PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, August 5, 2006

Flag Display Legislation, Apartment Complexes, and Condo Associations

Locflaghouse I'm intrigued and heartened by Congress' recent legislation ensuring the right to display the American flag, even if condominum covenants or lease terms bar the display.  Nice story from my childhood hometown newspaper, The [Chester County] Daily Local News here.

The full text of H.R. 42 is available here.  Here are some key provisions:

SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES.

A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

SEC. 4. LIMITATIONS.

Nothing in this Act shall be considered to permit any display or use that is inconsistent with--

(1) any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or   (2) any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.

Locflag911project_2 More fodder for Jim Smith's excellent work on The Law of Yards, 33 Ecology Law Quarterly 203-231 (2006).  And heartening news for those of us who like to see limitations on the power of neighborhood associations.  Of course, some of this might also be handled by the Restatement (Third) of Servitudes § 3.1(2).

I wanted to have an illustration of a flag displayed at a house (hence the first illustration, from our friends at the Library of Congress).  However, I also wanted a little color on this story; hence the second illustration (also from our friends at LOC).

Dedicated propertyprof readers may recall our discussion of Marvin Gaye's rendition of the National Anthem, as well as our tribute on Flag Day.

Alfred L. Brophy
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August 5, 2006 in Land Use, Law Reform | Permalink | Comments (0) | TrackBack (0)

Nathaniel and Sophia Hawthorne: Grave Matters

Hawthornebirthplace This blog really needs a separatae archive on cemetery matters.  Seems like every time I turn on NPR or read the newspaper I see another story about the preservation of cemeteries--or something related, like moving bodies.

Anyway, heard a great story on NPR about moving the remains of Nathaniel's wife Sophie Hawthorne and their child from the U.K. to Sleepy Hollow Cemetery in Concord, Massachusetts.  (Earlier story here.)   They waited a long time to be together.

And in the spirit of my feudalism posts, let me mention one of my favorite Hawthorne short stories, My Kinsman Major Molineaux.  It's about the transition from English to local rule in the era of the American Revolution.  And as long as I'm on Hawthorne stories that I enjoy, there's the the Quaker Boy--a moving story about religious intolerance in colonial New England.  (No property there, but still a great story.)  One of these days I'm going to post a little bit about the attitudes of nineteenth century Americans towards feudalism. 

Sleepy Hollow Cemetery's worth a post at some point, too.

The picture of the house where Hawthorne was born, in Salem, Massachusetts, is courtesy of our friends at Wikipedia.

Alfred L. Brophy
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August 5, 2006 | Permalink | Comments (0) | TrackBack (0)

Friday, August 4, 2006

Weekly Top Ten

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

1. (82) Coordination, Property & Intellectual Property: An Unconventional Approach to Anticompetitive Effects & Downstream Access, F. Scott Kieff (Washington University School of Law)

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

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

4. (39) Common Law and Federalism in the Age of the Regulatory State, Alexandra B. Klass (University of Minnesota Law School)

5. (38) The Law and Expressive Meaning of Condemning the Poor After Kelo, David A. Dana (Northwestern University Law School)

6. (30) Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controversy, Nancy A. McLaughlin (University of Utah - S.J. Quinney College of Law)

7. (28) The Code Pastoral of the Islamic Republic of Mauritania Return to the Sources: Revival of Traditional Nomads' Rights to Common Property Resources, Hans-Werner Wabnitz (Independent)

8. (27) There Goes the Neighborhood? Estimates of the Impact of Crime Risk on Property Values from Megan's Laws, Leigh L. Linden and Jonah Elliott Rockoff (Columbia University - Department of Economics and Columbia Business School)

9. (27) The American Mortgage in Historical and International Context, Richard K. Green and Susan M. Wachter (George Washington University and University of Pennsylvania, Wharton)

10. (18) Habitat and Humanity: Public Lands Law in the Age of Ecology, Jamison E. Colburn (Western New England College - School of Law)

Ben Barros

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August 4, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Mann and Hawkins on Payday Lending

This one's a little off-topic, but I've been reading Ronald Mann and Jim Hawkins' latest, Just Until Payday, on how to regulate payday lending.  I'm always grateful for scholarship that addresses how to improve the legal regulatory environment in a place where poor folks are vulnerable. Here's their abstract

The growth of payday lending markets during the last 15 years, both in the United States and abroad, has been the focus of substantial regulatory attention, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have conflicting purposes - some seek to remove barriers to entry and others seek to impose limits on the business model and those who participate in it. As is often the case in banking markets, the resulting patchwork of federal and state laws poses a problem when one state is able to dictate the practices of a national industry. For most of this industry's life, just that has happened - states with the least restrictive laws effectively displaced states with more restrictive laws. Recently, however, the Office of the Comptroller of the Currency and the Federal Deposit Insurance Corporation significantly changed their policies on payday lending. Now, for the first time, States can effectively police payday lenders in their borders. Yet as we enter this new stage in which States will be able to regulate payday lending effectively, there has been little clear analysis of how they should do so. This paper responds to that opportunity by providing a detailed explanation of the business models and regulatory regimes that exist today, together with a framework of options designed to implement various perspectives regulators might adopt. We emphasize three main points. The first is the unusual nature of payday lending, with very high interest rates accruing against necessarily limited debt amounts. Unlike credit card lending, the payday loan amount does not increase over time, but the biweekly interest obligation can lead to a semi-permanent cash annuity for the lender. In our view, those features present challenging issues for regulators. Second, we underscore the limitations of existing legal regimes, which often leave loopholes that permit lenders to avoid the statutory framework; this is a particularly serious problem for the majority of States that have tried to limit rollover lending. Third, addressing the majority of jurisdictions that have not banned the product, we advocate a reversal of the current hostility to market activity by large institutions. If the market is to exist, we believe it is better for it to be populated by highly visible national providers than by smaller fly-by-night providers.

Legal historians will also need to read Jim Hawkins' important Free Expression's Pivotal Function in the Early Labor Movement.  I've been meaning to blog a little bit about it.  Hawkins keys into the recent debate over popular constitutionalism and how constitutional ideas spring from the minds of workers, rather than legal elites.  Great stuff; reminds me of Emerson's statement in his American Scholar Address that

Life is our dictionary. Years are well spent in country labors; in town,--in the insight into trades and manufactures; in frank intercourse with many men and women; in science; in art; to the one end of mastering in all their facts a language by which to illustrate and embody our perceptions. I learn immediately from any speaker how much he has already lived, through the poverty or the splendor of his speech. Life lies behind us as the quarry from whence we get tiles and copestones for the masonry of to-day. This is the way to learn grammar. Colleges and books only copy the language which the field and the work-yard made.

One reading Hawkins' important essay on the antebellum origins of free speech theory from labor organizing might be led to paraphrase Emerson, that life is the dictionary of constitutional law. Years are well spent in country labors; in town,--in the insight into trades and manufactures; in frank intercourse with many men and women; in science; in art; to the one end of mastering in all their facts a Constitution by which to illustrate and embody our perceptions. . . . Life lies behind us as the quarry from whence we get tiles and copestones for the masonry of to-day. This is the way to learn grammar. Courts and judges only copy the language which the field and the work-yard made.

As Larry Solum says, download them both while they're hot.
Alfred L. Brophy

August 4, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Gregory Alexander's Global Debate Over Constitutional Property

Alexander_global_debate_constitutional_p So what has to my wondering eyes appear in my mail box?  Gregory Alexander's Global Debate Over Constitutional Property: Lessons for American Takings Jurisprudence, which has just been published by the University of Chicago Press.  As soon as I saw it, I knew it was going to be a late night.  (As dedicated propertyprof readers know, I'm a huge fan of Commodity and Propriety, so I've been eagerly awaiting Global Debate.  Ben Barros announced it here.)

Alexander looks at constitutional respect for property in three countries: the US, Germany, and South Africa.  He's aiming at some huge issues: does constitutional protection for private property facilitate democracy or hinder it.  That's about the meta-most of meta issues for property.  Alexander's cautious about whether making property special--I think he calls this view "uber property"--and thus removing it from the normal political process is a good idea.  The comparative project is particularly important in an area like property, because it gives us a sense of the boundaries of the field.

Alexander contextualizes the respect of cultures for private property and emphasizes the importance of contextualizing:

Constitution makers need to understand that property clauses do not all have the same valence.  Any analysis of the effects of such clauses must pay close attention to exogenous local factors, what I have called background traditions and cultures.  Any analysis that neglects these factors is the sheerest form of empty formalism. (62)

We're going to be returning to this book for insights for a long time.

Alfred L. Brophy
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August 4, 2006 in Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, August 3, 2006

The Sullivan Scale: Ranking Law Journals Based on Submissions

This is great!  I love studies that rank law reviews and law schools.  Earlier this year we had the roll out of the Hylton Rankings (and here).  Now our friends at co-op have rolled out another one: the Sullivan Scale, named after Charles Sullivan.  It looks at journals based on their self-reporting about number of submissions.  I think this is an important measure of how the market perceives journal quality.  Much like the US News measure of rejection rate of applicants, the Sullivan scale relies on how many people are trying to get a piece of the very limited turf.  Some of those figures are sobering: Stanford gets 3000 submissions, for, what, 16 slots or thereabouts, I guess.

It would be quite useful to have accurate data on this.  Expresso ranks journals based on the number of submissions made through expresso.  They call it the 100 most popular general student law reviews.  But as I've commented recently, their list is more than problematic.  To look at expresso's numbers, the Wisconsin Law Review is ranked number one.  Wisconsin's a good journal, no doubt.  But based John Doyle's outstanding website, Wisconsin's ranked 38 in citations in recent years among general interest, student-edited law journals.  (And to take some other examples, the Harvard Law Review is ranked 57.)  Just to do some comparison with the Sullivan rankings, bepress, and Doyle's Citation Ranks (and I'm only ranking the 10 journals that Sullivan ranks), here's a table that compares them--and I've added a final column that lists citation rank among all general interest, student-edited reviews:

Law Review Sullivan bepress Citations Citation Rank
Among All
Reviews
Stanford 1 6 1 4
Ohio State 2 5 6 25
Iowa 2 4 9 34
Virginia 2 1 2 9.5
Cornell 2 9 4 12
Texas 6 3 5 14
California 7 2 3 11
Tulane 8 10 8 29
Rutgers Camden 8 7 10 80
U.C. Davis 10 6 7 27

It's hard to make comparisons between a lot of these journals, because so many of them are so, so terrific.  But a couple of things appear here, prime among them: the bepress ranking yeilds some strange results.

As Charles Sullivan noted a few days ago, a lot of people use US News as the general metric for law review, as well as law school quality.  Though I think citations to a school's law review may tell us something about the law review's quality, as well as about the quality of the law school that publisheds the review.  I discuss that some in this paper.

All this talk of bepress reminds me of a question that's been thrown around a lot in Tuscaloosa these days: should we use expresso for the fall submissions or not?  The editors of the Alabama Law Review seem to like expresso submissions; they're easy to track and seem to be of high quality.  So there may be the halo effect going on here.  Anyone else have similar, favorable reports from the front lines?

Alfred L. Brophy

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August 3, 2006 in Law Schools | Permalink | Comments (3) | TrackBack (0)

Wednesday, August 2, 2006

Joe Walsh on Being a Law Professor

"I can't complain but sometimes I still do."  'Course, he was talking about being a rock star, but it certainly captures being a law professor.  This is easily one of the best jobs on the planet, but it is still easy to gripe about having to update the page numbers in your syllabus because the casebook has a new edition.

Ben Barros

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August 2, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Colburn on Localism's Ecology

Jamieson E. Colburn (Western New England College - School of Law) has posted Localism's Ecology: Protecting and Restoring Habitat in the Suburban Nation on SSRN.  Here's the abstract:

There is wide agreement among conservation activists and scientists alike that loss and alteration of habitat are the leading threats to biodiversity in America. Suburbs and exurbs, though, are only beginning to acknowledge that they are the problem in the struggle to stem the tide of sprawl and other economic processes producing ecosystem-wide habitat degradation today. A recent resurgence in academic and activist attention to local governments in America is reconsidering them as viable solutions to this problem. But most of this dialogue is being based upon a mistaken conception of local governance. Much of the legal scholarship on local environmentalism has ignored the reality of our localism and its role in the creation of the ever-expanding built landscape in America. This paper argues that this lack of realism in the current debate about local environmental law renders it blind to the vices of local governments and some of their sham conservation measures, but also to their counterintuitive virtues and possibilities for real conservation progress. Local government's deep connection to private property entrepreneurialism is what has made it so practically powerful in resisting so many state and federal environmental initiatives. But it may well be this dimension of our localism that renders it uniquely fit to the tasks of real habitat protection and restoration in the twenty-first century.

Ben Barros

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August 2, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Yet More Cemeteries

Thanks to Carl Christensen for pointing out this article about the excavation of a two hundred year old grave site of a man who had been a slave.  Venture Smith, referred to as "the black Paul Bunyan"

is depicted in tales as a 6-foot-1 lumberjack slave whose fabulous feats of strength helped win his freedom. [Scientists] had hoped to find DNA that would trace Smith's life back to Africa, filling in the gaps of one of the earliest and most important slave biographies.

Unfortunately, all genetic material for Mr. Smith had decomposed.

The article continues:

But teams found several items from the nearby graves of Smith's family that should help answer many questions, said Chandler Saint, president of the Beecher House Center for the Study of Equal Rights in Torrington, who is managing the excavation.

Remains were found in the other graves, though three to six months of testing will he needed to determine whether any DNA has been recovered, Saint said. Many artifacts were also found, he said.

August 2, 2006 | Permalink | Comments (0) | TrackBack (0)

Linden and Rockoff on Impact of Megan's Laws on Property Values

Leigh L. Linden (Columbia University - Department of Economics) and Jonah Elliott Rockoff (Columbia Business School and National Bureau of Economic Research) have posted There Goes the Neighborhood? Estimates of the Impact of Crime Risk on Property Values from Megan's Laws on SSRN.  Here's the abstract:

We combine data from the housing market with data from the North Carolina Sex Offender Registry to estimate how individuals value living in close proximity to a convicted criminal. We use the exact location of these offenders to exploit variation in the threat of crime within small homogenous groupings of homes, and we use the timing of sex offenders' arrivals to control for baseline property values in the area. We find statistically and economically significant negative effects of sex offenders' locations that are extremely localized. Houses within a one-tenth mile area around the home of a sex offender fall by four percent on average (about $5,500) while those further away show no decline. These results suggest that individuals have a significant distaste for living in close proximity to a known sex offender. Using data on crimes committed by sexual offenders against neighbors, we estimate costs to victims of sexual offenses under the assumptions that all of the decline in property value is due to increased crime risk and that neighbors' perceptions of risk are in line with objective data. We estimate victimization costs of over $1 million - far in excess of estimates taken from the criminal justice literature. However, we cannot reject the alternative hypotheses that individuals overestimate the risk posed by offenders or view living near an offender as having costs exclusive of crime risk.

Ben Barros

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August 2, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 1, 2006

Shopping a Manuscript to a Book Publisher and Textbook Pricing: An Important Relationship

Horwitztransformation Some weeks ago I put together the reading assignments for my property history seminar for the fall.  I take a lot of factors into consideration in selecting texts: what books will teach well is of primary importance; of course I'm also interested in what's new.  I also look for classic literature, which my students need to read.  And I always take my students' pocketbook into consideration in picking books.  I know on the University of Alabama campus, the faculty and administration (as well as the students) are making a push to make sure that we consider the cost of textbooks for our students.  It's the same at many--probably most--other schools.  Faculty and administration are frightened by about rising costs, just as students are.

The prices of the books I usually use have gone up.  (I haven't taught this particular course in a while.)  One of my favorite books of all time--Morton J. Horwitz' Transformation of American Law, 1780-1860--is now $30 new.  Back in the fall of 1988 when I bought it for Eben Moglen's legal history class I paid $10.95.  (This I know because I just checked the copy on my self and it has a sticker for $10.95.)  That's do-able, but remember this is a seminar and I'd like to assign a half-dozen books. I'll still use Horwitz, of course--it's a great, great book.  How could you teach legal history with out?  Impossible, IMHO.  Thankfully, there are tons of used copies available on the internet, cheap.  So I sent an email to all my students telling them to check out their favorite internet used book dealer--half.com or amazon or whatever--and get Horwitz now, so that they'll have it in time for the fall.  And, btw, if you're a propertyprof and haven't read Horwitz' Transformation, I recommend it--particularly the chapter on property law.

Commoditypropriety_1 I also assigned Gregory Alexander's Propriety and Commodity, another brilliant book.  Dedicated propertyprof readers will recall my recent praise for Propriety and Commodity, along with Daniel Hamilton's forthcoming book on the Civil War Confiscation debates.  I sure do love University of Chicago Press books.  Alexader is also $30, but there is no substitute.  Unfortunately, there don't seem to be a lot of used copies floating around, either.  That suggests that Alexander hasn't gotten loads of adoptions, which is unfortunate.  It's a very, very important book and I'd encourage you to think about assigning it as additional reading to the first years.  I think law students could use practice reading texts other than cases and the occasional short statute (though they certainly need practice on those as well.)

Grossdoublecharacter Quite frankly, however, the economics of this caused me to re-think a couple of other assignments.  I looked around for some books that are priced for adoption.  This year, I'm branching out to the University of Georgia Press (for Ariela Gross' stunning Double Character, which was expensive when it came out in hardback from Princeton but is now priced at about $20) and the University of Kansas Press (for Forrest McDonald's Novus Ordo Seclorum, which is thankfully priced at $14.95 new, but with used copies less than $5).  Both the University of Georgia and University of Kansas price books for adoption.  That's very important and I think will become more so, as universities feel pressure to save money everywhere.

As soon as Lindsay Robertson's important book on Johnson v. McIntosh, Conquest by Law, comes out in paper (which will happen this November), I'll put it in the rotation.  I highly recommend it as a companion for the first year property class; it gives students a context for understanding that foundational property case.  I've also used in the past James Ely's terrific The Guardian of Every Other Right, which works well as a companion to the first year property class.  It, too, is priced for adoption.  As an aside, I've been enormously pleased with Oxford University Press' pricing policy.  One of the reasons that Reconstructing the Dreamland's done well in adoptions is that it's affordable--you can get paperback copies for under $5.  Plus, I think it's teachable--lots of themes in there about law, violence, and reparations that resonate with students.  It's also a short book, which is critical in getting adotions these days, as well.  Now there is Reparations Pro and Con for (just barely) under $30, as well.  (OK--product placements are over.)

All of this caused me to think about advice that I commonly give regarding shopping a manuscript to book publishers.  There are a lot of things to think about as a book author.  Of course, prestige of the press is a critical one.  Brian Leiter puts six presses in the elite group for law monographs (in alphabetical order): Cambridge, Chicago, Harvard, Oxford, Princeton, and Yale (with honorable mention to California).  I don't see the hierarchy exactly the same way as Leiter, but his advice on rankings is always very, very sound.  There are a lot of other things to think about, like how committed is the press to the book?  Will they get it out fast, or will it be in development for years?

And don't underestimate this: when we you're shopping a manuscript, if you're interested in getting adoptions, it's important to be sensitive to what presses typically charge for books. I certainly understand that some books are not written for a student audience.  For those, the pricing policy does not matter much, I suppose.  But if the price is right, I think there are a lot of even pretty sophisticated books that will reach a student audience.  I almost always assign a monograph to my property students and often assign one to my wills and estates and my remedies classes.  They're capable of handling pretty sophisticated works.  And one of the things we want to do is push them, too, to be better readers.

Another factor besides price that is critical in adoptions is: how long a press keeps its work in print.  I wanted to assign Don Fehrenbacher's Constitutions and Constitutionalism in the Slaveholding South, which was put out in a nice and very affordable paperback edition some years ago by LSU (along with some of Fehrenbacher's other work).  Alas, it's out of print.

Maybe later this summer or early fall I'll post a little bit on what I've learned about book publishing from serving as books reviews editor at Law and History Review.

You might also enjoy Ethan Lieb's post on cover art over at prawfs.  I hadn't thought at all about a cover as part of the negotiation process, nor as a factor in selecting a press.  (Though I know that some people are drawn to Knopf because they produced truly beautiful books.)

Alfred L. Brophy
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August 1, 2006 in Books | Permalink | Comments (1) | TrackBack (2)

Monday, July 31, 2006

Images of Property in Faulkner's The Bear

Al's discussion of Images of Property in American and Hawaiian Landscape Art a while back reminded me of one of my favorite images of property in American literature, the conversation between Ike and McCaslin that begins Chapter IV of William Faulkner's The Bear.  The entire novella is full of property images and issues, but in this passage the characters are discussing the legitimacy of their family's ownership of its land and the legitimacy of the concept of ownership itself:

He [Ike] could say it, himself and his cousin [McCaslin] juxtaposed not against the wilderness but against the tamed land which was to have been his heritage, the land which old Carothers McCaslin, his grandfather, had bought with white man's money from the wild men whose grandfathers without guns hunted it, and tamed and ordered, or believed he had tamed and ordered it, for the reason that the human beings he held in bondage and in the power of life and death had removed the forest from it and in their sweat scratched the surface of it to a depth of perhaps fourteen inches in order to grow something out of it which had not been there before, and which could be translated back into the money he who believed he had bought it had had to pay to get it and hold it, and a reasonable profit too: and for which reason old Carothers McCaslin, knowing better, could raise his children, his descendants and heirs, to believe the land was his to hold and bequeath, since the strong ruthless man has a foreknowledge of his own vanity and pride and strength and contempt for all his get:  just as, knowing better, Major de Spain had his fragment of that wilderness which was bigger and older than any recorded deed:  just as, knowing better, old Thomas Sutpen, from whom Major de Spain had had his fragment of money:  just as Ikkemotubbe, the Chickasaw chief, from whom Thomas Sutpen had had the fragment for money or rum or whatever it was, knew in his turn that not even a fragment of it had been his to relinquish or sell . . .

"Relinquish," McCaslin said.  "Relinquish.  You, the direct male descendant of him who saw the opportunity and took it, bought the land, took the land, got the land no matter how, held it to bequeath, no matter how, out of the old grant, the first patent, when it was a wilderness of wild beasts and wilder men, and cleared it, translated it into something to bequeath to his children, worthy of bequeathment for his descendants' ease and security and pride, and to perpetuate his name and accomplishments. . . ."

"I can't repudiate it.  It was never mine to repudiate.  It was never Father's and Uncle Buddy's to bequeath me to repudiate, because it was never Grandfather's to bequeath them to bequeath me to repudiate, because it was never old Ikkemotubbe's to sell to Grandfather for bequeathment and repudiation.  Because it was never Ikkemotubbe's fathers' fathers' to bequeath Ikkemotubbe to sell to Grandfather or any man because the instant when Ikkemotubbe discovered, realized, that he could sell it for money, on that instant it ceased ever to have been his forever, father to father to father, and the man who bought it bought nothing."

"Bought nothing?" . . .

"Bought nothing.  Because He told in the Book how he created the earth, made it and looked at it and said it was all right, and then He made man.  He made the earth first and peopled it with dumb creatures, and then He created man to be His overseer on the earth and to hold suzerainty over the earth and the animals on it in His name, not to hold for himself and his descendants inviolable title forever, generation after generation, to the oblongs and squares of the earth, but to hold the earth mutual and intact in the communal anonymity of brotherhood, and all the fee He asked was pity and humility and sufferance and endurance and the sweat of his face for bread."

There's a tremendous amount of property theory in just this short passage.  The first few lines remind me of, among other things, the issues raised by Johnson v. M'Intosh.  The expression of utter contempt for the Lockean view that labor, particularly the labor of slaves, could establish title to land by "scratch[ing] the surface of it to a depth of perhaps fourteen inches" is very powerful.  The rest of the passage questions the very idea of title and of the ability of someone with questionable title to pass ownership to another person.

I've been looking around for an analysis of the property issues in Faulkner's work but haven't found anything.  Perhaps it would be a good note topic for a student with a literary bent.

If you have favorite images of property in literature or art, please leave a comment.

Ben Barros

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July 31, 2006 in Property Theory | Permalink | Comments (1) | TrackBack (0)

Please suggest a note topic

Alabama_law_review Ah, it's that time of the year again: law reviews are beginning to hand out invitations to incoming second years.  Congratulations to you all.  Law review's a great honor and a great learning experience.  Students benefit from the experience of performing close reads on the articles they're cite-checking and editing; they can learn a lot from the writing experience as well, including working closely with faculty members on their notes.

How do I know that law reviews are handing out offers?  I'm beginning to get questions from students asking for helping in selecting a note topic.  (This time it's from my students at the University of Hawaii.)  And so it begins again.  Lo' those many years ago Eben Moglen suggested a topic to me, on federalism in the Taney Court.  I am eternally grateful to him.  And over the years I've suggested a bunch of topics to students.  Some of the better ones in recent years include 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; Elizabeth Bates on statutes of limitations for reclamation of artwork produced by slaves; Chris Williams on an empirical study of smart growth; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law.

The key to a good student note topic is: that it's do-able over the course of the second year.  What's that mean?  First, it's a topic that hasn't yet been over-written.  That means stay away from takings (exception to follow).  Some years ago one of my favorite students of all time asked me about writing on takings.  And I said, well, spend the weekend looking at what's been done and reading (the then most recent case), Palazzolo and if you can find something new to say, let me know.  So the next week she said, "seems like everything has been taken.  [pause]  I guess that was your point."

Second, find something that's at least a little interesting.  You're going to be living with it for a while.  Third, find something that's narrow enough that you can read everything on the topic and come to a reasonable conclusion in the time you have available.  Fourth, find a topic on which you can say something about the law (this usually means finding a place where law is in flux).  It's not a great idea to rehash the arguments against a particular Supreme Court decision.  That's been argued and answered, even if you don't like the result.  (This advice applies to faculty, as well.)  The Columbia Law Review used to have a rule: you can't criticize the Supreme Court in your note.  Good advice for second year law students, I think.  Not that the Supreme Court has always done everything right; it's just that it's good to stay away from a topic on which you know going in you can't have much effect.

That means that narrow doctrinal topics are really good; brief empirical pieces, are also very good.  And I think historical pieces are ideal, because there is so much that's left to be said about legal history. Talk to people at work; often times, the best note ideas come from practicing attorneys who see issues as they're just beginning to make their way through litigation.

Here are a few things that are on my mind this summer, which might be good student note topics.  Just remember, you got these ideas from Brophy.  I want credit for this stuff; at least thank me in a footnote. First--and breaking the rule against takings: there are a couple of places in takings where we student work could help us.  What procedures have state courts developed to protect against abuses of public use.  Some years ago Thomas Merrill published an important study in the Cornell Law Review on this.  I think there's a lot to do with this at the state level.

Second, amidst all this talk about how regulatory takings hurt little people, I think there's been little empirical work on who benefits from the expanded takings jurisprudence.  I had a student write a very good paper that studied takings claims in the Fourth Circuit.  She found that virtually everyone who successfully sued was a developer.  (No surprise here, but I think there's some good work to be done on this topic--looking at reported cases and also studying the process before it reaches the courts.  Though the later is much harder.)

Third, we could use some recent empirical work on how the restatement (third) of servitudes has been interpreted by state courts.  How's the progress on replacing touch and concern with a more general "reasonableness" inquiry going?

Fourth, doctrinal notes are very helpful and are actually cited.  What are the areas of property doctrine that could use updating?  I think there's some good work to be done on recent cases on damages for breach of land sale contracts (and specific performance).  But there are plenty of places where we could use some more work, especially in property and equity (like agreed boundaries and easements by estoppel).

Fifth, I think we need to know more about the process by which southern courts pursued the process of integration--libraries and swimming pools are both great subjects for study.  And they're self-limiting: you can collect all the cases in which libraries or pools were integrated quickly.  Then it's a process of figuring out what they meant.

Sixth, property and equity is a topic of growing importance.  For instance, are we seeing state courts beginning to limit constructive trusts?  Are courts changing their attitudes towards injunctions for violations of servitudes?  Are courts invoking property rules or liability rules with more frequency?  Are they changing their frequency for invoking either?

Seventh, you might take advantage of the miracle of full-text searching on lexis and westlaw and study how various phrases have been used.  When do courts criticize something as feudal, for instance.  Or you might take a page from Randall Kennedy's book on the n-word and make a comprehensive study of how courts have reacted to the n-word.

Eight, if you're thinking about case notes, I recommend a serious look at Jones v. Flowers.  There's some great work to be done on comparing the rhetoric of Jones and KeloI have some comments on that here.

And now this good news, that Eugene Volokh and the UCLA law library have opened a website, lawtopic.com, which is a clearinghouse for law review topics.  That's a great contribution to the community; I appreciate their generosity.

[Update:  More thoughts on this subject are here.]

Another Update:  Here is a link to Stanford Law Review's memo on note topics.  I thought you might find it of some interest.  And here is a link to University of California, Hastings Professor Roger C. Park's lengthy list of note topics.

Alfred L. Brophy
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July 31, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Sunday, July 30, 2006

Somin on Godsil

Ilya Somin has a post up at the VC on Rachel Godsil's recent article Race Nuisance: The Politics of Law in the Jim Crow Era.  Al discussed this article last week.

Ben Barros

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July 30, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Loshin on Sign and Billboard Regulation

Jacob Loshin (Yale Law School) has posted Property in the Horizon: The Theory and Practice of Sign and Billboard Regulation on SSRN.  Here's the abstract:

This article is the first piece of legal scholarship to address the land use issues associated with signs and billboards in a comprehensive and systematic manner. Although other scholars have addressed signs as a category of First Amendment law, the land use side of the sign issue has been neglected. Signs are a pervasive form of land use, and they pose distinctive practical and theoretical problems for land use law and policy. Yet, the land use literature has rarely treated signs as such. This article seeks to fill the void. The article has three principal aims. First, it provides a comprehensive history of sign and billboard disputes, using one city’s century-long experience as a case study. The article relies on original research from primary sources to explain how and why patterns of sign land use and sign regulation have evolved over time. It pays special attention to the economics of signs and the public choice aspects of sign regulation. Secondly, the article uses lessons gleaned from this history to construct a framework for thinking about sign regulation. It examines how signs relate to concerns about nuisance, aesthetics, information, and expression. It also corrects certain conceptual mistakes made by judges and policymakers. Finally, the article evaluates the regulatory tools available for controlling sign land use. It critiques some common approaches to regulating signs, and it argues that sign regulation should embrace alternative regulatory tools, such as nuisance law and taxation, which have so far been underutilized and underappreciated.

Ben Barros

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July 30, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten

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

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

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

3. (76) Coordination, Property & Intellectual Property: An Unconventional Approach to Anticompetitive Effects & Downstream Access, F. Scott Kieff (Washington University School of Law)

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

5. (47) 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)

6. (34) Common Law and Federalism in the Age of the Regulatory State, Alexandra B. Klass (University of Minnesota Law School)

7. (30) Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controversy, Nancy A. McLaughlin (University of Utah - S.J. Quinney College of Law)

8. (28) The Code Pastoral of the Islamic Republic of Mauritania Return to the Sources: Revival of Traditional Nomads' Rights to Common Property Resources, Hans-Werner Wabnitz (Independent)

9. (27) 'We Shall Not Be Moved': Urban Communities, Eminent Domain and the Socioeconomics of Just Compensation, James J. Kelly (University of Baltimore - School of Law)

10. (26) Property in the Horizon: The Theory and Practice of Sign and Billboard Regulation, Jacob Loshin (Yale Law School)

Ben Barros

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July 30, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Property Pictures: Beaches and No Trespassing Signs

Breakers_palm_beach_no_trespassing_sign Here at propertyprof we talk about all sorts of things, including pictures of landscape art in the nineteenth century.  At other times we talk about community rights in property--like the right to access a cemetery on private property or the right to cross property to get to a beach.  But, as you all know, the right of exclusion is substantially broader than the right to access.
Breakers_palm_beach_private
In that spirit, I thought I'd post a couple of photographs I took at the SEALS conference.  One is of a no trespassing sign at the Breakers Hotel (aptly named because it breaks your budget); the other is essentially the same: a notice that the Breakers' beach is private.  I've added them to my growing collection of interesting no trespassing signs.  And it's probably time for a bleg here--if you have a photograph of a no trespassing sign that you like, please send it along.  I'll share it with everyone.

So next time you teach Matthews v. Bay Head or, if you're teaching something even more innovative, like Public Access to Shoreline Hawaii (PASH), how about showing a couple of pictures of private beaches.

Alfred L. Brophy
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July 30, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)