PropertyProf Blog

Intersection of Environmental Law and Land Use

The Pace Environmental Law Review has an issue available online titled Exploring the Intersection of Environmental and Land Use Law: A Special Issue of the Pace Environmental Law Review, Featuring Commentaries and a Collection of Articles by Professor John R. Nolon.  Looks like interesting stuff.

Ben Barros

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Call For Authors: New CAP Series on Comparative Law

Andrew J. McClurg (University of Memphis) is editing a new series of comparative law texts for Carolina Academic Press.  They are seeking authors for various subjects, including property:

Dear Colleagues:

Carolina Academic Press (CAP) is beginning a series of comparative law texts called the “Contextual Approach Series” (CAS).  I’m serving as editor.  CAP and I are looking for U.S. law professors in a variety of subject areas to serve as lead authors for entries in the series.

The goal of the CAS is to create a series of interesting, student-friendly, self-contained, accessible comparative law books that—using co-authors from the U.S. and two other countries—clearly and concisely explain how law works in practice around the world in different subject areas.  The books will be paperbound and roughly 200 pages.
The first book, Practical Global Tort Litigation: U.S., Germany and Argentina (McClurg, Koyuncu and Sprovieri) (PGTL), is in publication production and available for use as a model.  Detailed guidelines for authors in the series also are available.

As the title of the series suggests, each book will be based on a set of case or problem facts raising prototypical, universal legal issues in the particular subject area. This contextual approach is intended to bring comparative law to life and make it digestible and understandable to law students by giving them a foundation to attach the law to.

As an example, PGTL takes a simple products liability case involving a shattering glass jar through the legal systems of the U.S., Germany, and Argentina.  Other examples: a criminal law text could take a simple theft case through the U.S. and two other legal systems; a family law text could take a divorce problem through the U.S. and two other systems; a criminal procedure book could compare the handling of a search, arrest and confession in the U.S. and two other systems; a wills and trusts book could address property disposition upon death in the U.S. and two other legal systems, etc.

The three co-authors will explore and analyze issues raised by the problem facts from the perspective of their respective legal systems in side-by-side country-specific sections.

The U.S. author will serve as the lead author and will enlist, with the editor’s help, the two non-U.S. authors.  The U.S. author has primary responsibility for supervising, editing, and integrating the contributions of the non-U.S. authors.  This will require learning the relevant law of the two non-U.S. countries.  In selecting countries for study, one goal is to choose legal systems that are representative of major world regions, legal traditions or both.

Prospective authors should possess the following: (1) expertise in the relevant subject matter from a U.S. perspective; (2) excellent writing and composition skills; (3) dependability and reliability; (4) an eye for detail in consistency of organizational structure, style, formatting, and citation style; and (5) the time and resources to pursue the project to completion on deadline (roughly 18 months from signing of contract).

A lack of experience or background in comparative law is not a bar if you possess the above qualifications and an interest in studying and learning about other legal systems.  The non-U.S. co-authors are expected to provide the primary expertise regarding foreign law.  I had no prior background in comparative law before writing PGTL with Adem Koyuncu in Cologne and Luis Sprovieri in Buenos Aires.  On the other hand, as a former faculty member at the Florida International University College of Law, I did have access to international resources, which proved essential.

All subjects are open to consideration, although we are particularly interested early on in first-year courses and core upper-level courses.

If you have an interest in becoming an author in this series, please send a preliminary inquiry to amcclurg@memphis.edu that includes: (1) the subject area you would be interested in writing about; (2) a c.v.; and (3) any early ideas you might have regarding a set of problem facts and candidates for the two non-U.S. countries (and co-authors in those countries).

I look forward to hearing from you.  When I was teaching at FIU and living in Miami, I became convinced that comparative law will be a cornerstone of U.S. legal education.  Writing GPTC was one of the most interesting experiences of my academic career.  I learned more than in any year since my first year of law school.

Regards,

Andrew J. McClurg
Herbert Herff Chair of Excellence in Law
Cecil C. Humphreys School of Law
The University of Memphis

Ben Barros

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Steal This Book: They Did. And Hippie Thoughts About Property Rights

Recently I did a search for Abbie Hoffman's Steal This Book.  (I know, I know, I should be working on my monument law essay, but I was taking a break.)  I've heard about Steal This Book for years, but I'd never known what it was about.  You know what: it's available to read in full text on the net.  Hmm, why doesn't that surprise me?  It's on a tenants' rights website, which propertyprof readers may find of particular interest.

What did surprise me is the content of Steal This Book.  I might have guessed it would be about opposition to property rights.  It's not what you might expect.  At least, it's not what I expected.  What I now realize is that it's sort of a how-to manual to put one over on the "system."  Some of it's mildly amusing; lots of it is downright anti-social; parts of it are really scary.  It's an artifact of the late 1960s.  Historians trying to recover the mentality of 1960s radicals will be turning to it.

I didn't know that Hoffman had written parts of it while in jail, which he identifies as "that graduate school of survival.  Here you learn how to use toothpaste as glue, . . . and build intricate communication networks.  Here too, you learn the only rehabilitation possible--hatred of oppression."  Hmm.

Listen to how dated this stuff from the introduction on property rights sounds:

The first section--SURVIVE!--lays out a potential action program for our new Nation.  The chapter headings spell out the demands for a free society.  A community where the technology produces goods and services for whoever needs them, come who may. It calls on the Robin Hoods of Santa Barbara Forest to steal from the robber barons who own the castles of capitalism.  It implies that the reader already is "ideologically set," in that he understands corporate feudalism as the only robbery worthy of being called "crime," for it is committed against the people as a whole. Whether the ways it describes to rip-off shit are legal or illegal is irrelevant.  The dictionary of law is written by the bosses of order.  Our moral dictionary says no heisting from each other.  To steal from a brother or sister is evil.

Then there are some mildly amusing lines about how to get free land:

Despite what you may have heard, there is still some rural land left in America. The only really free land is available in Alaska and remote barren areas of the western states. The latest information in this area is found in a periodic publication called Our Public Lands, available from the Superintendent of Documents, Washington, D.C. 20402. It costs $1.00 for a subscription. Also contact the U.S. Department of the Interior, Bureau of Land Management, Washington, D.C. 20240 and ask for information on "homesteading." By the time this book is out though, the Secretary of the Interior's friends in the oil companies might have stolen all the available free land. Being an oil company is about the easiest way to steal millions. Never call it stealing though, always refer to it as "research and development."

Continental United States has no good free land that we know of, but there are some very low prices in areas suited for country communities. Write to School of Living, Freeland, Maryland, for their newspaper Green Revolution with the latest information in this area. Canada has free land available, and the Canadian government will send you a free list if you write to the Department of Land and Forests, Parliament Building, Quebec City, Canada. Also write to the Geographical Branch, Department of Mines and Technical Surveys, Parliament Building, Quebec City, Canada. Correspondence can be carried out with the Communications Group, 2630 Point Grey Road, Vancouver 8, British Columbia, Canada, for advice on establishing a community in Canada. The islands off the coast of British Columbia, its western region and the area along the Kootenai River are among the best locations.

If you just want to rip off some land, there are two ways to do it; openly or secretly. If you are going to do it out front, look around for a piece of land that's in dispute, which has its sovereignty in question-islands and deltas between the U.S. and Canada, or between the U.S. and Mexico, or any number of other borderline lands. You might even consider one of the abandoned oil-drilling platforms, which are fair game under high seas salvage laws. The possibilities are endless.

If you intend to do it quietly, you will want a completely different type of location. Find a rugged area with lots of elbow room and plenty of places to hide, like the Rocky Mountains, Florida swamps, Death Valley, or New York City. Put together a tight band of guerrillas and do your thing. With luck you will last forever.

Sounds like they should be talking a little about adverse possession, though, don't you think?  And perhaps even something on squatters' rights, a topic you sometimes hear mentioned (like Gregory Duhl's important paper), but never in law school.  Sort of simlar to citizens' arrests.  Ever hear anyone talk about that in law school?  I haven't heard a serious discussion of it, though perhaps we could use a student note on it.

Then there's this about a free education.  Don't know if any of the free universities Hoffman mentions are still in existence.  I hear this line invoked now and again "The only reason you should be in college is to destroy it."  Not a sentiment I have much respect for, but there you have it.... There's certainly some sound advice on auditing classes--always a good way to get some free knowledge.  Pretty soon you won't even need to attend class; you'll be able to download podcasts.

Usually when you ask somebody in college why they are there, they'll tell you it's to get an education. The truth of it is, they are there to get the degree so that they can get ahead in the rat race. Too many college radicals are two-timing punks. The only reason you should be in college is to destroy it. If there is stuff that you want to learn though, there is a way to get a college education absolutely free. Simply send away for the schedule of courses at the college of your choice. Make up the schedule you want and audit the classes. In smaller classes this might be a problem, but even then, if, the teacher is worth anything at all, he'll let you stay. In large classes, no one will ever object.

There are Free Universities springing up all over our new Nation. Anybody can teach any course. People sign up for the courses and sometimes pay a token registration fee. This money is used to publish a catalogue and pay the rent. If you're on welfare you don't have to pay. You can take as many or as few courses as you want. Classes are held everywhere: in the instructor's house, in the park, on the beach, at one of the student's houses or in liberated buildings. Free Universities offer courses ranging from Astrology to the Use of Firearms. The teaching is usually of excellent quality and you'll learn in a community-type atmosphere.

Probably not going to get a law review article out of this on "hippie jurisprudence," but interesting artifacts nonetheless.

Alfred L. Brophy
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Race, Politics and Eminent Domain

Recent guest-blogger Rachel Godsil has an interesting post at CoOp on the impact of race and eminent domain on a Brooklyn congressional race.

Ben Barros

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Parlow on Eminent Domain and Affordable Housing

Matthew J. Parlow (Chapman University - School of Law) has posted Unintended Consequences: Eminent Domain and Affordable Housing on SSRN.  Here's the abstract:

The continuing controversy regarding Kelo v. City of New London demonstrates that there are a number of problems and tensions associated with eminent domain that entice scholars. This article addresses one such problem: the singular link between eminent domain and affordable housing. Though rarely discussed, this link reveals a long history of cities' use of their eminent domain power to advance development projects that rarely include affordable housing. Moreover, when cities condemn property through eminent domain to further new development projects, they often do so in a manner that undermines many of the goals of building more affordable housing. As the need for affordable housing increases, cities' taking of private property for “public purposes” has helped decrease the number of affordable housing units instead of helping keep up with the demand. Moreover, the two competing views in the ongoing debate regarding the proper definition of a constitutional “public use” both marginalize affordable housing. This interplay between eminent domain and affordable housing raises concerns from a social justice perspective and an economic perspective. This article analyzes the sources and issues that have led to the problems stemming from the link between eminent domain and affordable housing and highlights some potential solutions.

Ben Barros

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Ruhl on Lucas and Background Principles

J.B. Ruhl (Florida State University - College of Law) has posted The Background Principles of Natural Capital and Ecosystem Services — Did Lucas Open Pandora's Box? on SSRN.  Here's the abstract:

In his majority opinion in Lucas v. South Carolina Coastal Council, Justice Scalia established the relevant background principles of state property law as the reference point for testing whether public regulation or private property goes so far as to constitute a categorical taking of property. He also confirmed, however, that those background principles evolve with new knowledge and changed circumstances.

Over the past decade, the discipline of ecological economics has produced a burgeoning body of research illuminating the significant economic value that functioning ecosystems, acting as natural capital, supply humans in the form of direct and indirect ecosystem services, such as the capacity of coastal wetlands to mitigate storm surges. This article explores how these findings fit into the Lucas calculus.

Based on work by Professor John Sprankling, the Article concludes that the background principles of property law have resisted integrating concepts like natural capital and ecosystem services into property doctrine. On the other hand, based on work by Professor Michael Blumm, the Article confirms that the amassing body of research about natural capital and ecosystem service values is precisely the kind of new knowledge that ought to transform those background principles. The Article concludes by discussing two recent cases in which courts have done exactly that—to integrate knowledge about natural capital and ecosystem service values in order to apply common law property doctrine in ways contrary to the established background principles. If this trend spreads, Lucas will indeed have opened a Pandora's box, with impacts on the common law it is difficult to imagine the Justice Scalia and majority had in mind.

Ben Barros

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Research Canons For Property Law

PrawfsBlawg has a great new series of posts on the research canons in different areas of the law.  Here's an excerpt from Matt Bodie's post explaining the basics of the idea:

The purpose of this project is to get input from you, our readers, about the most important works of scholarship in the various areas of legal inquiry.

Unlike other disciplines, most law academics do not have an advanced degree in "law."  For students pursuing a Ph.D in areas such as economics, history, or social psychology, they must pass comprehensive exams showing that they have a broad knowledge of the most important works in the field.  It is only after comps that students go on to complete their specialized dissertation research.

Legal academia assumes that entry-level candidates and new scholars have done the background research necessary for their area of expertise.  But it is left to the individual to get this knowledge.  Certainly, the J.D. provides a baseline, and mentors are helpful in providing further direction.  But there is nothing akin to comps that sets forth a comprehensive listing for new folks to follow.  Many of us have heard the question, in the AALS interview, in the job talk, or as a new scholar presenting a paper: "Well, of course, you have read the work of Prof. X in this area, right?"  Failure to respond appropriately to this question may raise eyebrows and cast doubt on the scholar's research.

The Research Canons project is intended to fill this gap.

Property and Real Estate will be up for canonical treatment on Wednesday, 9/13.  [UPDATE: the property canons post is now up on PrawfsBlawg].  Property isn't the most cohesive of legal subjects, so I suspect the list will be all over the place.  I'll give this more thought over the next few days, but here are some of my candidates:

The Classics of the Moral and Political Theory of Property

Locke, On Property
Rousseau, Discourse on Inequality
Bentham, The Theory of Legislation
Marx, Communist Manifesto

Conceptualizing Property Rights

Wesley Hohfeld's Fundamental Legal Conceptions
Thomas C. Grey, “The Disintegration of Property”
Guido Calabresi & A Douglas Melamed, “Property Rules, Liability Rules, and Inalienability:  One View of the Cathedral"

Great Contemporary Work on Property Theory

Margaret Jane Radin, "Property and Personhood" and Contested Commodities
Joseph William Singer, “The Reliance Interest in Property”
Hernando de Soto, The Mystery of Capital
Charles A. Reich, “The New Property”
Milton Friedman, Capitalism and Freedom
William Fischel, The HomeVoter Hypothesis
Ronald Coase, "The Problem of Social Cost"
Garrett Hardin, "The Tragedy of the Commons"
Harold Demsetz, "Toward a Theory of Property Rights"
Lots of articles by Carol Rose and Richard Epstein -- it is hard to pick just one or two

Takings and Constitutional Property

James Madison, "Property"
Joseph Sax, "Takings and the Police Power"
Frank Michelman, "Property, Utility and Fairness"
Bruce Ackerman, Private Property and the Constitution
Richard Epstein, Takings
William Michael Treanor, "The Original Understanding of the Takings Clause and Political Process"

Ben Barros

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The Day I Finally Understood What My Grandfather Was Talking About

When I was in college, my grandfather and I had some conversations about the American flag.  He was a World War II veteran, and took the flag as a symbol very seriously.  I was more ambivalent, not disliking or disrespecting the flag itself but suspicious of the often mindless patriotism that seemed to be associated with the flag as a public symbol.  Five years ago, living in the West Village about a mile and a half north of the World Trade Center, my view of the flag radically changed.  I'm still not a fan of empty-headed flag-waving patriotism, but to me the flag now symbolizes something that to a WWII veteran like my grandfather would be self evident:  that despite our profound differences and the every-day petty squabbling of our political class, we can stand as one when we need to.

Ben Barros

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