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Editor: Stephen Clowney
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Saturday, August 19, 2006

Weekly Top Ten

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

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

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

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

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

5. (36) Property and Custom: Allocating Space in Public Places, Gregory M. Duhl (University of Tulsa - College of Law)

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

7. (31) 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. (26) Bankruptcy Reform and Homeownership Risk, Melissa B. Jacoby (UNC Chapel Hill - School of Law)

9. (19) A Spatial-Econometric Analysis of Attraction and Repulsion of Private Conservation by Public, Amy W. Ando, H. J. Albers and Xiaoxuan Chen (University of Illinois at Urbana-Champaign, Oregon State University, and University of Illinois Urbana-Champaign)

10. (19) Patterns of Multi-Agent Land Conservation: Crowding In/Out, Agglomeration, and Policy, H. J. Albers, Amy W. Ando and Michael B. Batz (Oregon State University, University of Illinois at Urbana-Champaign, and Resources for the Future)

Ben Barros

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August 19, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 18, 2006

Mossoff on Patents as Constitutional Property

Adam Mossoff (Michigan State University College of Law) has posted Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause on SSRN.  Here's the abstract:

Conventional wisdom maintains that early courts never secured patents as constitutional private property under the Takings Clause. In examining long-forgotten judicial opinions and legislative records, this Essay reveals that this is a profoundly mistaken historical claim. Nineteenth-century courts, securing to inventors the fruits of their labors, enthusiastically applied the Takings Clause to patents. It is striking that this historical development in both constitutional law and patent law has become obscured to modern courts and scholars. This Essay thus concludes with a possible answer to this conundrum, drawing upon the intellectual history of property theory. Ultimately, the eclipse of the nineteenth-century patent takings jurisprudence may be an unintended consequence of the legal realists' radical transformation of property theory at the turn of the last century.

This intellectual history is important because it exposes the pervasive misunderstanding of the history concerning two significant constitutional provisions - the Takings Clause and the Copyright and Patent Clause. Courts and scholars can no longer rely on the conventional wisdom to conclude that patents are not protected under the Takings Clause, or that this issue is novel and uncertain. Doctrinally, this Essay also uncovers a venerable jurisprudence grappling with constitutional limits on the government pirating patented inventions, which is settled law that courts would use in regulatory takings analyses today. As patented drugs and other inventions are increasingly the subject of regulations, this Essay establishes that the constitutional and policy issues inherent in these governmental actions are not new. Courts have long embraced patents as constitutional private property.

Mossoff's essay adds important new (or, more accurately, old) ideas to the current debate over the taking of patents.  The issue can be conceptually difficult because patents are created by federal statute, so it can be argued that because the government creates patents it can infringe or destroy them without incurring takings liability.  Mossoff discusses a number of earlier cases that held that patents were constitutional property, but that have been absent from the discussion in recent scholarship and cases on this issue.  A very interesting paper.

Ben Barros

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August 18, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Federal Condemnation of San Diego's Cross: Public Use?

President Bush has signed HR5683 into law, which provides that the federal government will seize San Diego's Mt Soledad Veterans' Memorial and pay just compensation for the property.  The Memorial, originally owned and created by the city of San Diego, is controversial because it features a large Latin cross.  Courts have concluded that the Memorial violates the religious establishment provisions of the California Constitution.  By taking the property through eminent domain it is surely the intention of the drafters to transform the establishment issue into a federal constitutional question.  No doubt the proponents think that they will fare better under the 1st Amendment than under California's Constitution.  Now, here's the property angle:  Is this taking for a public use?  True, Midkiff said that public use is satisfied whenever the taking is "rationally related to a conceivable public purpose," and Kelo qualified that conclusion somewhat with respect to takings for purely economic development purposes.  In HR5683, Congress states the purpose of the condemnation is to continue the practice of honoring World War II and Korean War dead by exhibition of this cross, together with unspecified secular symbols.  Here are my preliminary thoughts: 

1) If the cross violates the federal establishment clause the taking ought not be regarded as a public use.  Of course, the Court might simply decide that the Memorial violates the establishment clause and ignore the latent public use issue, but it could kill two birds with a single stone by reasoning that the taking violates public use by reason of its being a forbidden religious establishment.  True, this course of action violates various Ashwander v. TVA principles, but those principles are frequently honored in the breach.

2) Even if the cross is not a forbidden religious establishment should we accept Congress's declaration of purpose at face value?  Surely the purpose behind this legislation is to pre-empt California's Constitution and to confer a litigation advantage to the defenders of the Memorial.  Is that a public use?  This question becomes more difficult when you recall that in O'Brien, the draft-card burning case from the Vietnam era, the Court said it would not strike down legislation otherwise valid on the basis of a illegitimate purpose.

Comments welcomed.

Calvin Massey

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August 18, 2006 in Takings | Permalink | Comments (2) | TrackBack (0)

Reparations Pro and Con at "On With Wilmer"

Wilmerleon This Saturday, August 19, I'll be on Wilmer Leon's talk show "On With Leon," on xm satellite radio (channel 169) from 2-3 EST, talking about Reparations Pro and Con.  I'm looking forward to the discussion.  One of Dr. Leon's hallmarks is reasoned discussion.  I remember a rich discussion with him about the Tulsa riot of 1921.

I expect we'll talk about all sorts of things, like: why reparations is emerging as an issue for discussion now; what the case looks like, as well as the problems with the case; and where the movement's going.  In particular I'll be talking some about the issues of monument law and cemetery access, which I think are two places where property doctrine has something to contribute.

If you have access to xm satellite radio, I hope you'll tune in at 2pm EST on Saturday.  And when the book actually hits the store shelves (or at least the amazon.com warehouse) I'll be posting a little bit more about it.  I expect reparations will be a topic much in the news in the next few months, especially after Brown University's Steering Committee on Slavery and Justice releases its much-anticipated report.

Alfred L. Brophy

August 18, 2006 in Books, Recent Scholarship | Permalink | TrackBack (0)

Thursday, August 17, 2006

Paradoxes of Pierson v. Post

Were I beginning Property next week (sigh -- Seton Hall has adopted a Spring-semester Property schedule), my most interesting new challenge would be incorporating the new literature on our favorite fox case.  Two articles have already been highlighted in previous posts on PropertyProf:  Bethany Berger, It's Not About the Fox:  The  Untold History of Pierson v. Post, Duke L.J. (forthcoming 2006) and my colleague Andrea McDowell's paper, Legal Fictions in Pierson v. Post, 105 Mich. L.J. (forthcoming 2006).  A third fascinating take on the case is Angela Fernandez, James Kent and Pedagogical Theory of Pierson v. Post:  It's Really Not About a Fox.  Only Angela's abstract is currently on SSRN -- and in my view, her abstract only hints at the dramatic revelations contained in her paper.

Each article alone adds a great deal to our understanding of  Pierson, but taken together, these articles should dramatically change how we teach the case.  I urge all of you to read the articles in full, but I will also give a short version of how the articles will change my approach in the classroom.

I have historically approached Pierson as a quaint way of continuing with the first in time concept already introduced in Johnson v.  M'Intosh and then discussing forms of legal reasoning.  The facts seem amusingly straightforward (as Dukeminier & Krier et al's teaching manual tells us) and the majority and dissenting opinions use dramatically different forms of legal reasoning almost to the point of caricature.  But I -- and I think most of us -- didn't have a clue that the majority and dissent were using exaggerated styles on purpose.  I always wondered why the parties spent so much on a case about a fox, but as footnote 8 in D & K alludes, I assumed that the fathers of Pierson and Post  had some sort of personal quarrel.

With the advent of attention from three scholars, many of my questions have been answered and many more questions raised.  I will now explain to students (via Bethany's paper) that the facts of Pierson might not be as straightforward as they seem -- rather than a dispute between a sportsman and a hunter, the case may be based upon an underlying dispute between two competing communities over rights in land.  Bethany contends that at the heart of Pierson is whether descendants of the town's original settlers held special legal rights in the undivided land where the fox was caught or whether the town residents as a whole had shared rights in the land. 

I will also explain that the dissent's claim that promoting fox hunting would have the societally useful effect of promoting the destruction of noxious beasts is in fact wrong.  Andrea's paper shows that fox hunting as Livingston describes it (accompanied by imperial hounds) is not only a wildly inefficient way to kill foxes (who needs lots of elegant folks on horseback and imperial hounds to kill a little fox?), but also that fox hunters actually bred or kept foxes alive in order to provide prey for the social event that is a fox hunt.  Andrea goes on to note that Livingston's pompous tone suggests that he likely was aware of the silliness of his argument.  The irony of course is that we have all taken him so seriously. 

Finally, I would alert the students to the argument that Justice Livingston's tone may well have been a response to the inflated, highly academic style of the majority.  Indeed, Angela explains that rather than providing a typical example of formalist decision making from the early 19th century, the Pierson majority was an exercise in judicial technique inspired by Justice Kent, who used the case as a teaching vehicle for his junior colleagues and the lawyers who litigated the case.  While at first blush, the idea of a senior justice engaging in pedagogy seems innocuous, in fact, Angela argues, Justice Kent was a dominating presence on the court who used his erudition to bully his colleagues and to imprint his own view onto a new American common law.  (I thank Andrea McDowell for alerting me to Angela's paper -- and its significance)      

I am thrilled that these three scholars have breathed even more life into an already canonical case.  Have fun!

Rachel Godsil

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August 17, 2006 in Recent Scholarship, Teaching | Permalink | Comments (1) | TrackBack (1)

Calvin Massey Blogging

I'm delighted to report that Calvin Massey of the University of California, Hastings Law School is going to be blogging with us for a while.  Calvin's the author of many important works, including the popular American Constitutional Law: Powers and Liberties (2nd ed. Aspen 2005) and Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights (Temple 1995) and such articles as "The Jurisprudence of Poetic License" in the Duke Law Journal and "State Sovereignty and the Tenth and Eleventh Amendments" in the University of Chicago Law Review.  Propertyprofs will be particularly interested in "An Assault Upon 'Takings' Doctrine," in the Indiana Law Journal and "Designation of Heirs" in Real Property, Probate and Trust.  Calvin's also author of a popular student guide on Property; I know it's popular because I saw many of property students reading it last spring.  One of Calvin's trademarks is thoughtful, balanced commentary across a range of areas, including legal and constitutional history, federalism, and political theory.  Plus, he's a great conversationalist.

We're all looking forward to much thoughtful commentary on property and maybe even some other topics, too.  And as you can see from his first post, on the abolition of slavery, he's rethinking how to teach property.  Ah, yes, how property ends--which is related to how we acquire the right to property in the first place.  I'd be interested in how we might use Calvin's insight to begin the property class.

Alfred L. Brophy

August 17, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Property and Russell Banks's Cloudsplitter

    I've been invited to guest blog for a while, an invitation which I am happy to accept.  I have been reading Cloudsplitter, Russell Banks's enormous and fascinating novel about John Brown and his sons.  Cloudsplitter has been in print for eight years but I'm sometimes slow to catch up.  Read (or re-read) it, as it offers remarkable insights into the nature of property (human slavery, of course, in this instance), the way some things lose their status as property, and the psychological process that produces extreme political violence, usually called terrorism. As to the latter point, Banks's fictional account of the process by which John Brown and his sons turned to radical violence in their moral quest to end slavery in America resonates particularly strongly in this era of global terrorism rooted in religious conviction. As to property, Cloudsplitter raises, at least to a property prof, questions about how things lose their status as property.  As we all know, property is not about the relations of people to things, but about the relations between people with respect to things.  How does (should) society restructure these relationships to "de-propertize" (if that's a word) such relationships?  We use ordinary legal processes to (mostly) increase the range of legal entitlement to intellectual property, and we rely on custom to create socially (if not legally) recognized entitlements to such things as a parking place from which one has cleared the snow, or a seat at a meeting.  These processes work in reverse, in theory, but how often do we actually eliminate property?  Extending the public trust doctrine to provide waterfront access is an example, but such extensions are limited by the takings clause.  Did Lincoln's Emancipation Proclamation constitute a taking?  Odious thought, of course.  We start out Property by asking students to figure out where property rights come from in the first instance.  Cloudsplitter caused me to wonder whether we ought to spend a little time also in the beginning asking students to figure out when and how property rights ought to disappear.   

Calvin Massey

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August 17, 2006 in Books, Personal Property, Property Theory, Takings, Teaching | Permalink | Comments (1) | TrackBack (0)

Clavin Massey

As you can tell from the post immediately above, Calvin Massey is joining us for a guestblogging stint.  Calvin teaches property, constitutional law, and other courses at UC Hastings.  His scholarship covers a wide range of subjects; in the property area, he has written on reparations, takings, and is the author of the ever-popular Emanuel on Property.

Welcome Calvin!

UPDATE:  Calvin's so special that he gets to be introduced by both me and Al!  What an honor!  As usual, Al's introduction is better than mine.

Ben Barros

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August 17, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 16, 2006

Justice Powell, Midkiff and Kelo

I've just posted a revised draft of my essay Nothing "Errant" About It:  The Berman and Midkiff Conference Notes and How the Supreme Court Got to Kelo With Its Eyes Wide Open on SSRN.  The essay draws on the Court's conference notes and internal memoranda to contest Justice O'Connor's assertion in her Kelo dissent that the broad language in Berman and Midkiff was "errant."  The new draft includes material from Justice Powell's files on Midkiff that I didn't have when I posted the first draft.  Justice Powell's files include this remarkable memo to Justice O'Connor commenting on her draft opinion:

Dear Sandra:

This refers to our brief conversation yesterday.  I should have been in touch with you sooner.  My suggested changes, set forth below, do not affect your basic analysis.  I have been concerned by the sweep of language that can be read as saying that any “social” purpose may justify the taking of private property.  The language to this effect is primarily on page 14.

I suggest the following as a substitute for the next to the last sentence in the paragraph on p. 14 that carries over from p. 13:

“As the unique way titles were held in Hawaii skewed the land market, exercise of the power of eminent domain was justified.  The Act advances its purposes without the state taking actual possession of the land.  In such cases,”

                                                            *     *     *
The paragraph that begins on p. 14 also can be read broadly to the effect that  “social problems” may be addressed by taking private property pursuant to “social legislation”.  I suggestion revisions of some of the language of this paragraph, beginning with the second sentence, along the following lines:

“Judicial deference is required here because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power.  State legislatures are as capable as Congress of making such determinations within their respective spheres of authority. See Berman v Parker, 348 U.S., at 32.  Thus, if there are substantial reasons for an exercise of the taking power, courts must . . . ”

                                                          *     *     *
The first full sentence on page 13 states that “redistribution of fees simply to reduce the economic and social evils . . . is a rational exercise of the power of eminent domain.”  Again, I am troubled by the emphasis without limits on “economic and social evils”.  In this case we are concerned only with a very specific and unique evil.  I would suggest omission of the phrase “reduce the economic evils”, replacing it with “correct deficiencies in the market”.

                                                          *     *     *
This is a unique case, and I think we may regret language that could encourage Congress and state legislatures to justify taking private property for any perceived social evil.

I am not sending this letter to the Conference, in the hope that changes along these lines will be acceptable to you.  If not, I probably will write briefly.

I do appreciate your willingness to consider these.

Sincerely,

[LFP]

Justice Powell's proposed language was included in Justice O’Connor’s opinion of the Court (467 U.S. at 243-44) but is completely overwhelmed by the broad language in the rest of the opinion.  The memo is striking in part because Justice Powell seemed cognizant of the risk presented by the broad language of the opinion, but proposed changes that were remarkably ineffective in mitigating this risk.  It is also interesting to contemplate what sort of "social purpose" or "social evil" Justice Powell had in mind as something that would be a more suspect exercise of eminent domain.  Midkiff did involve some unusual facts, but at the end of the day the legislation at issue transferred title to homes from landlords to tenants.  In any event, Justice Powell's suggestion that the government end at issue in Midkiff was okay but that there were some government ends out there that would not justify an exercise of eminent domain highlights the fundamental problem with the approach of Powell's memo and of Justice O'Connor's later dissent in Kelo.  Deciding whether a particular "social purpose" justifies government action should be a legislative determination.  The Court could take a principled position that "public use" should mean actual ownership by a public entity, or it could take a principled position based on deference to the legislature that "public use" should mean "public purpose."  Having made the choice to treat "public use" as "public purpose," however, the Court could not make policy choices between legitimate public purposes without intruding on an area of decisionmaking that should belong to the legislature.

On the general subject of Kelo, Ilya Somin has a good post on blight takings, linking to a longer op-ed he wrote on the subject.  Also, I've always thought that the historical analysis in Justice Thomas' dissent in Kelo was a bit thin.  Chuck Cohen's article Eminent Domain After Kelo v. City of New London:  An Argument For Banning Economic Development Takings offers a very good analysis (beginning on page 526) of the flaws in Thomas' opinion.

Ben Barros

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August 16, 2006 in Takings | Permalink | Comments (0) | TrackBack (3)

Property Rights in Endangered Species?

That's the subject of an article in today's NY Times.  Thom Lambert at Truth on the Market and Dave Hoffman at Concurring Opinions have good posts reacting to the article.

Ben Barros

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August 16, 2006 in Natural Resources, Property Theory | Permalink | Comments (0) | TrackBack (0)

Sandefur's New Book on Property Rights

Sandefur_book_picture Tim Sandefur has a new book out called Cornerstone of Liberty: Property Rights in 21st Century America.  I haven't gotten my hands on it yet, but here's the publisher's description:

The right to own and use private property is among the most essential human rights and the essential basis for economic growth. That’s why America’s Founders guaranteed it in the Constitution. Yet in today’s America, government tramples on this right in countless ways. Regulations forbid people to use their property as they wish, bureaucrats extort enormous fees from developers in exchange for building permits, and police departments snatch personal belongings on the suspicion that they were involved in crimes. In the case of Kelo v. New London, the Supreme Court even declared that government may seize homes and businesses and transfer the land to private developers to build stores, restaurants, or hotels. That decision was met with a firestorm of criticism across the nation.

In this, the first book on property rights to be published since the Kelo decision, Timothy Sandefur surveys the landscape of private property in America’s third century. Beginning with the role property rights play in human nature, Sandefur describes how America’s Founders wrote a Constitution that would protect this right and details the gradual erosion that began with the Progressive Era’s abandonment of the principles of individual liberty. Sandefur tells the gripping stories of people who have found their property threatened: Frank Bugryn and his Connecticut Christmas-tree farm; Susette Kelo and the little dream house she renovated; Wilhelmina Dery and the house she was born in, 80 years before bureaucrats decided to take it; Dorothy English and the land she wanted to leave to her children; and Kenneth Healing and his 17-year legal battle for permission to build a home.

Thanks to the abuse of eminent domain and asset forfeiture laws, federal, state, and local governments have now come to see property rights as mere permissions, which can be revoked at any time in the name of the “greater good.” In this book, Sandefur explains what citizens can do to restore the Constitution’s protections for this “cornerstone of liberty.”

Ben Barros

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August 16, 2006 in Books, Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

More on Note Topics

I've just updated my earlier post on property note topics with new ideas on box stores, massive multiplayer online games, and adverse possession.

Ben Barros

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August 16, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Using Eminent Domain to Take A Cross

Today's New York Times has an article on a taking that raises interesting establishment clause issues.  President Bush signed a law that will have the federal government use eminent domain to take a memorial on a hill in San Diego that features a 29-foot Latin cross.  The cross presently sits on land owned by San Diego, and has been the subject of years of litigation.  Both federal and state court judges have held that the placement of the cross is unconstitutional (according to the story, on the basis of the California, rather than the federal, constitution).  The taking by the federal government makes the federal constitutional issue clearer, and makes the case more cert-worthy.  Last month, Justice Kennedy granted a stay of a federal court order that would have required San Diego to remove the cross, writing that “Congress’s evident desire to preserve the memorial makes it substantially more likely that four justices will agree to review the case in the event the Court of Appeals affirms the district court’s order” that requires removal of the cross.

As I've noted previously, there is an interesting Pennsylvania case pending that raises establishment clause issues in the context of a economic-development taking transferring property to a religious school, and the interaction of the establishment clause and the power of eminent domain might make an interesting note topic.  Both of these cases appear to have a way to go before the Supreme Court will have a shot at addressing them, which to me makes them a more attractive subject for a note than something the Court has recently addressed.

Ben Barros

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August 16, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Robert Bevan's Destruction of Memory

Bevan_destruction_memory Yesterday's mail brought a wonderful volume, The Destruction of Memory: Architecture at War.  It discusses a topic near my heart: monuments (in this case mostly buildings, but also a few bridges).  And in this case, he's interested in what meaning destruction of buildings has for the culture that produced them.  Bevan sweeps across centuries, indeed millenia--from Giant Buddahs built in the sixth century C.E., to Armenian architecutre stretching back to the seventh century C.E., to Muslim architecture of the fifteenth and sixteenth centuries in Bosnia, to Jewish synagogues destroyed during World War II, to 9/11.

And it reminds me, of course, of the destruction wrought by the Tulsa race riot--which, among many other things, was about destroying the houses, churches, and shops of an entire community.  It was, as a caption of a postcard printed after the riot said, an episode of "running the negro out of Tulsa."  And the demolition of urban communities, what Justice Clarence Thomas referred to as "negro removal" (a play on "urban renewal") in Kelo, is part of this story as well, though Bevan does not discuss it.

Gombin_synagogue The destruction of buildings is about the destruction of monuments to culture. There are some haunting photographs in the book, which tell stories about which I knew less than I should.  There are several pictures of beautiful medieaval synagogues (51 and 52).  At left is a sketch of the synagogue  built in Gombin, Poland in 1710, which was burned in 1938.  There are other illustrations of an Armenian monastary built from the 7th to 11th centuries C.E.  It survived until the 1940s when it was destroyed as part of the persecution of Armenians in Turkey.

This has some implications for how we think about architecture, destruction of culture, and even building names.  Those who are interested in renaming buildings will have cause to question their views after reading The Destruction of Memory.  For in erasing names we lose something, our heritage.  Sometimes that loss of heritage is itself a tool of forgetting that is important to those in power.

One obvious question is how does this help us understand legal history?  What's the equivalent for law of the monuments that are destroyed?  One obvious answer is in law some monuments are written on paper in the form of judicial opinions.  Those opinions recall how we remember events like the Civil War, Reconstruction, and the end of Reconstruction--or what we're now increasingly calling de-construction.  Judicial opinions can alter our memory of history, of precedent, of constitutional provisions.  So judicial opinions can be destructive, as well as creative.

Now a note that comes close to home:  On my campus, the University of Alabama, the burning of buildings came during the Civil War.  In the closing days of the war in April 1865, Union soldiers burned most of the campus, including the library, which was one of the largest in the nation at the time.  My colleague Paul Pruitt and I are working on publishing the University of Alabama library catalog from 1848, as a way of remembering the University's literary culture.  Paul's idea is to call the volume Burned Books.  I think that's a terrific title.

Update:  The University of Chicago Press website picked up our discussion of Bevan.

And I highly recommend Bevan's Destruction of Memory; it's an important and moving book.

Alfred L. Brophy

August 16, 2006 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, August 15, 2006

Rachel Godsil

I'm delighted to introduce Rachel Godsil, who will be joining us for a guest stint here at PropertyProf.  Rachel teaches Property and related courses at Seton Hall Law School and writes on issues concerning the intersection of race, property, and the environment.  Al recently discussed Rachel's article on Race Nuisance:  The Politics of Law in Jim Crow, and in recent years Rachel has been one of the most insightful commentators on issues of environmental racism in the legal academy.  Look for Rachel's first post in the next few days.

Ben Barros

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August 15, 2006 in About This Blog | Permalink | Comments (1) | TrackBack (0)

SSRN Law School Rankings and US News Law Schools Rankings

I never tire of talk of rankings--particularly rankings of law journals.  So when I saw that Dave Hoffman over at co-op is looking at the rankings of law schools' SSRN downloads, I immediately thought his data deserves some more commentary.  What is the relationship between the top fifty law schools in terms of SSRN downloads and the US News rankings?

All but four schools in Hoffman’s list of the 50 US law schools with the most SSRN downloads are in the USNews top 100. The exceptions are Hofstra, Marquette, Michigan State, and Northern Kentucky.

Of the 50 U.S. law schools with the most SSRN downloads:
   11 are in the USNews top 10 (or 8)
   22 are in the USNews top 20 (or 19)
   25 are in the USNews top 25 (or 22)
   14 have USNews ranks below 50 (including the 4 schools in Tiers 3 and 4). 

The good stuff's below the fold....

Continue reading

August 15, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Two by Roark

Marc Lane Roark (Smith, Gambrell & Russell, LLP) has posted two articles on SSRN on property subjects:

Louisiana Colonial Slave Law - Revolution, Property and Race:

Using the slavery experience of colonial Louisiana, this article argues that sentiment, revealed as political ideology, operated in a parallel dimension with the market, isolated from interaction with the economic dimensions, so that there would be no disruption in either. The law served to insulate both in their separate spheres - honoring both ideological and economic concerns. This article thus recommends a slightly different conclusion than Tushnet and a far different conclusion than Cover - that in the face of political ideology that was prime for emancipation of slaves and an economy that was not yet firmly entrenched as agriculturally dependant, that the law reconciled both the economy and ideology by altering the defining characteristics of humanity, making them personal, valueless and white. Conversely, the slave was exactly the opposite - without legal personality, value rich, and non-white. In this sense, white planters were able in good conscious to continue rhetoric that claimed all men are created free and equal, while driving humans under forced labor conditions. The article begins by describing the political and ideological landscape of colonial Louisiana. Turning to the law, the article considers two ways that the law changes the identity of slaves - first as economic units, and second as non-white persons. Indeed, the observation that slaves were black may be too obvious to state; but towards the end of the eighteenth century, the non-white status of slaves became a determinative social and legal factor in the colony. The article concludes hypothesizing that one of law's most salient features is to remove personal conscious from legal decision making.

The Constitution as Idea: Defining Describing Deciding in Kelo:

In June 2005, the Supreme Court in a Five to Four Decision marked its most controversial decision in recent memory. The case of Kelo v. City of New London, set off a fire storm of response to the Court's ruling that economic development takings satisfied the Fifth Amendment. This essay is about how the Court uses words, how the defining ability of words create institutional space in which the Court operates, and which defines things beyond the words. The essay focuses on notions of Space and Place to define physical ideas and institutional ideas.

UPDATE:  As Al mentions in the comments, we've commented on Roarke's work before.  I thought some of this sounded familiar!

Ben Barros

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August 15, 2006 in Property Theory, Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Claeys on Penn Central and Liberal Property Theory

Eric Claeys (Saint Louis University - School of Law) has posted The Penn Central Test and Tensions in Liberal Property Theory on SSRN.  Here's the abstract:

This Article contributes a conference on takings law sponsored by the Georgetown Environmental Law and Policy Institute and held at Harvard Law School October 2005. The Article uses background theories of property and government to provide a partial explanation of the U.S. Supreme Court's precedent on regulatory takings.

The Article advances two explanatory theses. First, the Penn Central test is not as ad hoc and case-specific as is often assumed. Although the three factors in this test can vary sharply in application, the different factors are regularly construed together to advance one of two theories of government: a classical theory, reflecting the commitments of classical liberalism, and a modern theory, reflecting commitments associated with a centralized regulatory state. Second, the Court's most moderate Justices have used one or the other of these two theories depending on factors including: whether the right allegedly taken is essential to the species of property to which it is attached; whether legal precedent has historically treated that right as essential to the species of property in question; and how compelling are the reasons to regulate potential abuses of that right.

While these insights by no means explain regulatory takings doctrine completely, they are two significant contributing factors in any more comprehensive explanation. They also offer a normative suggestion: Perhaps the Supreme Court's takings jurisprudence is less muddled as a whole than it seems from reading either extreme set of cases in isolation.

Ben Barros

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August 15, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, August 14, 2006

Changing Section 1983 To Allow Land Use Claims In Federal Court

John Baker has a commentary in the Legal Times today (subscription required, unfortunately) discussing the so-called Private Property Rights Implementation Act, which would change Section 1983 to allow landowners to bring land use lawsuits in federal courts.  Here's an excerpt:

Complaining about the high percentage of land-use disputes dismissed by federal judges, developers lobbied hard in 2000 for a bill designed to nullify the U.S. Supreme Court's decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), which required plaintiffs in federal takings claims to seek compensation in state court before filing those claims in federal court. Although it passed the House, the bill met a deserved death in the Senate.

Six years later, Rep. Chabot has resurrected his failed 2000 bill and has tacked on a stunning new section. It would amend the Ku Klux Klan Act of 1871, 42 U.S.C. §1983, to require all judges presiding in suits that allege that property rights were taken in violation of substantive due process to judge the defendant's conduct according to 'whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'
This statutory expansion of substantive due process claims erases the line between constitutional violations and mistakes in the interpretation or application of state land-use statutes and local ordinances. As then-Judge Samuel Alito Jr. recognized in 2003, 'every appeal by a disappointed developer from an adverse ruling of the local planning board involves some claim of abuse of legal authority.'  Conservative Judge Richard Posner made a similar observation when he wrote, 'If the plaintiffs can get us to review the merits. .. under state law, we cannot imagine what zoning dispute could not be shoehorned into federal court in this way, there to displace or postpone consideration of some worthier object of federal judicial solicitude.'

If the bill becomes law, small communities with the courage to say no to developers would find themselves debating the meaning of their own ordinances in federal courtrooms, often located hundreds of miles away. And because any land-use decision 'not in accordance with law' would thereby become a constitutional violation actionable under Section 1983, developers would finally achieve their long-standing goal: to make taxpayers foot the bill for attorney fees incurred in fights about the meaning and application of local law. . . .

The test for substantive due process violations that judges would be required to follow under this bill does not come from the text or legislative history of the due process clause of the 14th Amendment or from any federal appellate court's current interpretation of substantive due process. Instead, Chabot appears to have borrowed it, word for word, from the Administrative Procedure Act of 1946 -- a statute that has nothing to do with constitutional interpretation or federal court review of state and local government decisions.  The notion that 'the federal government knows best' has never had a place in conservative jurisprudence, particularly in areas traditionally of local concern, such as zoning. But this bill would federalize nearly every kind of local dispute regarding land-use regulation.

The best thing about Chabot's bill is that he has chosen an unconstitutional means of accomplishing his dubious ends.  Congress has authority to create new rights by statute, but this bill does not attempt to do that. Instead, the bill takes a path of greater legal resistance by directing federal judges on how they must read existing language in the U.S. Constitution. It explicitly instructs judges how they are to interpret the 14th Amendment's due process clause.

Ben Barros

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August 14, 2006 in Land Use, Takings | Permalink | Comments (0) | TrackBack (0)

Duhl on Customary Rights of Street Vendors

Upennstreetvendor Ben beat me to a post on this.  I've been reading University of Tulsa law professor Gregory Duhl's charming Property and Custom: Allocating Space in Public Places, which has just been posted on ssrn.  I suspect you'll be hearing a lot about this article in the future.

Here's Duhl's abstract: 

Custom predates Sir William Blackstone as a source of formal property rights in the English common law. But courts in twentieth-century America have rarely applied the doctrine of custom, and when they have done so, they have used Blackstonian custom inappropriately as a justification for recognizing public rights to private property. But despite the cry of some scholars, custom is not dead.

Custom offers a justification to protect rights of private individuals to public property, such as those of the lunch truck and cart vendors around the Temple University campus to their parking spaces, squatters to their shelter, and the rights of New Mexicans to the water in acequias. Such informal property regimes often adopt and enforce communitarian practices and usages, or social norms, and, in doing so, increase efficiency and egalitarianism. Courts and legislatures should not interfere with those regimes, and should use positive law, when necessary, to protect them. Doing so affirms democratic institutions and reduces individuals' reliance on the state and positive law for social justice.

Takes this Philadelphia boy back to his youth.  Wow did I love eating from the trucks around the Penn campus.  Strange how over the years what it takes to make me happy has changed (and increased in cost, I fear).

Duhl makes effective use of the experiences of venders around Temple University as the entry point for discussion of custom in American history, as well as its role today.  Reminds me in a lot of ways of Joseph Singer's "Reliance Interest in Property."  At least the result looks rather similar (though I know that Singer was talking about acquiring a right in private property and Duhl's focused on public property).  And Duhl's analysis promises to protect merchants who need that protection and who are providing an important public service.  Plus, it's a nice summary of the recent literature on norms and the relationship between norms and judicial enforceable property rights.  Duhl concludes that "custom offers a doctrinal vehicle for society to achieve a more egalitarian and efficient distribution of public property rights.  Courts should resist looking back to Blackstone, and instead begin looking forward to using customary law to protect informal property regimes in twenty-first century American society."

Finally, I learned a lot about squatters' rights and a couple of cases that I might want to add to either my property or remedies classes: De Villar v. City of New York, 628 F.Supp. 80 (SDNY 1996) and E.13th St. Homestreaders' Coal. v. Lower E. Side Coal. Hous. Dev., 230 A.D.2d 622 (N.Y. App. Div. 1996) both on squatters' rights in New York City; and Vezey v. Green, 35 P.3d 14 (Alaska 2001) on adverse possession in Alaska.  Vezey looks like a nice follow-up to Nome.

One question that I have is do we want to provide some kind of judicially enforceable property right here?  Duhl concludes that custom ought to recognize such private claims to public property.  At some point we may want to recall the property right from the private vendors.  When, in short, do we allow the creation of private rights in public property?  How can public spaces be regulated after we recognize such custom-based claims.  Or is this yet another place where public space is turned into private space?  I think you'll enjoy it; and I'm looking forward to learning more from Duhl in the future.

Endnote: The picture of a pizza truck at the University of Pennsylvania comes from our friends at the Pennsylvania Gazette.

Alfred L. Brophy
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August 14, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)