Friday, October 6, 2006

Critics of RLUIPA

Just another brief post on RLUIPA. I will have several longer posts coming next week.

I have already given you links to the web site that provides lots of supportive information and materials about RLUIPA. Now permit me to introduce you to RLUIPA's most prolific critic, Prof. Marci Hamilton. In her book, God vs. The Gavel: Religion and the Rule of Law, Prof. Hamilton devotes chapter 4 to "Religious Land Use and Residential Neighborhoods."  Here are brief excerpts that give you the flavor of Marci's disdain for RLUIPA: "RLUIPA has turned neighbor against neighbor and is one of the most religiously divisive laws ever enacted in the United States...The churches have an uncanny ability to make standard, fair practices sound inherently prejudiced." I disagree with most of her conclusions about religious liberty, but her book is well-written and very thoughtful.

Marci also has some articles that are available online including:

--STRUGGLING WITH CHURCHES AS NEIGHBORS:Land Use Conflicts Between Religious Institutions And Those Who Reside Nearby (link)

---How Congress Undermined the American Dream: The Effect of the Religious Land Use and Institutionalized Persons Act on Residential Neighborhoods (link)

Here is a money excerpt from the American Dream article:

Currently, homeowners trying to retain the residential character of their neighborhoods are finding RLUIPA an enemy to their dreams. Across the country, cases where religious landowners are seeking to get around residential zoning requirements abound. RLUIPA is the classic siren song, capable of persuading any religious landowner that they need not be good neighbors and that they have "rights" to choose location, size, and use at whim. That siren song has gone platinum as groups like the Becket Fund have funded federal litigation, making the religious landowners' decision to ignore the pleas of their neighbors in favor of federal court easier than ever. (Of course, Congress is largely to blame for such shenanigans because of its ill-advised decision to provide attorneys' fees for lawyers taking on RLUIPA claims.)

In one case, a church seeks to add a fourth story in a residential neighborhood zoned for two stories. In another, a private homeowner asserts the right to hold lengthy prayer meetings that exceed occupancy requirements every weekend. In a third, the church seeks a "small" addition of 30,000 square feet.

In a fourth, a synagogue seeks to convert a piece of property previously used to house a quiet convent, and then a monastery, into a lively complex offering services, education, and a catering hall for hundreds of families. In a fifth case, a quickly constructed 8000 square foot shul is overshadowing its 3000 square foot residential neighbors.

Every one of these projects changes the residential quality of the neighborhood in which it is planned. That is because every one is inconsistent with the character of the neighborhood, and involves a dramatic increase in the intensity of the use of the property, far above normal residential usage. Traffic (both pedestrian and automobile), lighting, setbacks, height, bulk, noise, and parking are all elements that contribute to the degradation of residential character; each project would alter at least one, and often several, of these elements.

Powerful stuff.

Rick Duncan

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October 6, 2006 | Permalink | Comments (1) | TrackBack (0)

A Rant on Moore v. Regents

I taught Moore v. Regents on Wednesday.  As always, the fascinating factual scenario presented by the case sparked a great discussion.  Every time I teach the case, though, I'm struck by the very poor reasoning in the majority opinion.  It sucks.  It is really, really bad.  It is so simplistic, mechanical, and wrong that I suspect that it was drafted in crayon.  Most of the points made by the majority are absolutely demolished by Justice Mosk in dissent.  The California Supreme Court knew that this was a tremendously important case, and it is a sad statement about the quality of that court that it couldn't produce an opinion that at least had some intellectual content beyond "we don't want to recognize property in the body, but we don't really know why."  I don't mean to suggest that there aren't good arguments for the result reached by the court -- problems of commodification and economic coercion, among others, are very strong arguments for rejecting a claim of property in the body.  These good arguments, however, are completely absent from the majority opinion.  Therefore, I, D. Benjamin Barros, hereby resolve never to require my property students to again waste their time by reading the majority opinion in Moore, unless, of course, I change my mind.  I'll cover the case and the issues presented therein, but I don't have the time to use the case as an instruction tool about poor legal reasoning.  Life's too short to read bad law.

Ben Barros

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October 6, 2006 in Property Theory, Teaching | Permalink | Comments (7) | TrackBack (0)

Thursday, October 5, 2006

Epstein on Religious Liberty and Property Rights

I am fully booked teaching today, so I only have time for a short post on religious liberty and property rights. I thought what I would do is refer you to a great op-ed on the subject by Richard Epstein. It might make a nice handout as an introduction to religious liberty issues in Property, whether under RLUIPA or even when discussing the landlord whose religion compels her to refrain from renting to unmarried cohabitants.

The Epstein piece I am referring to is a Wall Street Journal op-ed (July 27, 1994, at A15) entitled "The Welfare State's Threat to Religion."  In this essay, Epstein argues that: "An even broader look at the place of religion in the welfare state shows that many of the greatest threats to religious liberty stem from insufficient protection of individual liberty in economic affairs....The protection of private property does more than promote market efficiency; it enhances the level of human freedom in the most intimate and personal parts of our lives."

I don't have a link to this article. But if you can have your libray track it down, it would make a nice handout for a unit focusing on religious liberty and property.

Rick Duncan

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October 5, 2006 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 4, 2006

Teaching RLUIPA in Property Class

Ben has been kind enough to invite me to guest blog about my experiences teaching RLUIPA (the Religious Land Use and Institutionalized Persons Act of 2000) as part of my 1L Property course here at Nebraska. I am delighted to do so, because every year the RLUIPA unit is one of the highlights of my Property class (both for me and, so I am told, for many of my students).

RLUIPA (42 U.S.C. sects. 2000cc et seq.) (link) is surely one of the most important developments in the law of property and land use in recent years. Signed into law by President Clinton on September 22, 2000, RLUIPA is a federal civil rights law that protects religious land uses from discrimination and substantial burdens imposed by restrictive land use regulations.

RLUIPA was needed because churches, religious ministries, and other religious land users often find themselves unpopular with local residents, businesses, tax collectors, and (thus with) local government. The problems are particularly severe in the case of churches that are considered “non-mainstream” because of racial, ethnic, or sectarian factors. In a recent law review article, Roman Storzer and Anthony Picarello observed that: “Churches in the United States are facing ever-increasing pressure by municipal authorities to limit their physical presence in America’s cities and towns. According to zoning boards, mayors, and city planners across the nation, churches may belong neither on Main Street nor in residential neighborhoods. And those whom neighbors deem a ‘cult’ may not belong at all.”

After sharing the Storzer & Picarello quote with my students in a handout I distribute to the class, I ask them: “Do churches belong in residential neighborhoods? In commercial districts? If your answer is 'no,' then where do churches and religious ministries belong in a typical town or city?”

I hope the authors of Property casebooks will someday cover RLUIPA in some reasonable fashion, but until they do I use a handout that contains the following:

1) An introductory note containing some background information about RLUIPA and some comments and questions;

2) A copy of the statute;and

3) Two RLUIPA cases: Murphy v. Zoning Com’n of Town of Milford, 148 F. Supp. 2d 173 (D. Conn. 2001) and (in this year’s handout) New Life Ministries v. Charter Township of Mt. Morris (E. D. Mich. 2006) (link)

The Beckett Fund has established a wonderful web site covering (link)--which contains information about cases, pleadings, briefs, and scholarship concerning RLUIPA. In particular, this site contains helpful discussion and links concerning the two cases I assign to my students (Murphy) (New Life Ministries scroll down).

I plan to discuss these two cases (as well as some others) in future posts. For now, suffice it to say that RLUIPA brings some interesting issues concerning the public law of property and statutory interpretation into the first year Property class. It also brings a nice real world component into the course, because churches and religious ministries are ubiquitous and increasingly find themselves at odds with local land use authorities. It is also a great "table turning" issue, because it converts a government-always-wins zoning dispute into a plaintiff-often-wins civil rights/religious liberty case.

I really enjoy teaching RLUIPA in Property!

Rick Duncan

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October 4, 2006 | Permalink | Comments (1) | TrackBack (0)

Guest Blogger Rick Duncan

I'm delighted that Rick Duncan will be joining us as a guestblogger.  He's the Sherman S. Welpton, Jr. Professor of Law at the University of Nebraska College of Law.  He is a graduate of the Cornell Law School and served as an editor of the Cornell Law Review.  He teaches Property and Constitutional Law with a special emphasis on the law of religious freedom.  Duncan has written numerous books, articles, and commentaries on a wide variety of legal topics. His recent publications include two of the leading law review articles on the Free Exercise Clause, and his essay, “On Liberty and Life in Babylon: A Pilgrim’s Pragmatic Proposal,” which was published by Yale University Press in an important book about Christian Perspectives on Legal Thought.  Duncan lives on a gravel road in rural Nebraska with his wife and 5 children, and he is a lifelong citizen of Red Sox Nation.

Ben Barros

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October 4, 2006 in About This Blog | Permalink | Comments (1) | TrackBack (0)

Dagan on The Social Responsibility of Ownership

Hanoch Dagan (Tel Aviv University) has posted The Social Responsibility of Ownership on SSRN.  Here's the abstract:

Gregory Alexander's new book The Global Debate over Constitutional Property provides a unique opportunity to reflect upon the functions of comparative law and the nature of ownership. This Comment highlights the role of comparative law in upsetting law's tendency to turn contingency into necessity, but also warns against the illusion that comparative law can yield normative conclusions without an independent and critically constructive legal inquiry. The Comment offers such an inquiry in order to substantiate Alexander's call to adopt the German constitutional model of incorporating social responsibility into the concept of property. It studies the reasons as well as the potential risks entailed by such a move, and outlines the contours of a takings doctrine that takes the social responsibility of property owners seriously.

Ben Barros

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October 4, 2006 in Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Ruhl and Salzman on Ecosystem Services and the Public Trust

J.B. Ruhl (Florida State) and James Salzman (Duke) have posted Ecosystem Services and the Public Trust Doctrine: Working Change from Within on SSRN.  Here's the abstract:

What to do with the public trust doctrine? Environmental law scholars have been asking that question for going on 40 years, ever since Professor Joseph Sax surmised in his famous law journal article on the topic that of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems. In this Article we briefly survey reasons why his vision has yet to be fulfilled, and we propose a way the public trust doctrine can be used to achieve a good measure of Sax's vision by working from within the doctrine, not by changing it.

Unlike the outpouring of academic proposals to liberate, expand, and modify the public trust doctrine to fulfill Sax's goals, for purposes of this Article we accept that the doctrine remains bound to its utilitarian origins. Rather than propose expanding the doctrine outside of its traditional boundaries, therefore, we use its core utilitarian purposes as the medium for protecting ecological resources. We employ the concepts of natural capital and ecosystem services to develop the ecological scope of the public trust doctrine from within. Our argument is straightforward: traditional public trust resources often contain natural capital supplying economically valuable ecosystem services to the public; the public's enjoyment of those values is appropriately treated as a use of the trust lands within the meaning of the public trust doctrine; therefore, the restrictions applicable under the public trust doctrine attach to the natural capital found on trust lands. Thus, rather than reshape the public trust doctrine to fit ecological goals, we propose reshaping the way ecological goals are framed to fit the public trust doctrine. This approach both advances Sax's vision and mitigates the concerns other scholars have expressed about stretching the public trust doctrine beyond its traditional scope.

Ben Barros

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October 4, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Private Property Rights Implementation Act Passes House

The Private Property Rights Implementation Act of 2006, which among other things is intended to legislatively overrule Williamson County, passed the house last Friday.  The New Jersey Eminent Domain Blog has the text of the bill and some commentary.

Ben Barros

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October 4, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 3, 2006

What Missionaries Thought: About Property Law, For Instance

Binghampage35_1 By the time Chief Justice John Marshall wrote Johnson v. McIntosh in 1823, Christian missionaries from Connecticut had been living in the Hawaiian Islands (known to them as the "Sandwich Islands") for three years.  Though they were separated by 5000 miles, they spoke a language similar to Marshall, of Christianity, civilization, and property.


There has been much writing on the role of the missionaries in the process of colonization (or what's now called by some in Hawaii, occupation).  Lilikala Kame'Eleihiwa's Foreign Land, Native Desires has interpreted the missionaries as agents of capitalism.  And much recent writing has focused on the Hawaiians' reactions to the new comers.  Stuart Banner, for instance, asks why Native Hawaiians adopted western patterns of land ownership?  His answer is that the powerful among the natives were "preparing to be colonized"--that is, they saw what was happening and wanted to maintain their wealth and power, to the extent possible, following colonization.  They could do this, they thought, by adopting a western property regime.

I have a somewhat different project, which takes its title from Marshall Sahlins' much-discussed book, How Natives Think: About Captain Cook, For Instance.  Sahlins was engaged in a debate with Princeton anthropologist Gananath Obeyesekere, over whether native Hawaiians actually thought that Captain Cook was Lono, a god of the new year--or whether that was merely how westerners thought natives thought.  The question is whether natives believed Cook was Lono has some implications for our understanding of how native thought.  Sahlins' point is that Obeyesekere is imposing his own set of values on the natives, about what is rational.  And so Sahlins turns what was an attack on him for imposing western values (of course, the natives must have thought that Cook was Lono) into a claim that he respected natives' ideas more than Obeyesekere (maybe some in the west think it's irrational for natives to think that Cook was Lono, but it made sense within their world).  Whew--a lot going on the exchange.  It's an engaging read.  Here's a flavor: "Heinrich Zimmerman heard it directly from the Hawaiians: Cook was Lono."  Brilliant first line, don't you think?

I’ve been thinking a lot about Hawaiian history recently-–and particularly what happened after the missionaries arrived from the mainland in the early 1820s.  I’m interested in this, because there was a process of conversion to western patterns of property rights.  Hawaii offers an important (and underutilized) vantage for viewing ideas about property's place in human society.

My project, then, is concerned with what the early missionaries (those who were there in the 1820s and 1830s) thought about what they were doing.  [Yes, I must confess, I am one of those people who study conservative, often proslavery, dead white males (college professors and more frequently judges).]  What the missionaries thought they were doing has some implications for understanding antebellum history: what motivated them?  How did the missionaries reflect the values of their brethren who remained on the mainland?  How did ideas about progress, Christianity, and property all fit together?  This is fertile ground for understanding intellectual history--and for getting at the rich questions that historians have about the process of colonization.  How did the intellectual structure behind colonization work?  Did Christianity include the common law?  How was Christianity related to the market economy?  Fits into what's been written about the antebellum mind by Elizabeth Fox and Eugene Genovese in The Mind of the Master Class.

How Missionaries Thought: About Property, For Instance

So let me introduce my primary subject: Hiram Bingham, a former Yale student, who was in the first group of missionaries sent by the American Board of Foreign Christian Missions, to the Hawaiian Islands.  Bingham's memoirs, Twenty One Years in the Sandwich Islands (full text available through the Library of Congress), tell his story of the unfolding of the missions and the progress of the propagation of Christianity.  Dedicated propertyprof readers will recall a story about Hiram Bingham III: as a young Yale professor, he was responsible for acquiring some treasures from Peru for the Yale art museum.  Peru wants them back and the Yale Daily News has the latest (and next to the latest).

Hiram Bingham begins his discussion of his arrival in Hawaii, on March 31, 1820,  with this provocative statement about his views of the Natives and his goals there:

Their manoeuvres in their canoes, some being propelled by short paddles, and some by small sails, attracted the attention of our little group, and for a moment, gratified curiosity; but the appearance of destitution, degradation, and barbarism, among the chattering, and almost naked savages, whose heads and feet, and much of their sunburnt swarthy skins, were bare, was appalling. Some of our number, with gushing tears, turned away from the spectacle.  Others with firmer nerve continued their gaze, but ready to exclaim, Can these be human beings! How dark were I and comfortless their state of mind and heart! How imminent the danger to the immortal soul, shrouded in this deep pagan gloom! Can such beings be civilized? Can they be Christianized? (81)

Thus, Bingham (not surprisingly, because he was a missionary) focused on the goal of conversion to Christianity and "civilization."  What did that mean?  What was the role of property and the "rule of law" in "civilization"?

Continue reading

October 3, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Monday, October 2, 2006

Bar Pass Rates in California and New York

Lawbarpassels2_1 Over at Money-Law, I have a post on the relationship of schools' bar pass rates and the LSAT scores of their students in California and New York, which follows up on some of Bill Henderson's discussions over at ELS blog (and here, which inspired a discussion at Money-Law).  I get a lot of inspiration from Bill!

Tomorrow, in honor of propertyprof's one-year anniversary, I shall post something on missionaries' thoughts about property law in Hawaii in the period 1820-1850.  The missionaries had some pretty interesting ruminations on the connections between property law and civilization....

Alfred L. Brophy

October 2, 2006 in Law Schools | Permalink | Comments (1) | TrackBack (0)

California Eminent Domain Reform

Ilya Somin and Tim Sandefur have posts analyzing California's recently enacted post-Kelo eminent domain "reform" laws.  Somin's post is here; the first of a series of posts by Sandefur is here.  Their conclusion:  the laws don't achieve much of anything.

Ben Barros

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