PropertyProf Blog

Herein of a lost rare stamp, absentee ballots, and Florida voters

What is it about Florida voters? An article today at Yahoo news begins:

A Florida voter may have unwittingly lost hundreds of thousands of dollars by using an extremely rare stamp to mail an absentee ballot in Tuesday's congressional election, a government official said on Friday.

The 1918 Inverted Jenny stamp, which takes its name from an image of a biplane accidentally printed upside-down, turned up on Tuesday night in Fort Lauderdale, where election officials were inspecting ballots from parts of south Florida, Broward County Commissioner John Rodstrom told Reuters.

Only 100 of the stamps have ever been found, making them one of the top prizes of all philately.

Suppose the absent mined absentee voter realizes what he has done and asks for his stamp back? Well, it appears that the quality of mercy is strained after all in Broward County. Mr Rodstrom "said he doubted the stamp would ever be handed over to someone claiming to have mailed it inadvertently. 'It would be hard to prove, I guess you would have to say it was a person who had Alzheimer's,' he said." 

As they say in Florida, finders keepers, losers weepers.

But query? Suppose a voter shows up and can prove that he owned such a stamp and claims to have used it unintentionally? Is this abandoned property? Lost property? How should such a case come out?

Hmmm. I think I see an exam question beginning to take shape!

Rick Duncan

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The Place of Book Reviews in The Future of the Legal History Book and

Over at ratio juris, I have a lengthy post on the place of book reviews in the future of the legal history book.  Because we sometimes talk about academic publishing here at propertyprof, I thought that I'd post some of the substance here....

Next Saturday I'll be on a roundtable at the American Society for Legal History on "the future of the legal history book." Peter Hoffer's assembled a panel that looks at the book from a variety of perspectives: distinguished authors (Laura Kalman, Hoffer and Herbert Alan Johnson), editor (Johnson) and publisher (Clive Priddle of Public Affairs).   I'm on the panel to talk from the perspective of a book review editor (of Law and History Review). Sort of covers the ground from beginning to end (author to editor to publisher to reviewer). If you're in Baltimore this week, I hope you'll stop by the ASLH; there are a lot of exciting panels.

The panel has me (for obvious reasons) thinking some about the future of legal monograph publishing.  I've written some about considerations for authors as they are selecting a press. Price of books is one that's always on my mind, because if you want a book to get into the hands of students, it has to be really affordable. Of course, authors are also concerned about how much care a press will take with a manuscript: will the press devote some time to editing? Will it get the book out quickly? Will it make an effort to promote the book? When will it bring the book out in paperback?

In these days of drastically reduced library budgets and of shrinking subsidies from universities for their presses, the economics of publishing are really beginning to hurt opportunities for publishing scholarly monographs, I fear. The days of the major university libraries that try to purchase every serious scholarly book are waning. Some presses, like Cambridge, can still expect to sell 225 copies of everything they publish, no matter how expensive. But you have to ask yourself, how many people are going to buy even a terrific book if it costs $190?  And even how many university libraries are going to buy it?  It's a serious problem.

There are still some presses where costs are relatively unimportant. Those are presses where the university is underwriting them to help them get market share. That is, the limits of the market do not apply in the same way at those presses. The University of Pennsylvania Press is one of those that--at least a few years ago--was spending more on production and publicity than they expected to get in return. Penn was willing to fund them because the university saw a major press as an important selling point for the university. In legal history the University of Georgia Press, Northern Illinois University, and University Press of Kansas all produce books that are affordable. They are, perhaps, more interested in publishing than in the bottom line. All of these are senses that I have acquired through looking at their lists and seeing good books, rather than speaking with anyone knowledgeable at any of those presses.

My sense is that Cambridge University Press continues to be one in which cost is, if not no object, certainly subordinate to the quality of the manuscript. One of the reasons I so respect Cambridge is that I think they will produce a book if it's great, even if there is one a small market for it. Ah, it's refreshing to see academic merit as the central (and perhaps only?) consideration.

The long and short of it is that costs are rising; sales are falling; and while there are still some fields where there is enough interest to support excellent scholarship, I fear things are going from bad to worse. The importance of the bottom line continues to grew, as money becomes tighter everywhere.

So Universities are providing less money, book sales are generating less. What's next. How do book reviews fit into this rather grim picture? In ways you would not at first expect. Book reviews are not about selling books, unfortunately. Some years ago one of the syndics at Cambridge told me that their research indicated that reviews of books in academic journals--even prizes--had virtually no effect on sales. For those who are fortunate enough to have review in the New York Times, that helps--but my sense (and limited experience) is that even a review in a major paper other than the Times (and maybe the Los Angeles Times) does little. And reviews in academic journals does nothing in terms of sales. This, I suspect, is the reason that I find it hard to squeeze review copies out of lots of presses: they know this secret as well.

Reviews in academic journals are about something else--something substantially more important than sales: the promulgation of ideas. Reviews are about distributing knowledge. After authors have collected every bit of information and squeezed every story they can out of their research, then put it together in a narrative, waded through interminable edits, and waited another year for the manuscript to appear, it's the book review that reduces their life's work to around 800 words.

So, in 800 words we should tell the ideas in the book. Reviews shouldn't be about what each chapter is about; I think they should be to capture the idea behind the book, locate the book in the stream of other writing, and give a sense of how the book may redirect that stream. Those are the kinds of reviews I most enjoy reading. And they do the authors of the honor of taking their ideas seriously. I suppose all authors would like to see kind things said about their books, but the reviews that take ideas seriously and engage with books are the ones that ought to earn the respect of authors.

I've enjoyed--and learned the most from--the critiques that engage with my thesis. And while sometimes those are hard, I'd much rather have someone seriously engage with my work and help improve it than give some polite (but ultimately dismissive) comment. Book reviewers may feel, with Ralph Ellison's Invisible Man, that they were never so disliked as when they were honest. There are better (and pooer) ways to deliver a critique, of course: but I think that authors appreciate a respectful engagement with their ideas.

So I enjoy matching up reviewers and books. Laura Kalman once used the image of a host trying to arrange seating a dinner party: we want to get people talking to one another who have something to say and also who will provide complimentary perspectives. I try to match up books with people who've worked with the same sources or employed the same methods or worked in the same time period. But in each case, I'm looking for people who have a different perspective. Perhaps my favorite pairing was James Ely as a reviewer of Dylan Penningroth's Claims of Kin Folk. No one has written more than Ely on nineteenth century property; Penningroth's book is about slaves' conceptions of property. What a great juxtaposition of people who work on the same time, but ask very different questions and use different sources. The review was brilliant.

Some of my other favorite pairings include Nan Goodman's review of John Witt's Accidental Republic. Goodman wrote a book on treatment of accidents in literature, so she comes at similar issues from a different cultural vantage. Sandra Gustafson, who wrote an important book on oratory in early national US reviewed Terri Snyder's Brambling Women on women's speech in the 17th century Virginia courtroom. (Snyder's book is delightful, by the way; I think you'll enjoy it, even if you aren't steeped in colonial American history or feminist jurisprudence.) Pretty neat to get people who share similar interests for different time periods talking about their similar (and differing interpretations). Along those lines, there is James Brundage's review of William Burgwinkle's Sodomy, Masculinity and Law in Medieval Literature: France and England, 1050–1230.

Sometimes you need someone who uses similar methods, like statistical analysis of the early American economy or voting patterns. Along those lines, I think of Cathy Matson's analysis of Robert McGuire's quantitative study, To Form a More Perfect Union: New Economic Interpretation of the United States Constitution.

Then you also sometimes want people who are sympathetic to the author's goal, so that they'll understand the work. Stephen Presser's review of John Phillip Reid's work on the rule of law is one example.  Along those lines, I also think of Stephen Siegel's review of Mark Bailey's Guardians of the Moral Order. Stephen has been for decades one of my favorite legal historians. He's also very sympathetic to Bailey's mission of understanding how late nineteenth century moral philosophy provides a language for understanding what judges did. It takes someone like Siegel who's sympathetic to the mission and engaged in it himself, to talk about the limits as well as the virtues of such an important project.

Reviews, then, can serve the function of helping to get ideas into circulation, even as books are becoming less affordable. They provide a vehicle for talking to one another, which we do less and less in the academy. I hope you'll look to future issues of Law and History Review.  There're some more cool pairings coming in the next year.

If any of this interests you, I have some more thoughts on this over at ratio juris.

Al Brophy
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Eugene Volokh on "Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs "

Update: Lots more on this topic from Prof. Volokh over at the VC. 

Eugene Volokh (UCLA) has posted Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs at SSRN. Here is the abstract:

Abstract:     
Alice is seven months pregnant, and the pregnancy threatens her life. She has a constitutional right to save her life by hiring a doctor to abort the viable fetus.

A person breaks into Katherine's home and seems about to try to kill her (or perhaps seriously injure, rape, or kidnap her). Katherine may protect her life by killing the attacker, even if the attacker isn't morally culpable, for instance if he is insane, and even though recognizing this right may let some people use false claims of self-defense to get away with killing the innocent.

Ellen is terminally ill. Under Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, decided in 2006 by the D.C. Circuit, Ellen has a constitutional right to try to save her life by hiring a doctor to administer some kinds of experimental drugs, even though federal law generally bars the use of such drugs.

Olivia is dying of kidney failure. A kidney transplant would likely save her life, just as an abortion would save Alice's, lethal self-defense may save Katherine's, and an experimental treatment may save Ellen's. But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia will likely die if she must wait for a donated kidney (just as Alice, Ellen, and Katherine would be in jeopardy if abortions, experimental treatments, and weapons could only be provided for free).

My claim is that all four cases involve the exercise of a person's presumptive right to self-defense - lethal self-defense in Katherine's case, and what I call medical self-defense in the others.

This is a constitutional right: Roe and Casey secure not just a pre-viability right to abortion as reproductive choice, but also a separate post-viability right to abortion as medical self-defense when pregnancy threatens a woman's life. And given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves through other medical procedures. It can't be that a woman has a constitutional right to protect her life using medical procedures, but only when doing so kills a viable fetus.

And the right is also supported by the long-recognized right to lethal
self-defense: the right to protect your life against attack even if it means killing the attacker. The right has constitutional foundations, in substantive due process, state constitutional rights to defend life and to bear arms, and maybe the Second Amendment. But even if it's treated as just a common-law and statutory right, our accepting it should lead us to accept a similar common-law or statutory right to defend one's life against medical threats as well as against human or animal threats.

The right of medical self-defense thus offers an extra foundation for the Abigail Alliance holding that there is a constitutional right to use experimental therapies to protect one's life. And it makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people's lives; some concerns about organ markets may justify regulations of such markets, but not prohibition.

Eugene has also posted about this paper over at the VC.

Rick Duncan

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Nolon on the Myths of Kelo

John R. Nolon (Pace Law School) has posted Property Rights and Eminent Domain: The Mighty Myths of the Kelo Case on the internet.  I disagree with Nolon on some fine points on the Supreme Court's precedent in this area, but I agree with his overall position.  I also think that his Myth #5 ignores the significant behind-the-scenes role played by Pfizer in pushing for the New London redevelopment plan.  In any event, this short essay is definitely worth a read for anyone interested in Kelo and the Public Use issue.

Ben Barros

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Thomas Jefferson's Property Theory

I've been doing some reading on Thomas Jefferson's views on property.  Jefferson is a notoriously difficult thinker to pin down, and his writings on property in some ways seem inconsistent.  I should note upfront that I am not in any way, shape, or form a Jefferson expert.  But from my non-expert perspective, I think it is possible to attribute a fairly coherent theory of property that has some very attractive features that can be applied to present-day property issues.

Jefferson was both a fan and a skeptic of property rights.  On the plus side, Jefferson’s republican political thought venerated small landowners (particularly small farmers), and Jefferson thought that property ownership was essential to good citizenship.  As a result, Jefferson proposed in Notes on the State of Virginia that “Every person of full age neither owning nor having owned [50] acres of land, shall be entitled to an appropriation of [50] acres in full and absolute dominion, and no other person shall be capable of taking an appropriation.”  In this context, Jefferson had in mind distribution of currently unowned or unused land on the frontier, not redistribution of property that was currently being put to productive use.

Jefferson also was a fan of Locke -- he toted around portraits of his “trinity,” the three philosophers that he thought of as history’s greatest thinkers:  Bacon, Locke, and Newton.  But while Locke's thinking on property was undoubtedly familiar to Jefferson, Jefferson did not share the view often attributed to Locke (perhaps mistakenly) that justly acquired property should be treated as inviolable.  In his famous Rights of Usufruct and Future Generations, a letter to James Madison, Jefferson wrote:

I set out on this ground which I suppose to be self evident, "that the earth belongs in usufruct to the living;" that the dead have neither powers nor rights over it. The portion occupied by an individual ceases to be his when himself ceases to be, and reverts to the society. If the society has formed no rules for the appropriation of its lands in severalty, it will be taken by the first occupants. These will generally be the wife and children of the decedent. If they have formed rules of appropriation, those rules may give it to the wife and children, or to some one of them, or to the legatee of the deceased. So they may give it to his creditor. But the child, the legatee or creditor takes it, not by any natural right, but by a law of the society of which they are members, and to which they are subject. Then no man can by natural right oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment of debts contracted by him. For if he could, he might during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be reverse of our principle.

This passage, like the rest of this letter, largely concerns intergenerational justice.  Jefferson states fairly clearly his view that there is no natural right to inheritance.  I do not think, though, that Jefferson was hostile to the basic structure of inheritance.  The real target of Jefferson's ire in Rights of Usufruct isn't inheritance per se, but intergenerational debt and hereditary aristocratic privileges.

Jefferson began his discussion with a question:  “Whether one generation of men has a right to bind another?”  The use of “bind” here is consistent with Jefferson’s focus on debt.  Jefferson answers the question with this principle:  “the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it.”  As a result, when a person dies, that person’s property “reverts to the society.”  But what happens then?  Absent a legal system, the property will pass to the next “first occupants.”  And who might they be?  Typically, “the wife and children of the decedent.”  So Jefferson does not appear to be hostile to the basic notion of ownership going to the first person to occupy the property.  Nor does Jefferson appear to be hostile to the result of the property going to the decedent’s spouse and children.

If the society has a legal system, then the property will pass to a child, legatee, or creditor according to positive law, not natural right.  In the abstract, therefore, Jefferson can be seen as not being opposed on natural law grounds to a system of redistribution of property on death.  It seems unlikely to me, however, that Jefferson actually would have supported such a system, and it is clear from the rest of the letter that ordinary inheritance is not his real target.  Rather, he immediately focuses on the ability of intergenerational debt to “eat up” the productivity of land for several generations.  By passing debt to the next generation, a current owner arguably takes the part of the productive use from the next generation and transfers it to the present generation.  To prevent this outcome, Jefferson later in the letter proposes limiting the term of debt to the length of one generation.

Jefferson’s point about intergenerational debt translates well to current debate about environmental issues, especially soil erosion.  Overuse of the land can take productive use of property from future generations, and Jefferson’s position in “Rights of Usufruct” has been used by advocates of sustainable land use.

Near the end of Rights of Usufruct, Jefferson discussed another type of intergenerational burden:  systems of ownership passed from one generation to another.

This principle that the earth belongs to the living and not to the dead is of very extensive application and consequences in every country, and most especially in France. It enters into the resolution of the questions Whether the nation may change the descent of lands holden in tail? Whether they may change the appropriation of lands given antiently to the church, to hospitals, colleges, orders of chivalry, and otherwise in perpetuity? Whether they may abolish the charges and privileges attached on lands, including the whole catalogue ecclesiastical and feudal? It goes to hereditary offices, authorities and jurisdictions; to hereditary orders, distinctions and appellations; to perpetual monopolies in commerce, the arts or sciences; with a long train of et ceteras: and it renders the question of reimbursement a question of generosity and not of right. In all these cases the legislature of the day could authorize such appropriations and establishments for their own time, but no longer; and the present holders, even where they or their ancestors have purchased, are in the case of bona fide purchasers of what the seller had no right to convey. (my emphasis)

Jefferson here is talking about property law reform.  The “change [in the] descent of lands holden in tail” Jefferson had in mind likely was the outright abolition of ownership in tail, which would prevent a family from using this device to keep land (and the power that went with it) from being transferred to outsiders.  The rest of Jefferson’s list is a series of other forms of hereditary ownership of property and privileges.  At the end of the paragraph, Jefferson suggests that the state can make these changes with or without making compensation to the owners because there is no right to pass these entitlements from generation to generation.  Implicit in his reference to compensation in the passage underlined above, though, is the suggestion that in other context property owners were entitled to compensation for taken property as of right.

Tying this all together, Jefferson appears to be in favor of the idea of property generally.  His proposal in Notes on the State of Virginia suggest a republican-egalitarian view that all citizens should at least have some property.  He seemed to view property, at least in the intergenerational context, as the product of positive law, not natural rights.  He also appears to be hostile to intergenerational debt and some forms of hereditary ownership that perpetuated the concentration of wealth, and thought that property law could be reformed in progressive ways without incurring takings liability.

Ben Barros

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Alexander on Natural Property Rights

Gregory S. Alexander (Cornell Law School) has posted Comment: The Ambiguous Work of 'Natural Property Rights' on SSRN.  Here's the abstract:

The three fascinating papers by Dick Helmholz, Jim Ely, and Mark Tushnet prompt me to ask, why was there so much talk among late 18th and 19th century American lawyers about property as a "natural" right and why has the language persisted today? More specifically, what work is the rhetoric of "natural property rights" intended to do? This is not the proper occasion for developing anything like complete answers to those questions, but I do want to offer three lines of thought that might begin to approach a fuller explanation of the puzzling persistence of natural-property-rights talk.

Ben Barros

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7th Circuit Rejects Religious Land Use Claim

Over at the Religion Clause blog, Howard Friedman reports:" Yesterday in Vision Church, United Methodist v. Village of Long Grove, (7th Cir., Nov. 7, 2006), the U.S. Seventh Circuit Court of Appeals rejected Free Expression, Free Exercise and RLUIPA challenges to a requirement that churches need to obtain special use permits to locate in Long Grove, Illinois." Prof. Friedman continues: "It held that the involuntary annexation of Vision Church's land was not a land use regulation covered by RLUIPA, and that size restrictions imposed on the church did not substantially burden its exercise of religion. It rejected constitutional and statutory claims of unequal treatment and Vision Church's claim that it had a vested right to build under pre-existing zoning rules."

Update: Here is another religious land use case posted today at Religion Clause:

In Men of Destiny Ministries, Inc. v. Osceola County, 2006 U.S. Dist. LEXIS 80908 (MD FL, Nov. 6, 2006), a Florida federal district court rejected claims brought under both RLUIPA and the Florida Religious Freedom Restoration Act by a Christian residential drug and alcohol rehabilitation program that was denied a conditional use permit to operate in an area near St. Cloud (FL) zoned for residential use. The court found that the county's refusal did not impose a substantial burden on the organization's exercise of its religion since it is free to run its program in other areas of the County that are zoned appropriately or to operate through out-patient counseling rather than with an in-patient facility.

Rick Duncan

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Property Rights on Election Day

Post-Kelo ballot initiatives restricting the use of eminent domain faired well yesterday.  Ilya Somin at the VC has a substantive analysis of the initiatives.  As Somin notes, some of the ballot initiatives that failed mixed provisions that restrict public use with more controversial regulatory takings provisions.

Ben Barros

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History of Property Favorites

I'm just back from the AALS hiring conference.  I was impressed, as always, with the thoughtfulness and quality of people I met there.  Never ceases to impress me how talented the new generation of law teachers is.  Seems to me that the people on the market these days have really promising research agendas and have already done great work--and they seem even better than I remember from previous years.  I learned a lot from the interviews. Now that I'm home, I thought I'd post on one of my favorite topics: scholarship on property history.

This post is inspired by our friends over at prawfs.  They are making their way through the "canons" project, which I think is a great idea.  They came to legal history recently.  I enjoyed the suggestions that the community has over there for legal history (and was pleasantly suprised to see how many books were recommended outside of American legal history).  I thought I might add a little bit about works in the history of property.  And because I suppose my list is idiosyncratic, I thought I'd call them "history of property favorites" rather than something grand like the canon--they are works I enjoy and have learned a lot from and probably deserve some grand term.  I just don't feel qualified to give them that term.

I love Morton Horwitz's Transformation of American Law and Greg Alexander's Commodity and Propriety.  I taught Ariela Gross' Double Character for the first time this semester and the discussion was one of the best I've ever had on a monograph--it appeals to this generation of law students (or at least those who sign up for a seminar on the history of property).  James Ely's The Guardian of Every Other Right's a great, comprehensive introduction to the literature.

Then there's the periodical literature.  Maybe the best article I've ever read in legal history (and there are lots and lots of great ones out there) is William Fisher's "Ideology, Religion, and the Constitutional Protection of Private Property, 1760-1860," in 39 Emory Law Journal 65 (1990).  A rival in the greatest category: Adrienne Davis' "The Private Law of Race and Sex: An Antebellum Perspective," 51 Stanford L. Rev. (1999) on the implication of slave marriages for intestate succession.  Of course, Stephen Siegel's "Understanding the Contracts Clause: The Role of the Property-Privilege Distinction and 'Taking' Clause Jurisprudence," 60 S.Cal. L. Rev. 1 (1986) is encyclopedia.  Siegel categorizes, so far as I can tell, every takings case in the nineteenth century; and gives a great framework for understanding property jurisprudence.  You'll also want to check out William Fisher's  "Ideology and Imagery in the Law of Slavery," 68 Chicago-Kent Law Review 1051 (1993)

In terms of property doctrine, an under-appreciated and terrific article is Charles Reid's "The Seventeenth-Century Revolution in the English Land Law," 43 Cleveland State Law Review 221 (1995). (I'm also partial to my work on Stowe's interpretation of southern legal thought in Dred: A Tale of the Great Dismal Swamp in the Boston University Law Review back in 1998.  Mark Tushnet writes about this and other topics as well in his important book Slave Law in the American South.)

In terms of legal history theory (with application to property), there's William Fisher's “Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History,” 49 Stanford Law Review 1065 (1997).  And along those lines is the exchange between William Nelson and Robert Gordon on critical legal history.  "An Exchange on Critical Legal Studies between Robert W. Gordon and William Nelson," 6 Law and History Review 139 (1988).

Well, that gets a list started.  More later.

Alfred Brophy
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