Saturday, November 4, 2006

"The Anti-Kelo Wave "

Today's WSJ has an editorial that begins:

We'll all find out soon whether next week's elections yield the "Democratic wave" so many political seers have predicted. There isn't much doubt, however, about another kind of electoral wave that has been building across America and is set to crash on Tuesday.

That tsunami is the property-rights backlash, which is the direct result of last year's misguided and deeply unpopular Supreme Court decision in Kelo v. City of New London. A narrow Court majority decided that the Constitution's "takings" clause somehow allowed the government to seize private property not merely for "public use" but also on behalf of other private interests.

And it concludes by getting a little bit nasty:

As is so often the case when it comes to economic freedom, the states absent from this debate are those with liberal legislatures on the East Coast. Politicians in New York, New Jersey and Connecticut (home of Kelo) are so addicted to the tax revenue they get by forcible property transfers to rich developers that they refuse to act on behalf of property rights. This is one more reason for their citizens to keep fleeing these states for more hospitable climes, much as Third World countries that fail to protect property rights watch their human capital flee.

Also absent from this action has been the federal government. The House last year passed legislation that denies federal funds to local governments that use eminent domain for private development. The Senate, per usual, sat on its thumbs. Maybe the sound of the Kelo wave crashing next Tuesday will spur Judiciary Chairman Arlen Specter to listen to the voters and act to protect one of the rights on which America was founded.

Here is a link to the article. [Thanks to How Appealing for the pointer]

Rick Duncan

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

Thursday, November 2, 2006

"The Uselessness of Public Use"

Abraham Bell and Gideon Parchomovsky have an article in the current issue of Columbia Law Review (106 Columbia L.Rev 1412) that takes an interesting angle on Kelo. Here is the abstract:

The Supreme Court decision of Kelo v. City of New London has been denounced by legal scholars from the entire political spectrum and given rise to numerous legislative proposals to reverse Kelo’s deferential interpretation of the Public Use Clause of the Fifth Amendment, and instead, limit the use of eminent domain when taken property is transferred to private hands. In this Essay, we argue that the criticisms of Kelo are ill conceived and misguided. They are based on a narrow analysis of eminent domain that fails to take into account the full panoply of government powers with respect to property. Given that the government can achieve any land use goals through the powers of regulation and taxation without paying compensation to the aggrieved property owner, eminent domain is the government power least pernicious to property owners as it is the only one that guarantees them compensation. An important and counterintuitive implication of this insight is that the calls to restrict the government’s ability to use eminent domain by narrowly construing public use are going to harm, rather than help, private property owners. This Essay then poses the intriguing question: Why does the government ever choose to pay compensation? To answer this question we develop a model of political decisionmaking with respect to land use. Our model enables us to elucidate the political calculus that governs the compensation decision and to specify the conditions under which political decisionmakers will elect to pay compensation regardless of the policy instrument chosen.

Clumbia Law Review apologizes because the full text PDF of this article is not currently available. But the issue is in print (it is on my desk as I type) and it should be available on Westlaw as well.

Rick Duncan

UPDATE: Here is a SSRN link to the article.

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

Blumm and Bosse on Justice Kennedy and the Environment

Michael C. Blumm and Sherry Bosse (Lewis & Clark Law School) have posted Justice Kennedy and the Environment: Property, States' Rights, and the Search for Nexus on SSRN.  Here's the abstract:

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court's crucial voice in environmental and natural resources law cases. Kennedy's central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S. He supplied the deciding vote in each, upholding local use of the condemnation power for economic development under certain circumstances in the first, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters in the second. In both cases Kennedy's sole concurrence provided the margin of victory.

Justice Kennedy has in fact been the barometer of the Supreme Court's environmental and natural resources law compass since his nomination to the Court in 1988. Although Kennedy wrote surprisingly few environmental and natural resources law opinions during his tenure on the Rehnquist Court, over his first eighteen years on the Court, he was in the majority an astonishing 97 percent of the time in environmental and natural resources law cases — as compared to his generic record of being in the majority slightly over 60 percent of the time. And Kennedy now appears quite prepared to assume a considerably more prominent role on the Roberts Court in the environmental and natural resources law field.

This article examines Kennedy's environmental and natural resources law record over his first eighteen years on the Supreme Court and also on of the Ninth Circuit in the thirteen years before that. The article evaluates all of the environmental law and natural resources law cases in which he wrote an opinion over those three decades, and it catalogues his voting record in all of the cases in which he participated on the Supreme Court in an appendix. One striking measure of Justice Kennedy's influence is that, after eighteen years, he has written just one environmental dissent — and that on states' rights grounds, which is one of his chief priorities.

The article maintains that Kennedy is considerably more interested in allowing trial judges to resolve cases on the basis of context than he is in establishing broadly applicable doctrine. Kennedy is therefore a doctrinal minimalist. By consistently demanding a demonstrated nexus between doctrine and facts, he has shown that he will not tolerate elevating abstract philosophy over concrete justice. For example, he is interested in granting standing to property owners alleging taking demands, but he is quite skeptical about the substance of their claims. Another example of his nuanced approach concerns his devotion to states' rights — which is unassailable — yet he has been quite willing to find federal preemption when it serves deregulation purposes. On the other hand, as his opinion in Rapanos reflects, Kennedy is far from an anti-regulatory zealot. But he does seem to prefer only one level of governmental regulation.

At what might be close to the mid-point in his Court career — and with his power perhaps at its peak — Justice Kennedy is clearly not someone any litigant can ignore. By examining every judicial opinion he has written in the environmental and natural resources law field, this article hopes to give both those litigants and academics a fertile resource to till. Although Kennedy has been purposefully difficult to interpret in this field (writing very few opinions until lately), his record suggests that he may be receptive to environmental and natural resources claims if they are factually well-grounded do not conflict with Kennedy's overriding notions of states' rights.

Ben Barros

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November 2, 2006 in Land Use, Natural Resources, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 1, 2006

Trial Court Opinion in Birds v. Wind Turbines

   In my recent post concerning the failure of the Center for Biological Diversity to maintain a public trust claim concerning the death of birds due to wind turbines, I promised to post the trial judge's opinion as soon as I obtained it.  Here it is.

Calvin Massey

November 1, 2006 | Permalink | Comments (0) | TrackBack (0)

'Selling my eggs could clear my debts'

From a BBC story on egg donation:

Alexandra Saunders from High Wycombe has advertised her eggs on the internet. She hopes to make some money to pay off credit card debt.

She says: "I'm 25 and I've got three jobs - one in an office in the day, two in pubs. I work five nights a week, I'm in quite a bit of debt and I just want to get it paid off really."

An article in a magazine gave Alexandra the idea of selling her eggs.

"I was sat in a doctor's waiting room and I read about it in a magazine. It just said 'sell your eggs for thirty grand' or something like that. And I went and put my name down on a couple of websites.

"It was saying about girls coming from Britain and going to America and selling their eggs. It just sounds a good idea - easy money really - and it helps someone out.

"I'm not using them so, if someone else can, it would be good and also clear me out of a hole too," she explained. . . .

Laura Witzens is a spokeswoman for the National Gamete Donation Trust. She thinks more women should be willing to donate eggs altruistically.

She said: "I think the donors want to do it because they see the dollar signs. There's a very interesting book, Confessions Of A Serial Egg Donor, and she's donated five times and she regrets it.

"These girls are typically in their 20s, haven't had families of their own, they're in debt and they want to go on to donate."

Ben Barros

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

Tuesday, October 31, 2006

No Public Trust for Birds in California?

     Altamont Pass, a windy ridge in the east bay portion of the San Francisco bay area is the site of many wind turbines.  In addition to generating energy, those turbines kill around 1,000 eagles and hawks each year, and from 800 to 3,000 other birds annually.  Two years ago the Center for Biological Diversity sued the turbine owners and operators in California state court under California's unfair competition law and the public trust doctrine, in an attempt to stop these deaths.  In mid-October a state trial judge dismissed the complaint as to all causes of action.  The trial judge reasoned that, under California's unfair competition law a plaintiff is required to show personal harm to his property to have standing.  Because the harm alleged was to all Californians via their public trust ownership of the birds, standing to assert the unfair competition claim was absent.  The public trust claim fared no better.  The judge narrowly construed the doctrine to apply to waters, rather than include within the doctrine all unowned natural resources enjoyed in common. 

     A press release from the Center of Biological Diversity provides more information.  Here is a  news article about the decision.  A link to the press release by the law firm representing the turbine operators is here.  A wind energy industry site with links to various issues concerning birds and wind turbines is here.  The complaint is here.  I'm trying to get a copy of the judge's ruling and opinion, which I will post when I obtain it. 

Calvin Massey

October 31, 2006 | Permalink | Comments (2) | TrackBack (0)

Happy Halloween


Well, it's Halloween and that means it's time for a little fun at propertyprof.  I'll begin with one of the most amusing law review articles I've ever read: James Gordon's "How Not to Succeed in law School," which appeared in the Yale Law Journal in 1991.  My favorite line among many good ones:

Just to prove that at heart they are really gentle, fun-loving people, professors will occasionally do something a little bit zany, like wear a costume to class on Halloween. This makes the students laugh and cheer. Before you laugh and cheer, however, you should check your calendar. It is often difficult to tell whether a professor is wearing a costume or not.

Of course, propertyprofs all know Stambovsky v. Ackley, 169 A.D.2d 254, 258.  Ah, what a great case.  (You may recall this entry from summer 2006 on psychological defects.)  And, along these lines, you might also enjoy Judith Richardson's book, Possessions, on the haunted landscape in the Hudson Valley.

You might find Gates v. Roberts, 350 S.W.2d 729 (Mo. 1961) of some interest, because it's about adverse possession of a house reputed to be haunted back in the 1930s.  Nice case of squatters establishing a right to a house.

Then, going back a bit further, William Sampson argued to the New York Supreme Court in 1810 that the common law ought to evolve.  He pointed out that a number of states had abandoned English law.  Then he contrasted old, superstitious the common law with the modern, American law.  Those efforts to abolish the old common law would have been in vain,

if ever and again some unsubstantial specter of the common law were to rise from the grave, in all its grotesque and uncouth deformity, to trouble our councils and perplex our judgments. Then should we have for endless ages the strange phantoms of Picts and Scots, of Danes and Saxons, of Jutes and Angles, of Monks and Druids, hovering over us like "ravens o'er the haunted house" or ghosts "That inglorious remain Unburied on the plain."  In vain would this country advance in commerce, this and industry; in vain science and philosophy make their abode among us; in vain propitious heaven designate with a favoring hand our station on the globe, and distinguish us by freedom and prosperity, if we mar our own destiny by such servile adherence.

Never know where images of witchcraft will appear in conjunction with the common law, do we?

Maybe next year for Halloween, I'll link to some ghost stories where property is important.... Then again, maybe I'll try to figure out John Dryden's role in William Sampson's thought....

Endnote:  The image of the St. James Hotel in Selma--which looks like it might be haunted! and is rumored to be (nice article from the Selma Times-Journal, one of our nation's oldest newspapers)--comes from our friends at the Library of Congress' Historic Buildings Survey, conducted during the 1930s.  Check out their website for some great photographs.  They're a source I often use when looking for public domain illustrations for propertyprof entries.

Alfred L. Brophy
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October 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, October 30, 2006

Roger Pilon on the Kelo Ballot Initiatives

Roger Pilon writes in the LATimes on ballot initiatives designed to respond to Kelo. His article begins:

NEXT MONTH, in 12 states, including California, voters will get a rare chance to talk back to the Supreme Court. Those are the states with measures on their ballots to protect property rights, sparked by the court's 2005 Kelo decision, which lets government condemn a person's property and give it to someone else who can make "better use" of it. In an instant, Americans across the country woke up to the realization that, as Justice Sandra Day O'Connor wrote in dissent, "The specter of condemnation hangs over all property."

To date, 30 states have enacted measures to restrain their power to condemn, and citizens have stepped in where legislatures have balked, placing initiatives on the ballots. Despite intense opposition from the powers who benefit from the status quo, these initiatives are doing well in the polls because they're tapping into a bedrock American principle: the right of everyone to own and enjoy property.

You can read the entire article at this link.

Rick Duncan

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October 30, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Why YouTube Might Not Have Infringement Problems

Tim Wu (Columbia Law School) has a great post on Slate explaining why YouTube isn't likely to go the way of Napster.  This issue came up during my short tour through IP law in my Property class; if you cover this stuff, it might be worth directing your students to Wu's post.

Ben Barros

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October 30, 2006 in Intellectual Property | Permalink | Comments (1) | TrackBack (0)

Sunday, October 29, 2006

Possession as the Root of Title

Over at How Appealing, Howard Bashman reports on a recent 4th Circuit property case (excerpt):

"That possession is nine-tenths of the law is a truism hardly bearing repetition. Statements to this effect have existed almost as long as the common law itself." A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit today issued an opinion that begins, "This case concerns the ownership of papers from the administrations of two governors of South Carolina during the Civil War."

In that opinion, written by Circuit Judge J. Harvie Wilkinson III, the Fourth Circuit affirms a federal district court's ruling that the State of South Carolina "failed to establish that the papers constituted public property under South Carolina law of the Civil War era." As a result, a man who, according to today's opinion, "found the papers in 1999 or 2000 in a shopping bag in a closet at his late stepmother's home" retains ownership of the documents.

More discussion and more links at How Appealing here. This is the same case Al just posted about.

Rick Duncan

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October 29, 2006 in Personal Property | Permalink | Comments (0) | TrackBack (0)

Civil War Era Letters and Presumptions about Property

Governorfrancispickens_1 Carl Christensen brought Judge Wilkinson's opinion in Willcox v. Stroup to my attention.  It's destined for the first year casebooks.  It revolves around a dispute over who has title to a set of several hundred documents from the administrations of South Carolina governors Francis Pickens (1860-1862) and Milledge Bonham (1862-1864).  The papers had been in the family of Thomas Law Willcox since probably 1865 when his great-great-uncle, a Confederate general, seems to have taken possession of them around February 1865, in advance of General Sherman's attack on Columbia, South Carolina.

MilledgebonhamThe papers, then, were in possession of Willcox and his ancestors for more than 140 years (though in the 1940s they were microfilmed and a microfilm copy was put into the UNC's library, so that they've been available to researchers for decades).  In 2004, as the plaintiff was circling the rim of bankruptcy, he offered them for auction, which attracted the attention of the South Carolina archives.   South Carolina obtained a preliminary injunction against the sale.  Subsequently a bankruptcy judge concluded that the papers belong to the state.  A district court reversed that finding.

Judge Wilkinson resolves the case by concluding that the state of South Carolina failed to meet its burden in showing that it ever had a property right in the papers.  (He rested in part on the adage that "possession is nine-tenths of the law" and then asked South Carolina to overcome that presumption.)  Pretty interesting stuff here. 

I wonder, though, whether a better resolution would have been to leave title to the papers in theplaintiff on adverse possession.  Wasn't South Carolina on notice since the 1940s about the existence of the papers--and even who held them?  I think it's harder to go back and make a statement about the law of South Carolina on ownership of papers prepared by governors than to say South Carolina's claim is barred by adverse possession.

I'm always pleased to see cases that support property rights that vested generations ago.  Reminds me in a lot of ways of the United Daughters of the Confederacy v. Vanderbilt University, another case on which I hope to have something more to say soon.  As I say, I think this one's headed for the casebooks.

Endnote: The illustrations are of Governor Pickens and Governor Bonham.

Alfred L. Brophy
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October 29, 2006 | Permalink | Comments (1) | TrackBack (0)