PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, September 22, 2006

Hierarchy of Legal Scholarship

The legal blogosphere is atwitter about J.B. Ruhl’s provocative post on the Hierarchy of Legal Scholarship, which in simplified for ranks types of legal scholarship (from lower to higher) as doctrinal, theoretical, and empirical.  Larry Solum has already noted some of the flaws in the list, but I think the whole idea is misguided.  To me, there are two things that matter with legal scholarship:  is it good or bad (in the competency sense) and is it interesting or boring.  Using these two metrics, here’s my hierarchy of legal scholarship (from lower to higher):

(1) Bad and boring.  Simple enough.

(2) Bad and interesting.  Often interdisciplinary; only ranks higher than bad and boring because bad and interesting makes for a more entertaining train wreck.

(3) Good and boring.  A lot of legal scholars would switch 2 and 3, though not many would admit to it.

(4) Good and interesting.  Obviously the top.

I personally think that theoretical and empirical scholarship is more likely to be interesting than straight doctrine.  But there is some very good and interesting doctrinal scholarship out there, and it often suffers in the pecking order because good doctrinal scholarship can be subtle.  The great treatise writers (Prosser, Corbin, etc.) were very descriptive, but were transformative in the way they described doctrine.  Only a person familiar with the area of doctrine is likely to recognize the transformative nature of a given piece of doctrinal scholarship.  And hey, who wants to spend the time during a hiring committee meeting trying to figure out whether someone’s scholarship is actually good or bad when you can just dismiss it as [fill in your personal bias]?

Ben Barros

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September 22, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Seizing O.J.'s Right To Publicity

I've been meaning to post on this since I heard about it a few days ago, but Eugene Volokh saved me the trouble with an interesting post on Fred Goldman's attempt to seize O.J.'s right of publicity.  The case will turn in part on whether the right to publicity is viewed as property or as something kind-of-like-property-but-not-quite-property.

Ben Barros

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September 22, 2006 in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Thursday, September 21, 2006

Australian Aboriginal Group Wins Land Claim

Thanks to Niti Zinzuwadia, one of my property theory students, for pointing me to this interesting article.  An excerpt:

A federal court judge has given a tribe of Aborigines a limited land title claim over the major Australian city of Perth.

It was the first such ruling that Aborigines, the indigenous people who lived in Australia before white settlers arrived, were the traditional owners of an urban area. The potentially precedent-setting decision could apply to other large cities.

The ruling determined that the Noongar people were the traditional owners of a 2,300-square-mile area of Western Australia state that includes the state capital of Perth, a city of 1.7 million people.

But Tuesday's ruling by Judge Murray Wilcox only grants Aborigines limited rights to the land, and indigenous people say the issue is about recognition of their rights, not moving homeowners out.

The ruling means the Noongar people can now exercise rights such as hunting and fishing on land where their native title — a claim on land Aborigines held before settlers arrived — has not been usurped by freehold titles, those where the government has passed all interest in the land to the owner, or leasehold titles, where a person leases property from the owner.

Wilcox said the outcome was "neither the pot of gold for the indigenous claimants nor the disaster for the remainder of the community that is sometimes painted."

Homeowners and businesses, for instance, normally hold freehold titles and will therefore not be affected by the ruling, officials said. But unallocated land, such as national parks and reserves, may be.

The decision came as shock to most observers since previous such claims over metropolitan areas have failed because under Australian law a freehold title overrides a native title.

In part to win their case, the Noongar people had to prove they had maintained their culture and customs since European settlement in 1829.

The Western Australia state government said it would appeal the ruling to a higher court — a move welcomed by Prime Minister John Howard's government.

Howard said Wednesday the ruling was "of some considerable concern."

Ben Barros

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September 21, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (1)

Advice to home sellers?

Jockeyuva I have heard that some real estate agents sometimes give advice to "de-black" homes when selling them: take down pictures of Malcom X, certainly; pack up the books on civil rights and race riots; probably even hide the posters of Martin Luther King.  I understand the point behind the advice: home sellers want prospective buyers to be able to imagine themselves in the space.

I wonder if real estate agents ought also to tell sellers to de-politicize their homes more generally.  I was led to this observation when I saw a lawn jockey in the backyard of a really lovely home during an open house.  Of course, I'm looking for a good deal, so it doesn't deter me from purchasing the place.  And who knows about the meaning of the lawn jockey to the owners of the house: maybe they kept it as a reminder of the bad old days.  Observers often make different things out of monuments.

Continue reading

September 21, 2006 in Real Estate Transactions | Permalink | Comments (3) | TrackBack (0)

Loyola LA Seeking to Fill Real Property Chair

Loyola Law School, Los Angeles, is looking for someone to fill the Fritz Burns Chair in Real Property Law, currently held by Roger Findley.  The announcement is available here.

Ben Barros

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September 21, 2006 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 20, 2006

Growth boundaries: right remedy in the wrong cities?

(Cross-posted on my blog)

One thing that has always troubled me against the question of urban growth boundaries around cities. It seems to me that the regions where growth boundaries are most necessary and least likely to be harmful are precisely the regions where they are least likely to be tried.

How so?  Because in a slow growth, Buffalo/Cleveland type region, the costs from growth boundaries are low.  Due to slack real estate demand, it is unlikely that growth boundaries in such a region will lead to inflated
housing prices.  And because the city may die without growth boundaries, the benefits of growth boundaries are high.

By contrast, in a growing region such as Portland or Seattle, there are enough affluent people for city and suburb alike, so even without growth boundaries the core city will be moderately prosperous (at least compared to most Rust Belt cities).  Thus, the major benefit of growth boundaries(i.e. preserving the core key and its older suburbs as decent places to live*) are smaller in a growing region.

And where thousands of people are moving into the region every year, there is a fairly significant risk of growth boundaries causing housing price inflation. Thus, the costs of growth boundaries are higher in a Seattle or Portland than in a Buffalo or a Cleveland.

And yet it is precisely the fast growth regions where growth boundaries and similar experiments are most feasible politically.  Why?

*See my article on growth boundaries in Oregon (available here) which points out that Portland's growth boundaries have been more successful in improving the core city than in solving other problems such as traffic congestion.

Michael Lewyn

September 20, 2006 in Land Use | Permalink | Comments (0) | TrackBack (1)

Liberal Theories of Property Part I

I'm working on a paper on liberal theories of property, i.e., those theories that link the protection of property to the preservation of individual liberty.  As part of this project, I'll be posting a series of excerpts from various scholars' takes on the relationship between property and liberty.  In future posts, I'll get to Charles Reich, Milton Friedman, and F.A. Hayek, but I thought I'd start with Charles Lindblom's Politics and Markets (1977).  Lindblom is very much skeptical of markets and of private property, which makes the following observation all the more powerful:

One last perspective on liberty in market systems can be had in a view of a hypothetical national society without money and markets.  Consider in such a system some characteristic problems in the allocation of housing to the population, for example.  How to decide who gets what?  Is every individual, regardless of age, to be allocated a room or some standard amount of floor space?  Or is the allocation to depend on age and family structure?  Is one’s allocated space to be near one’s place of employment, near one’s friends and relatives, within a mixed socioeconomic group or within a stratified one?  Or suppose one wishes to make a trip.  Who is to be entitled to transportation?  For what reasons?  How often?  By air or bus?  Suppose that one wishes to publish a book or pamphlet.  Who is to be allowed to call on the services of editors, typesetters, distributors, and shipping services?  Who is to be allowed to play the role of artist, musician, publicist, clergyman, union organizer, or party official?

All of these decisions, which the market leaves in the hands of individuals, must now be made by governmental authorities.  Nothing we wish to do that requires expensive equipment, other resources, or help from others beyond the favors of family and friendship can be done without a request to and the cooperation of a government official.  Call us free or not, in the absence of money and markets our way of living is transformed.  For each of the decisions or results that we ourselves are accustomed to achieve through exchange – dozens of decisions in a single day for any one person – we must now ask for an official decision from a bureaucracy.

Talking about "money and markets" in this context is essentially the same thing about private property.  Lindblom's hypothetical highlights a core aspect of the connection between property and freedom -- private property allows people to make decisions about their lives, especially those tied to the allocation of resources, independent of the government.  I'll elaborate on this idea in a future post.

Ben Barros

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September 20, 2006 in Property Theory | Permalink | Comments (1) | TrackBack (0)

Two By Lewyn

Michael Lewyn (Florida Coastal), an occasional guest blogger here and the unquestioned King of Sprawl, has posted two new papers on SSRN.  The first is titled Five Myths About Sprawl:

This review of Robert Bruegmann's book, Sprawl: a compact history, suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon nondrivers.

The second is called Planners Gone Wild:  The Overregulation of Parking, which reviews Donald Shoup's book The High Cost of Free Parking.

Ben Barros

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September 20, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 18, 2006

More on the Latest Body Parts Scandal

From an AP story on the Alistair Cooke body parts scandal:

The medical records that accompanied the body of “Masterpiece Theatre” host Alistair Cooke were wrong in just about every possible way.

His name was misspelled. His birthdate was off by 10 years. His Social Security number wasn’t even close. Also wrong were the name of his doctor and the time and cause of his death.

There was even a bogus name and phone number for a family member who supposedly agreed to donate the 95-year-old celebrity’s body parts for tissue transplants.

We've blogged about the scandal here before.

Ben Barros

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September 18, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Mortgage Delinquncies Trending Up

The Mortgage Bankers Association reports that some measures of mortgage delinquency are trending up, especially for adjustable rate mortgages.

Ben Barros

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September 18, 2006 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

South Texas Seeking Property Profs

South Texas College of Law invites applications from both experienced and entry-level faculty for one or more full-time, tenure-track positions beginning in the 2007-2008 academic year.  While all candidates will be considered, we particularly seek candidates interested in teaching the required Property courses.  Other areas of interest include real estate development and finance, intellectual property, technology, energy, immigration, advanced business organizations, and skills courses.  We seek candidates with outstanding academic records who are committed to both excellence in teaching and sustained scholarly achievement.  Members of minority groups and others whose backgrounds will contribute to the diversity of the faculty are especially encouraged to apply.

South Texas College of Law provides an accessible legal education, distinguished by its excellence, to a diverse body of students committed to serving their communities and the profession.  The school, founded in 1923, is the oldest law school in Houston and is located in exceptional facilities in the downtown area.  It is a private, nonprofit, independent law school, fully accredited by the ABA and AALS, with 56 full-time faculty and 1,200 students.  The school boasts a new state-of-the-art courtroom, a new six-story library, and shares space with two Texas state appellate courts.  The school is well known for its strong advocacy program, which has won more national moot court competitions than any other American law school.  Its legal research and writing program is ranked in the top twenty programs in the nation.

Please send letters of interest and resumes to:
Professor Bruce A. McGovern
Chair, Faculty Appointments Committee
South Texas College of Law
1303 San Jacinto Street
Houston TX 77002
Tel: (713) 646-2920
Email: mcgovern@stcl.edu

September 18, 2006 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Sunday, September 17, 2006

Fletcher on the Marshall Trilogy

Marshall Matthew L.M. Fletcher of the Michigan State University College of Law has recently posted The Iron Cold of the Marshall Trilogy on ssrn.  "The Cold Iron of the Marshall Triology," which takes its title from a Louise Erdrich poem, will appear this year in the North Dakota Law Review.

Here is Professor Fletcher's abstract:

Students of American Indian law cannot -- and should not -- escape from reading the three famous opinions of Chief Justice John Marshall that expounded for the first time in the halls of the United States Supreme Court the bases for federal constitutional common law - the opinions we now refer to as the "Marshall Trilogy." These three decisions, Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, identified the contours of American Indian law as they remain today in the modern era. These opinions are the house in which American Indian advocates, leaders, and policymakers rise each morning -- and it is house filled with an iron cold of the deepest hour.

This essay is an attempt to reexamine the Trilogy for their continuing relevance to students of modern American Indian Law. The pedagogical value of the Marshall Trilogy goes far beyond the mere holdings of the cases. That is not to say the holdings are not significant - they are. But, as Justice Baldwin wrote in Cherokee Nation, the "reasons" for the holdings are more significant than the holdings themselves. The foundations of the current debates over plenary power, state authority in Indian Country, the special canon of construction for Indian treaties, implicit divestiture, the trust doctrine, the political status of Indians and Indian tribes, and others are all to be found within the Marshall Trilogy. For a new student of Federal Indian Law, these three cases are a microcosm of the entire course to come.

This essay reassesses the Trilogy using several methodologies of legal analysis, including legal history, law and literature (and mythology), and law and economics.

I'm still reading this; he engages with Eric Kades' article on Johnson, which has gotten a lot of attention in recent years.  I hope to set aside some time later in the semester to talk a little bit about Fletcher's important article.

The image of John Marhsall is from our friends at wikipedia.

Alfred L. Brophy
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September 17, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)