Friday, October 20, 2006

Liberal Theories of Property Part III

This is the third in a series of posts on theories that tie property rights to individual freedom.  The first two posts discussed work by Charles Lindblom and Charles Reich, neither of whom can be described as pro-market or libertarian.  Both descriptions fit the subject of today's post, Milton Friedman (though Friedman would prefer "liberal" to "libertarian").  The first chapter of Friedman's Capitalism and Freedom (1962) contains one of the classic articulations of a liberal theory of property.  Like Lindblom and Reich, Friedman discussed the role of property in securing an individual's ability to act independently of the state:

In order for men to advocate anything, they must in the first place be able to earn a living.  This already raises a problem in a socialist society, since all jobs are under the direct control of political authorities.  (At 16).

For advocacy of capitalism to mean anything, the proponents must be able to finance their cause – to hold public meetings, publish pamphlets, buy radio time, issue newspapers and magazines, and so on.  How could they raise the funds?  There might and probably would be men in the socialist society with large incomes, perhaps even large capital sums in the form of government bonds and the like, but these would of necessity be high public officials.  (At 17).

A key additional element of Friedman's theory was the observation that property promotes political freedom by separating economic power from political power:

Viewed as a means to the end of political freedom, economic arrangements are important because of their effect on the concentration or dispersion of power.  The kind of economic organization that provides economic freedom directly, namely, competitive capitalism, also promotes political freedom because it separates economic power from political power and in this way enables the one to offset the other.  (At 9).

Political freedom means the absence of coercion of a man by his fellow men.  The fundamental threat to freedom is power to coerce, be it in the hands of a monarch, a dictator, an oligarchy, or a momentary majority.  The preservation of freedom requires the elimination of such concentration of power to the fullest possible extent and the dispersal and distribution of whatever power cannot be eliminated – a system of checks and balances.  By removing the organization of economic activity from the control of political authority, the market eliminates this source of coercive power.  It enables economic strength to check the political power rather than be a reinforcement.  (At 15).

Next up:  Hayek.

Ben Barros

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

Wednesday, October 18, 2006

Brown University's Steering Committee on Slavery and Justice Report

Brown_university This afternoon, Brown University's Steering Committee on Slavery and Justice released its final report.  The report is available here.  We're been following the story at Brown for a while.  I'll have a few more thoughts after I read in detail the lengthy report, but I have a couple of quick observations.  First, I think Brown will serve as a model for future investigations by schools, as well as businesses, of their connections to slavery and Jim Crow.  I expect that a number of schools will turn in the near future to the Brown report and then begin to ask about their own histories.  Second, Brown's recommendations are about fairly general actions geared towards social justice, like further discussion of its history and educational scholarships.

UPDATE:  Here's an excellent article from, which discusses some of the implications of the report.  I have some more thoughts on reparations here.

I also have some more thoughts on the Brown report over at ratio juris.

Al Brophy
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October 18, 2006 | Permalink | Comments (0) | TrackBack (0)

Hicks on the Property Law Frontier

Gregory Alan Hicks (University of Washington School of Law) has posted Memory and Pluralism on a Property Law Frontier on SSRN.  Here's the abstract:

This article explores the limits of legal victory and the problem of legitimacy of legal outcomes. It chronicles the decades-long dispute between Hispano settlers on northern New Mexico's Sangre de Cristo land grant and the succession of entrepreneur owners of the grant in the last decades of the 19th century and the first decades of the 20th century. The dispute occurred on a legal and cultural frontier defined by the transition from Mexican to U.S. dominion in the years following the end of the Mexican War and by the opening of the region to larger scale economic development at the end of the 19th century. The new Dutch and American owners of the grant sought to displace patterns of land and resource use developed during the Mexican colonial period, and suited to the frontier circumstances and subsistence local economy of that earlier period, with patterns of use intended to encourage new colonial settlement and the intensive development of the region's natural resources. In spite of winning every legal challenge to their new ownership, the new entrepreneurs struggled to establish effective control over land and resources to which they held formal title. The resistance of the Hispano settlers produced continual litigation and exacted efforts from the entrepreneurs to appease the sense of right of the Hispano settlers faced with extinction of their customary rights of access to the land and resources. The settlers' resistance, grounded in a sense of right based on the circumstances of their settlement and in an unwillingness to be displaced from their homes, proved enduring, and stymied the efforts of the entrepreneurs to develop the land as they would have preferred. Using correspondence and litigation records, this article reconstructs the dispute between the U.S. Freehold Land & Emigration Co. and its successors and the Hispano settlers, who organized themselves as the Defensive Association of the Land Settlers of the Rio de Costilla. The article situates the Costilla episode as one of several in American legal history where popular property norms diverge from the property rules offered by the legal system. The article is strongly grounded in the specifics of the Costilla dispute, but it uses its sense of locality to explore larger questions about law, dissent, and the challenges that are posed when a legal system is asked to absorb and reflect pluralist values.

Ben Barros

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

Tuesday, October 17, 2006

PLF Conference on Eminent Domain

The Pacific Legal Foundation is organizing a conference on eminent domain that will be held this Friday, Oct. 20, at Chapman Law School in Orange, California:

What: Symposium on eminent domain issues and debate on Proposition 90.  Free to general public. Attorneys may receive 3 CLE units for $15 ($10 for current Federalist Society members).

Where: Chapman Law School, Room 237, One University Drive, Orange, California 92866.

When: Friday, October 20
1:00 p.m. Panel One:  History of Eminent Domain and Current Controversies.

3:30 p.m. Panel Two:  DEBATE on Prop. 90, which, if passed, would restrict eminent domain and other regulation.

5:00 - 7:00 p.m. Reception.

Who:  Assemblyman Ray Haynes, R-Riverside; Gary Patton, Executive Director of Planning and Conservation League; Prof. Gideon Kanner, Loyola Law School; Ken MacVey, Best Best & Krieger; Prof. John Eastman and Prof. Lawrence Rosenthal of Chapman Law School; John Murphy, Rick Rayl, and Paul Weiland of Nossaman Gunther Knox & Elliot; Tim Sandefur, Dave Stirling, and Harold Johnson of Pacific Legal Foundation.

Ben Barros

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October 17, 2006 in Conferences, Takings | Permalink | Comments (0) | TrackBack (0)

Eminent Domain as Motive For Murder

My student David Warner sent me the TV Guide description of last night's CSI episode "Death Eminent":

A city councilman, the swing vote in an important development plan, is stabbed to death in an empty waterfront house. The investigation reveals the homeowners in the neighborhood where the victim was found are being forced to sell their properties so a wealthy land developer can build a hotel on the site. During the probe, another body turns up and Horatio attempts to link it to an old rival. Also, Nick harasses Natalia at the crime scene.

Probably no surprise, but David thought that the show misrepresented how eminent domain actually works.  But hey, cop shows don't let criminal law and procedure get in the way of a good story, so why be accurate about eminent domain.
Ben Barros
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October 17, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Everything You Need to Know About Bedbugs (Including Their Implications for Landlord-Tenant Law)

The New York Times' article "Everything You Need to Know About Bedbugs but Were Afraid to Ask" has a nice discussion of the implications of the re-emergence of bedbugs in NYC for landlords and tenants.  The Times discusses Peter H. Young's successful claim for rent abatement on his $1000/month loft at 165 Ludlow Street on the Lower East Side:

In June 2004, Judge Cyril K. Bedford of New York City Civil Court found the infestation so harmful to Mr. Young’s “health, safety and welfare” that it violated the implied warranty of habitability — a landlord’s minimal obligation to provide the essential functions of a residence.

“In this case, the bedbugs did not constitute mere annoyance, but constituted an intolerable condition, notwithstanding the landlord’s efforts to exterminate them,” wrote Judge Bedford, who granted Mr. Young a 45 percent rent abatement. (Mr. Young’s landlord, Eric Margules, did not respond to a request for comment.)

Has all the makings of a nice example for property students....

Al Brophy
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October 17, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, October 16, 2006

Supreme Court Denies Cert In Takings Case

Scotusblog has the scoop on the Court's denial of cert in Drebick v. City of Olympia, an exactions case involving fees imposed on a new project to cover the cost of additional services.  Frankly, it would be nice if the Court would hold off on granting cert on any takings cases for a few years so that (a) I can finally spend more time on my non-takings research interests and (b) we can all continue to beat the Kelo horse without any distractions.  Maybe I should send a note to Chief Justice Roberts requesting that the Court take my research agenda into account in its cert decisions.  A new takings case would be great two or three terms from now.  In the meantime, though, let's leave this stuff to the lower courts.

Ben Barros

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October 16, 2006 in Takings | Permalink | Comments (2) | TrackBack (2)

Thanks to Rick . . .

for a great guest stint!  I've learned a great deal about RLUIPA and plan on incorporating it into my land-use unit in the Spring.  Although I'm sympathetic about some of the problems that religious institutions have in dealing with local land-use ordinances, I have to say I have some doubts about the statute, especially its strict scrutiny standard.  There is no question, though, that this is an important statute, and it will be interesting to see how RLUIPA develops in the courts over the next few years.

Ben Barros

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October 16, 2006 in About This Blog | Permalink | Comments (1) | TrackBack (0)

RLUIPA Blogging Finale

It has been a pleasure and a privilege for me to guest blog on ProprtyProf about teaching RLUIPA in Property Class. My thanks to Ben and all of you for this opportunity.

I have a few final thoughts.

1) It is probably worth mentioning that RLUIPA protects not only religious land use, but also religious liberty in prisons. Here is the text of RLUIPA Sec. 3:

(a) GENERAL RULE- No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997), even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) SCOPE OF APPLICATION- This section applies in any case in which--
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.

I don't teach this provision, but I let students know it exists.

2) It is easy to draft an RLUIPA exam question, because there are always new cases being litigated from which you can borrow facts. is a great resource for new cases and issues. For example, my major essay question last year concerned a real case in which the Property Owner's Association threatened to enforce a single family use covenant against a family that was homeschooling their four children at their home in a subdivision. The family's decision to homeschool was based upon religious obligation, the parent's duty to "educate their children in the light of God's truth." The homeschool family was joined once a week by several other homeschool families for group lessons and activities.The covenant required single family use only and prohibited use "for commercial, business, church or school purposes." The POA backed down when Home School Legal Defense lawyers sent a First Amendment SWAT team to defend the family, but the controversy raised some really nice issues about covenants running with the land. By the way, can you spot the RLUIPA issue lurking in the facts? [Hint--is the law of covenants running with the land a "land use regulation" covered by RLUIPA? Remember, RLUIPA requires a broad construction to maximize religious liberty.]

3) Please don't hesitate if you wish to contact me about teaching RLUIPA or other First Amendment issues in Property. I find that issues like these make for a delightful, palate-cleansing sherbert in between main courses such as estates, recording, & landlord/tenant.

Cheers, Rick Duncan (University of Nebraska College of Law)(email:

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October 16, 2006 | Permalink | Comments (1) | TrackBack (0)

Kelo Debate

Chapman University Law Profs Donald Kochan and debated the Kelo/Public Use issue on Hugh Hewitt's radio show.  You can listen to the debate online.

Ben Barros

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

5th Circuit Decides Public Use Case

Ilya Somin at the VC has the details on the 5th Circuit's decision in Western Seafood Co. v. City of Freeport.  Unsurprisingly in light of Kelo, the court rejected the property owner's public use claim, at least to the degree that it rested on the federal constitution.

Ben Barros

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October 16, 2006 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)