Friday, December 15, 2006

More on the Prairie Dogs

On the subject of Eduardo's post on prairie dogs and property, here's a local news story about the controversy.  Watch the video, rather than read the summary.

Ben Barros

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December 15, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 14, 2006

Teaching Out of Order

As I mentioned in a previous post, I changed up the order of subjects in my first-year property class.  Among other things, I moved up nuisance to the first few weeks of class.  The previous year, I had instead moved the introductory material on theory to the later part of the course where nuisance usually goes -- right before zoning, etc -- so that I could do the material on externalities in tandem with the material on nuisance.  I liked doing the theory together with the nuisance, but also liked doing some theory up front.  Hence, the attempt at doing nuisance early in the course, which had the added benefit of illustrating early on how property rights can conflict with each other.  Having done it now both ways, I think that next year I'll move nuisance, along with the theory, back to its position later in the course.  I still like doing the nuisance and theory together, but nuisance fits better conceptually with the land use material, and even though I'm a property theory geek I don't emphasize that much of it in first-year property.

Another subject that I've been doing out-of-order is landlord-tenant, which I do very early in the course, right after finding, gifts, and adverse possession.  Landlord-tenant can really go anywhere in the course, and I like doing it early because it is fairly intuitive and the students can really relate to it.

Ben Barros

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December 14, 2006 in Teaching | Permalink | Comments (1) | TrackBack (0)

Another Milestone: 50,000 Visits

Milestonewales Just passed this afternoon another milestone here--our 50,000th visit.  And looking forward to many more returns.

I thought I'd take the opportunity here to post a little bit on a more recent monument: the new Dallas football stadium.  Marc Roark sent along this link about the stadium.  I don't know much about football stadiums, though I should note that one of our nation's largest sits about a mile from my office.  Marc thought there's the possibility of some comment on the video and the boast that the stadium will be one of our planet's most recongizeable landmarks (or some similarly grand statement).  Thanks to our readers--and particularly to our content providers, Ben, Carl Christensen, Rick Duncan, Rachel Godsil, Calvin Massey, Jim Smith, and Eduardo Penalver.

The milestone from Wales is courtesy of our friends at wikipedia.

Al Brophy

December 14, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)


A few minutes ago, we had our 50,000th visit to PropertyProf.  I was hoping that it would be someone from Indonesia or someplace similar, but near as I can tell, it was Brophy or someone else from U. of Alabama.  Anyway, thanks for visiting!

Ben Barros

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December 14, 2006 in About This Blog | Permalink | Comments (2) | TrackBack (0)

Christmas, Wingless Angels, and Fair Housing Laws

I know law profs are supposed to deny that there is a "war on Christmas," so let's just call this a little skirmish over Christmas. Liberty Counsel just put out a press release that tells the following story:

Senior Housing Facility Orders Wings Cut from Angel on Christmas Tree
Housing Facility Faces Possible Lawsuit for Religious Discrimination

Orlando, FL – Seniors living in an Orlando area retirement home are facing blatant religious discrimination because of censorship of Christmas in their homes. Liberty Counsel is intervening to defend the religious freedom of residents.

The management at an Orlando area retirement home, Orlando Cloisters, issued a directive to strip the common areas of any religious symbols or words in Christmas displays. At the management’s direction, an employee at Orlando Cloisters cut the wings off the angel on the Christmas tree. Angels were also removed from a display by the elevator. The management issued a directive to the residents explaining that “Christmas trees, Santa Claus, wreaths, Hanukah Menorahs and ‘Seasons Greetings’ are all acceptable, as these items are not considered religious symbols.” Menorahs are indeed, religious symbols.

The Federal Fair Housing Act protects people against discrimination in housing, including religious discrimination. The retirement homes cannot legally censor out the Christian aspects of the Christmas holiday.

Anita Staver, President of Liberty Counsel, commented, “I am astounded that the management would show disregard for the residents’ religious beliefs by cutting the wings off an angel on their Christmas tree! The management of Orlando Cloisters has sent a clear message that Christians are not welcome. I have great compassion for the elderly and cannot stand to see any of them deprived of the joy of Christmas.”

Staver continued: “We will call upon the federal government to issue Christmas guidelines designed to prevent religious discrimination that often occurs in senior living facilities. If Christmas is censored from these precious ones, we all lose a piece of our religious freedom.”

I must admit I don't know about the application of the Fair Housing Act in private retirement homes. For example, if residents are allowed to decorate common areas with secular holiday decorations and even Menorahs, but not with angels, it sure looks like religious discrimination and viewpoint discrimination of religious expression. But does this kind of religious discrimination violate the Fair Housing Act? I don't know.

However, if Liberty Counsel's facts are accurate, this seems like a very Scrooge-like (if not "war" like) move on the part of the home's management.


Just a brief personal comment on issues like this. I believe that in a religiously pluralistic society such as ours (and such as would be typical in a retirement home in Orlando), the best way to handle holiday decorations/celebrations is pluralistically. As much as we make fun of the Supreme Court's "just add a few plastic elves & reindeer" test for Christmas displays on government land, it is a reasonable compromise when a retirement home (or a department store) decides how to celebrate the holidays. The best way to include everyone is to include everyone. The retirement home should welcome residents who wish to share wreaths, elves, Santas, Kwanza decorations, Menorahs, angels (with wings unclipped), and even a baby Jesus. Department stores should wish us Happy Hannakah, Merry Christmas, Jolly Kwanza and Happy Holidays! When someone asks me about the war on Christmas in department stores, I reply: "I do my generic 'holiday' shopping at stores that wish me a Happy Holiday, and I do my Christmas shopping at stores that wish me a Merry Christmas."

As far as government displays are concerned, I agree with Ben that government should not endorse a particular religion, but I think there is nothing wrong with government recognizing, by means of a holiday display, that part of the community is celebrating a religious holiday. The average person just doesn't understand why it is okay for a public school to celebrate "gay pride" month, but not Christmas. Nothing in the text or history of the Establishment Clause supplies an answer to this question. Best wishes to you all.

Rick Duncan

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December 14, 2006 | Permalink | Comments (2) | TrackBack (0)

Prof. Solove on "A Guide to Grading Exams"


Rick Duncan

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December 14, 2006 in Teaching | Permalink | Comments (0) | TrackBack (0)

Carpenter on Sacred Sites and the First Amendment

Kristen A. Carpenter (University of Denver School of Law) has posted Old Ground and New Directions at Sacred Sites on the Western Landscape on SSRN.

The federal public lands contain places with both religious and secular value for American people. American Indians, in particular, hold certain natural features to be sacred, and visit them for ceremonies and worship. Simultaneously, non-Indians use the same places for economic, recreation, and many other purposes - and conflicts arise between these groups. In the past twenty years, a body of constitutional jurisprudence has developed to address questions of religious freedoms and public access rights on these lands that are owned and managed by the federal government. This article outlines the relevant First Amendment framework as well as recent statutes that apply in sacred sites cases. Acknowledging that the law fails to satisfy parties on all sides of the dispute, it also suggests new directions for scholarship and advocacy in the sacred sites realm.

Ben Barros

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December 14, 2006 in Land Use, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Burnett on Native American Claims Under the NHPA

David Burnett (UVA School of Law) has posted The False Promise of the National Historic Preservation Act for Native Americans on SSRN.  Here's the abstract:

Native Americans have frequently relied on the First Amendment in defending their land rights against the federal government. However, tribes have generally failed to prove that disputed land is central to their religious beliefs and practice, as required by free-exercise jurisprudence, and therefore have not won many First Amendment claims. Consequently, several authors have recently recommended that Native Americans look to the National Historic Preservation Act (NHPA) as an alternative source of legal protection for land rights. This 1966 Act requires federal agencies to consider the impact of their actions on historic properties and requires agencies to consult with interested parties, including Native Americans, before undertaking such actions.

Surprisingly, no one has examined how Native Americans have fared with these NHPA lawsuits. This note remedies that shortcoming by surveying the history of Native American NHPA lawsuits. The result is not very encouraging for plaintiffs, since most of these claims have failed. However, the lawsuits have failed because of obvious and easily remedied shortcomings, such as weak facts or misuse of the statute (including suing the wrong party, suing too late, and suing based on economic rather than historic interests). In contrast, the few successful NHPA claims involve circumstances where Native Americans showed that the federal government clearly violated its duty to consult with tribes and clearly acted in bad faith. This history of Native American NHPA litigation, while not encouraging for plaintiffs, does provide helpful lessons of common pitfalls to avoid and should lead to greater success in the future.

Ben Barros

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December 14, 2006 in Land Use, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Price on Property Precedent

Polly J. Price (Emory Law School) has posted A Constitutional Significance for Precedent: Originalism, Stare Decisis and Property Rights on SSRN.  Here's the abstract:

A judge's obligation to consult precedent before deciding a case has been a core feature of the Rule of Law in the United States, whether the relevant source of law at issue is statutory, constitutional, or common law. If there is general agreement that a court's prior precedent has some significance for future decisions, there is virtually none about the extent to which the later court is obligated to defer to the earlier precedent.

This article, written for a symposium dedicated to the topic, "Originalism and Precedent," suggests that conclusions about the founding era's commitment to stare decisis are seriously incomplete without studying the practices of state courts with respect to economic expectation interests. (Other contributors to this symposium include Steve Smith, University of San Diego School of Law, Gary Lawson, Boston University, and Stephen B. Presser, Northwestern University School of Law.) The earliest articulations of the concept of precedent in the United States explicitly link stare decisis to property rules. In the formative era, state court judges invoked the predominant property discourse of vested rights and the Contracts Clause to preserve property rules that they believed necessary to avoid disrupting settled transactions, at least when property reliance interests were at stake. This is important because most civil cases of that period involved property or contract disputes, and these judges tended to view the common law as a mechanism for ordering relations between individuals in terms of property rights. Many judges imposed upon themselves external limits on discretion to change law, and these limits are readily linked to political rhetoric from the founding era emphasizing the sanctity of private property.

This historical understanding of the role of precedent is equivalent to the modern "judicial takings" debate, which asks whether state courts can effectively police their own boundaries with respect to the settled property expectations that legislatures are constitutionally bound to respect. The rhetoric used in the post-founding period through the Civil War suggests many state court judges believed that they should. Many state courts recognized the possibility that changes to common-law rules could deprive citizens of property interests, and sought to guard against it. The rhetoric of courts in the formative era makes clear that the stare decisis property rule had an ideological purpose - a pragmatic concern for economic stability.

Ben Barros

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December 14, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 13, 2006

Kalahari Bushmen win land battle

Bushmen The Guardian is reporting

Bushmen forced out of the Kalahari desert by Botswana's government won a landmark legal victory today as the country's high court ruled they had been illegally removed and should be allowed to return.

The panel of three judges ruled 2-1 in favour of the Bushmen, among Africa's last hunter-gatherers, whose fate has attracted widespread international attention.

Thanks to Carl Christensen for the pointer.

Al Brophy
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December 13, 2006 | Permalink | Comments (1) | TrackBack (0)

8th Circuit Strikes Down Nebraska Family Farm Amendment

Over at How Appealing, Howard Bashman has this report:

Nebraska constitutional amendment prohibiting ownership of Nebraska farm or ranch land by any corporation, domestic or foreign, which is not a Nebraska family farm corporation violates dormant Commerce Clause, unanimous three-judge Eighth Circuit panel holds: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.

Here is a link to an AP story on the decision (also via How Appealing).

Rick Duncan

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December 13, 2006 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 12, 2006

Pocket Part on Sprawl

The current issue of the Yale Law Journal's Pocket Part features in interesting discussion of sprawl centered on Nicole Garnett's essay Save the Cities, Stop the Suburbs?, which reviews recent books by Robert Bruegmann and Joe Kotkin.  Robert Ellickson and Richard Briffault comment.

Ben Barros

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December 12, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Land Acquisition for High-end Residential Development, Done Right

Note to the Mayor of Long Branch, NJ:  Here is how you acquire property to build high-end condos.

Eduardo Penalver

Continue reading

December 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, December 11, 2006

In the News: Justice Scalia vs. Law Profs at Harvard

In a recent Harvard Law Record, there is an interesting story about Justice Scalia's recent visit to Harvard and his jousting with Dean Kagan and Profs. Ackerman and Manning. Here are the relevant excerpts:

1. When Dean Kagan asked Scalia about his support  for a "dead" Constitution, Scalia responded: "I can package it better than that. I call it the enduring Constitution."

2. "Professor Bruce Ackerman, who offered a Wendell Holmes Lecture Series this fall called 'The Living Constitution,' asked Scalia why the justice does not see his task as interpreting the meaning of the words in the Constitution as they are understood today. Scalia again emphasized that ordinary statutes are not reinterpreted as time passes, but that Congress must respond with legislative action to changing times and meanings."

3. Finally, before you ask Scalia a question, take note of his exchange with Prof. John Manning,

who asked Scalia about analysis of open-ended phrases in the Constitution: "How do you know that [such] phrases aren't meant to delegate to the courts the authority to take into account changing morality and sensibilities?"

Scalia, not one to mince words, responded tersely and with his characteristic sense of wry humor, calling Manning "an easy target."

"How do I know? I know because it would be idiotic otherwise," Scalia said. "Do you seriously think the Constitution would have been ratified if it had a clause that said the document would be interpreted by nine different lawyers?"

These are typical questions 1Ls ask about the Constitution. Is it a "living, breathing, evolving" document, or does it have a fixed meaning as originally understood. When a student asks me about the "evolving" Constitution, I usually respond something like this:

Where does a judge applying an "evolving Constitution" look to determine what new species the written constitution has evolved into? DNA testing? Bob Bork says "the truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." Do you agree? Is the "living Constitution" theory really a theory of evolution, or is it more accurately described as a theory of intelligent design?

Do these issues come up in Property? Many of them do in my classes. I am fascinated by the overlap between Constitutional Law and Property, not just in the Takings area, but also with respect to religious land use, race and exclusionary zoning, race-restricting covenants (including those that are racially neutral on their face, but operate to exclude minority residents from restricted communities), speech-restricting covenants (and their enforcement by homeowner's associations), and substantive due process cases like Moore v. City of East Cleveland. When I teach Moore, I turn it into a restrictive covenant case and ask students whether a covenant that defined family in exactly the same way as the City did in Moore could be enforced against Mrs. Moore. Does Shelley apply, for example, to covenants that restrict SDP rights and First Amendment rights?

At Nebraska, Con Law is a 2L course, so I try to bring a little more of it (plus RLUIPA) into my Property class to give the students a little more exposure to public law as part of their first year experience. One of the advantages of teaching Property as a 6-credit, 2-semester course is there is a little more room for exploring some of these very interesting issues.

Rick Duncan

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December 11, 2006 in Teaching | Permalink | Comments (0) | TrackBack (0)

Prairie Dogs and Property Rights

There's a terrific story in today's NY Times about a conflict between some ranchers over a prairie dog colony.  Apparently, a couple of Kansas ranchers want to preserve a prairie dog colony on their property but their neighbors believe this will harm their property values, so they want to invoke a state law that permits the state to exterminate the colony against the property owners' wishes and at the property owners' expense.  This is sort of a latter-day Miller v. Shoene, one of my favorite takings cases.  The prairie dog story is great on a number of levels.  First, I always love stories -- great for teaching purposes -- where the normal sides are reversed in a property-rights dispute.  Here we have environmentalists (according to the story, two environmental groups are backing the pro-prairie dog ranchers) on the property-rights side, where they are usually not to be found. On the other side, we have a bunch of conservative Kansas ranchers, who, I would guess, are usually not great fans of the state telling people what to do with their property.  But here they are, arguing that the state should physically invade private property against the owners' wishes to keep the owner from  maintaining this prairie dog colony and then make him pay the state for its trouble.  (I feel like my head is going to explode.)  The other great part about the story is Larry Haverfield, the rancher who wants to preserve the colony.  He sounds like a reincarnation of Aldo Leopold, especially when he starts talking about all the species that have been (or that he hopes will be) attracted to his farm by the colony.  The story is definitely worth a read.

Eduardo Penalver

December 11, 2006 | Permalink | Comments (1) | TrackBack (0)

Sunday, December 10, 2006

Who owns the DNA of indigenous peoples?

An article in today's New York Times explores issues surrounding a National Geographic Society project to collect DNA from indigenous groups around the world.  One of the project goals is to map prehistoric migration patterns.   Scientists have collected DNA samples from members of indigenous groups in many parts of the world, but a controversy has accompanied collection efforts from Alaskan natives.  Amy Harmon, DNA Gatherers Hit Snag: Tribes Don’t Trust Them, N.Y. Times, Dec. 10, 2006
I recommend the entire article. Here are a few excerpts:

At issue is whether scientists who need DNA from aboriginal populations to fashion a window on the past are underselling the risks to present-day donors. Geographic origin stories told by DNA can clash with long-held beliefs, threatening a world view some indigenous leaders see as vital to preserving their culture.

They argue that genetic ancestry information could also jeopardize land rights and other benefits that are based on the notion that their people have lived in a place since the beginning of time. . . .

The first large effort to collect indigenous DNA since federal financing was withdrawn from a similar proposal amid indigenous opposition in the mid-1990s, the Genographic Project has drawn quiet applause from many geneticists for resurrecting scientific ambitions that have grown more pressing. As indigenous groups intermarry and disperse at an ever-accelerating pace, many scientists believe the chance to capture human history is fast disappearing. . .

In May, project officials held a stormy meeting in New York with the indigenous rights group Cultural Survival while protestors carried signs reading “National Geographic Sucks Indigenous Blood.” Shortly after, the United Nations Permanent Forum on Indigenous Issues recommended suspending the project.

Jim Smith

December 10, 2006 | Permalink | Comments (0) | TrackBack (0)