)
Cardozo Law Review (ranked 26)
Tulane Law Review (ranked 29)
University of Connecticut Law Review (ranked 33)

The Emory list is very useful.  Here's hoping they'll add some more contact information.  One final caution: remember, the ranking of law journals that bepress presents is problematic.

UPDATE:  A reader reminded me this evening that Doyle's outstanding website at W&L has a submit feature, which facilitates submission via email.  He has detailed information on how to e-submit, including email addresses.  He provides a lot of the functions of the bepress, but for free.  Doyle's awesome.

Alfred L. Brophy
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July 26, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Global Issues in Property Law

Yesterday afternoon's mail brought Global Issues in Property Law  by John Sprankling, Raymond Coletta, and M.C. Mirow (published by Thomson West).  It looks like a terrific volume, which you can assign to students as a supplement to your casebook, to give students a global perspective on property.  There's everything in here from the global agreement on the moon to human rights and property to eviction of tenants in Portugal, to squatters rights, the right to exclude, nusiance, and takings.  I'm going to spend some time with this and learn about a lot about topics on which I know less than I'd like.

I'm a fan of these kinds of texts, which are reasonably priced (less than $20) and help to round out the casebook.  I think you'll want to check it out and consider it for adoption.  Also, I know it would go well in an upper-level course on transnational perspectives on property, perhaps in conjunction with Gregory Alexander's Global Debate Over Constitutional Property.

Al Brophy

July 26, 2006 in Books | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 25, 2006

Latest on Brown University's Slavery and Justice Committee

Brown_university This fall, Brown University's steering committee on slavery and justice will release its report.  Here at propertyprof, we've been talking a lot about these issues, including the Wilmington Riot Commission's report, the controversy over renaming streets (particularly Penny Lane of Beatles' fame), the memory of the civil rights movement in McComb, Mississippi, restitution of art, and reparations more generally.  I thought you might enjoy this comprehensive article from the Brown Daily Herald. 

Here's a taste of the article, including some quotations from me:

"I think the reparations movement is going away very rapidly from individual payments," Brophy said. "It's focusing on cultural issues. How do we remember (or not remember) the connection of great institutions -- Brown, Harvard, Yale, the University of Alabama -- as well as corporations, to slavery?"

Eric Miller, assistant professor of law at Saint Louis University School of Law, said the movement for reparations represents the "quintessential American virtue of self-reliance," as Americans demand an investigation and some form of restoration.

Miller, [Brown Professor James] Campbell and Brophy all view this shift to a broader cultural outlook as a significant development in the national reparations movement.

Campbell said the committee's own approach to the issue - which has included events on the sex slave trade, South African apartheid, genocide in Darfur and the Native American experience in Southeastern New England - demonstrates this breadth of historical and cultural perspective.

"If you look at the programs that we've sponsored over the last couple years, it's pretty clear that there are lots of different ways of thinking about repair beyond simply the narrow question of monetary reparations," Campbell said.

As an in-depth inquiry into a university's history, Brown's committee has largely been hailed as a success by academics and historians. . .  .  It has reached beyond the Van Wickle Gates and engaged other communities in its research and efforts to spur dialogue.

We'll certainly be on the case, as soon as the report comes out.

By the way, I've got a lot to say on Ben's last post on how we approach distributions of property that are inequitable to start with--but it's going to take me a while to get that post up.  Of course, Johnson v. McIntosh has a lot to say on this, as does The Antelope and debate over the Fugitive Slave Act of 1850.

Endnote: The image of Brown's University Hall, which was built in part using slave labor, is courtesy of our friends at Brown.

UPDATE:  And now the New York Times digital edition has picked up Alison Nguyen's important story.

Alfred L. Brophy

July 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, July 24, 2006

Original Acquisition and Subsequent Property Rights

I've been looking for some new subjects to add to my Property Theory seminar in the fall.  One issue that I've been thinking about lately is the significance of an original acquisition or distribution of property that can be deemed illegitimate, and its impact on subsequent title.  Even the most ardent defenders of property rights tend to suggest that to be entitled to legal protection, property must have been acquired in a legitimate manner.  Defining "legitimate", of course, can be difficult, so I've been looking for some examples to use to generate discussion.  Brazil and Hawaii come to mind as examples of original distributions that were highly concentrated and therefore are controversial.  The acquisition of state assets in post-Communist Russia also raises some interesting questions.

Even if the original acquisition was improper, what then?  There is a decent argument that subsequent acquisitions through legitimate transactions should give subsequent owners good property rights, at least in some situations.  But there might be some original acquisitions that create such a moral stain that it is possible to argue that subsequent good faith purchasers don't get good title.  It occurred to me that this argument might have come up in reparations debates.  I know next to nothing about reparations (which is why I'm really looking forward to reading Al's new book when it is  out), but I'm sure Al can enlighten me about how this type of argument has played out in reparations debates.

In any event, suggestions for readings on this subject would be very welcome.

Ben Barros

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July 24, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Posner on Murphy on Douglas

Douglas_wild_bill I just read Judge Posner's review of Bruce Allen Murphy's biography of William O. Douglas.  Because legal history is my other area of work, I thought I'd post a link to it.  As Eugene Volokh (the person who pointed me to it) says, "it's certainly a fun and interesting read."  I agree with that.  But I'm not so sure I agree with the rest of Volokh's statement "my sense is that the criticisms of Douglas, from what I've heard, are indeed quite apt."  (Unless by apt he means accurate even if they present an incomplete picture.)  Much of the review (like the book) is about Douglas' personal life.  Of course, Douglas' substantial lies in his memoirs come in for particular examination (which, by the way, we've known about since at least G. Edward White's American Judicial Tradition.

What I thought about when reading the review is how much Douglas may have been creating a fictional life in his autobiography not because he deluded himself about his history, but rather because he believed in the American legend of individualism and wanted to contribute further to that legend.  Perhaps Douglas had in mind a sort of twentieth-century version of Benjamin Franklin's Autobiography.   That is, Douglas knew he was embellishing, but it may have been for a worthy purpose.  (Then again it may have been solely to satisfy his ego.) 

I'm not going to try to defend Douglas' lies or his personal life.  But I wonder how much his personal life matters to his reputation as a judge?  In working on legal history, I'm much more interested in people's ideas than their personal lives.  And to the extent I'm interested in their personal lives, it's as a way of understanding their ideas and the connection of their behavior to their ideas.  The fine work that's been done on Thomas Jefferson's personal life, like Annette Gordon Reed's, links Jefferson's ideas to his behavior.  And that's important.  I'd be interested in Douglas' extra-marital affairs if they say something about his judicial opinions.

UPDATE:  As Eugene Volokh points out, Scot Powe (a brilliant legal historian at the University of Texas, BTW) took apart many of Murphy's criticism of Douglas in an essay in Reviews in American History.  Gives new credence to the memoirs as twentieth-century version of Ben Franklin's Autobiography.

Alfred L. Brophy
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July 24, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Godsil on Race Nuisance: The Politics of Law in Jim Crow

This has been a great year for legal history in major law journals: Ken Mack's brilliant study of African American lawyers in the years leading into Brown in the Yale Law Journal and Susanna Blumenthal's study of moral philosophy and the treatment of testamentary intent in antebellum wills ("The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America") in the Harvard Law Review come immediately to mind.  And now comes news that Rachel Godsil's important paper, Race Nuisance: The Politics of Law in the Jim Crow Era, will appear in the December 2006 issue of the Michigan Law Review.  (You may already have read Godsil's important article, Viewing the Cathedral from Behind the Color Line: Property Rule, Liability Rules, and Environmental Racism, in the Emory Law Journal in 2004.)

Here is her abstract:

This article explores a line of cases in the Jim Crow era in which courts ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These “race-nuisance” cases complicate the view of most legal scholarship that state courts during this era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiance to precedent and the white plaintiffs' pursuit of racial exclusivity. Surprisingly to many, the allegiance to precedent generally prevailed. The cases confound prevailing legal theories, particularly new formalism and critical race theory's interest convergence. While superficially supportive, the article illustrates the limitations of formalism's reach by also exploring the related line of racially restrictive covenant cases. Similarly, while many of the cases appear to support white property owners' interests, this article demonstrates that the race-nuisance cases are better understood as demonstrating that white interests are multi-faceted. Interest convergence therefore may explain unexpected outcomes but is unlikely to predict such outcomes. Another line of inquiry raised by the cases is whether courts racialized nuisance doctrine by marking as nuisance conduct associated with Blacks and rewarding Blacks who adhered to white norms. The first claim is impossible to know with any certainty – and the second embraces gross oversimplifications of racial group behaviors. In sum, the article casts substantial doubt on the background assumptions about the way law worked during the Jim Crow era, and thus provides a more textured understanding of that period. However, the article also grapples with the reality that legal norms do not easily translate into social practice. 

"Race Nuisance" asks why, in the era of Jim Crow, did courts uniformly reject claims that African Americans moving into a neighborhood might constitute a nuisance.  Pretty interesting stuff here.  No one should take this as evidence--and Godsil's careful to avoid arguging this--that the courts offered anything approaching justice to African Americans.  But her paper raises important questions about how "fair" courts were.  There was a willingness--indeed, I suspect that is constitutionally mandated--to apply formal rules of equality.  A person's race can't constitute a status  that makes one unequal in formal terms.  Of course, courts frequently embraced the idea of separation in public.  But what I find interesting is that there's an early Kansas case (from the early Jim Crow period) which set the standard for rejection of race as nuisance.  So I think the early precedent was helpful.  And then by the middle of the 1910s, when the cases start coming with some frequency, the courts are demanding at least some kind of basic fairness at the formal level.  I think of Guinn v. Oklahoma, McCabe v. Atchison, Topeka Railway, and Buchanan v. Warley here.  Moreover, as Godsil points out, some of the cases though rejecting race as a category that might constitute a nuisance still find nuisance in a racialized context.  I think my favorite along those lines is an African American church in South Carolina that is enjoined on the grounds that the worshippers make too much noise.

There's much to think about here.  Of course, this reminds me of Randall Kennedy's very important essay in the 1986 Columbia Law Review on the White Court.  I hope you'll read Godsil's article.  I think you'll be hearing a lot about it in the future and I know you'll enjoy it very much.  Also, you might incorporate some of her article into your property class.  As Larry Solum says, download it while it's hot.

Alfred L. Brophy
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July 24, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Sunday, July 23, 2006

A New Way to Promote Your Law Journal

Notre_dame_law_review Haven't seen this before, but it's a great idea: the Notre Dame Law Review just emailed me the table of contents for their July 2006 issue.  (Incidentally, I realize that there are a bunch of articles in it that I need to read, including John Fee's Eminent Domain and the Sanctity of the Home; Gerard N. Magliocca's Constitutional False Positives and the Populist Moment, and Stewart E. Sterk's and Mitchell L. Engler's Property Tax Reassessment: Who Needs It?  I'd already read Lawrence A. Cunningham's The Common Law as an Iterative Process: A Preliminary Inquiry on ssrn; the other articles look great, too.)  So congratulations to the Notre Dame Law Review on a terrific issue.  Now I realize that we all need to be sending out electronic table of contents.  I think this will start a trend in law review promotion--and it probably will help Notre Dame's citation ranking, as well.  (Propertyprof readers may recall that Notre Dame Law Review is ranked 23 according to the most recent citation data.  I discuss the relationship between ranking of law reviews and ranking of law schools in this paper.)

Alfred L. Brophy
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July 23, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)