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Univ. of Kentucky College of Law

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Friday, March 30, 2007

Colburn on Public Lands and Ecology

Jamison E. Colburn (Western New England College School of Law) has posted Habitat and Humanity: Public Lands Law in the Age of Ecology on SSRN.  Here's the abstract:

Public lands law in this country has been gridlocked for more than a decade at the intersection of democracy and ecology. The public is still made to believe that the "conservation" versus "preservation" of our discrete, bounded parcels of public land is the central issue and that political success is defined by the capturing of a parcel of public land and its being put under the preferred legal regime. Experts and activists have largely seen past that definition of success and have adopted open-textured notions of ecosystem- and adaptive management on which everyone agrees in the abstract but not in application. Nevertheless, public confidence in administrative agencies is very much contingent upon confidence in professional expertise, even as agency governance grows increasingly incompatible with any truly ecosystemic approach to public lands. Indeed, while active management and ecological restoration are superior frames of reference for most public lands today, the only way these can even possibly frame the conservation agenda will be from the bottom up. Thus, I argue that public land management agencies are facing a dilemma if they hope to respond both to ecological reality and democratic accountability in our pluralist society. This dilemma is presented most immediately in their many legal duties to generate formal, comprehensive plans for the lands they administer by which they must protect biodiversity at the same time they serve a diverse public according to the terms of almost a dozen very different enabling statutes. The dilemma is that land health is increasingly incompatible with democracy, at least so long as our democracy views the administrative agency as the solution to its problems.

Ben Barros

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March 30, 2007 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 29, 2007

Lee on Teaching the Amistad

Brant T. Lee (University of Akron) has posted Teaching the Amistad on SSRN.  Here's the abstract:

This brief essay discusses the use of a slavery case, the Amistad, in teaching a first-year Property Law course. It argues that teaching about slavery in the first year of law school not only emphasizes the significance of race issues in American legal history, but also helps students to connect broader philosophical ideas to the rules at hand. The essay reviews the facts underlying the Amistad case, including reference to the movie about the case and to intellectual property issues that arose in the making of the movie. The essay then traces the deployment in the Amistad case of the standard property themes of possession and title. The essay closes with suggestions about how to connect the discussion of the Amistad to broader themes in property law.

Ben Barros

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March 29, 2007 in Recent Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 28, 2007

US News 2008 Rankings: Quick Takes

As everyone from Dave Hoffman to Brian Leiter to, well, everyone is observing, the new “2008" U.S. News rankings and ratings of law schools have appeared on the magazine’s website a few days earlier than promised. Assuming that the reported results are final, not just preliminary or phony to compete with the many fallacious predictions about rankings posted on the Internet, here’s a look at the previous and current reputational assessments by academics and by lawyers and judges, broken down by tier.

Ratings by Faculty (Peer) and Lawyers and Judges in the 2007 and 2008 U.S. News Surveys
            Peer           Lawyers & Judges
        --------------           ----------------------    Effect size
Tier     N    Mean     SD        Mean     SD
                2007
  1    100    3.04    0.76        3.34    0.60
  3      36    2.06    0.18        2.58    0.31
  4      44    1.66    0.22        2.12    0.37
Total 180   2.51    0.85        2.89    0.73        0.48
                 2008
  1    104    2.99    0.73        3.36    0.63
  3      35    2.03    0.17        2.51    0.31
  4      45    1.64    0.23        2.02    0.35
Total 184   2.48    0.82        2.87    0.78        0.49

Ratings for Tier 1, classifying the top 50 schools as Tier 1 and other Tier-1 schools as Tier 2
            Peer           Lawyers & Judges
        --------------           ----------------------
Tier     N    Mean     SD        Mean     SD
                2007
  1    50    3.63    0.65        3.80    0.52
  2    50    2.46    0.24        2.88    0.20
                2008
Tier     N    Mean     SD        Mean     SD
  1    50    3.58    0.62        3.87    0.52
  2    54    2.44    0.22        2.89    0.24

I apologize for the misalignment of the tables--I've given up trying  to get the html coding right. Here they are in prettier, pdf format.  (Note to self--never again work on html tables.) 

My brief take on the tables:

Average 2007 and 2008 assessments are very similar. Lawyers and judges give more favorable ratings than academics. Assessments are clearly related to school tier, with average ratings of schools decreasing as tier increases. Variability of the ratings is greater for the more highly ranked schools.

I looked at differences between the 2007 and 2008 ratings of individual schools. The difference for average peer assessments was never greater than 0.2 on the 5-point scale.  A difference that large occurred for only two schools; in both cases it was a decrease. Tulane’s peer assessment changed from 3.2 to 3.0, and Golden Gate’s changed from 1.7 to 1.5. Forty-five schools had a decrease of 0.1, and 30 had an increase of the same size.

Assessments of lawyer and judges changed more.  Here is a list of schools with positive (2008 rating more favorable than 2007 rating) and negative changes of 0.3 or larger. 

After I get back from Gettysburg College, where I'll be talking about Reparations Pro and Con, I hope to have some more thoughts on the relationship between law review citations (which I use as a proxy of law review quality) and peer assessment scores.  Some of my previous thoughts on this topic are available here and some longitudinal data is here.

Al Brophy
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March 28, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Garnett on the Burbs

Nicole Stelle Garnett (Notre Dame Law School) has posted Suburbs as Exit, Suburbs as Entrance on SSRN.  Here's the abstract:

Most academics assume that suburbanites are “exiters” who have abandoned central cities. The exit story is a foundational one in the fields of land use and local government law: Exiters' historical, social, and economic connections with “their” center cities are frequently used to justify both growth controls and regional government. The exit story, however, no longer captures the American suburban experience. For a majority of Americans, suburbs have become points of entrance to, not of exit from, “urban” life. Most suburbanites are “enterers” - people who were born in, or migrated directly to, suburbs and who have not spent time living in any central city. This Essay situates the underappreciated suburbs as entrance story within the current debates about growth management and regional governance. The exit paradigm provides a powerful normative justification for these policies. When it is stripped away, proponents are left with utilitarian arguments that are challenged by economists who argue that metropolitan fragmentation is efficiencyenhancing and that may ring hollow with suburban enterers. This Essay seeks to sound a cautionary note in the growth management and regional government debates. The exit story is an outdated rhetorical flourish that tends to oversimplify the case for - and camouflage the complexities of - these policies, especially the distributional and transitionalfairness concerns raised by restricting suburban growth.

Ben Barros

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March 28, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Somin on Post-Kelo Reform

Ilya Somin (George Mason) has posted The Limits of Backlash: Assessing the Political Response to Kelo on SSRN.  Here's the abstract:

The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of “economic development,” generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted or considered post-Kelo reform legislation to curb eminent domain. This Article is the first comprehensive analysis of the legislative response to Kelo. It challenges the validity of claims that the political backlash to Kelo will provide the same sort of protection for property owners as would a judicial ban on economic development takings. Most of the newly enacted post-Kelo reform laws are likely to be ineffective.

Part I describes the Kelo decision and then documents widespread anger that it generated. Both state-level and national surveys show overwhelming public opposition to “economic development” takings – opposition that cuts across racial, gender, political, and socioeconomic divisions. The backlash against Kelo is the largest against any Supreme Court decision in decades, and the legislative response is possibly the most extensive to any Supreme Court decision in history.

Part II analyzes the state and federal political response to Kelo. Twenty-eight state legislatures have enacted post-Kelo reform laws. However, seventeen of these are largely symbolic in nature, providing little or no protection for property owners. Several of the remainder either have significant loopholes or were enacted by states that had little or no history of condemning property for economic development. Only six states that had previously engaged in significant numbers of economic development and blight condemnations have enacted post-Kelo legislative reforms with any real teeth. The major exceptions to the pattern of ineffective post-Kelo reforms are the ten states that recently enacted reforms by popular referendum. Strikingly, citizen-initiated referendum initiatives have led to the passage of much stronger laws than those enacted through referenda initiated by state legislatures.

Finally, Part III advances a tentative explanation for the pattern of ineffective post-Kelo reform, in spite of overwhelming public sentiment in favor of such legislation. I contend that the ineffectiveness of post-Kelo reform is largely due to widespread political ignorance. The political ignorance hypothesis is imperfect. However, it accounts for three otherwise baffling anomalies: the sudden emergence of the backlash after Kelo, in spite of the fact that the decision made little change in existing precedent; the passage of ineffective laws by both state and federal legislators; and the fact that that post-Kelo laws enacted by popular referendum tended to be much stronger than those enacted by state legislatures.

Ben Barros

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March 28, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2007

Merrill and Smith's new casebook

Merrillproperty Friday's mail brought Thomas Merrill and Henry E Smith's exciting new property casebook, Property: Principles and Policies, which Foundation has just published.  Pretty interesting organization of the course and it's sure to be a great resource.

From the book's website:

The book presents the subject through vivid cases, including most of those beloved by generations of property teachers. But in contrast to other casebooks, which present property as a hodge-podge of issues, it seeks to organize the material in an integrated way, starting with the idea of property as the right to exclude and systematically developing elaborations, exceptions, and counterfoils to this idea. Issues of contemporary relevance such as intellectual property and regulatory takings are given relatively pervasive and expansive treatment. The emphasis throughout is on fundamental principles and policy questions.

Here's a link to their table of contents.

Alfred L. Brophy

March 27, 2007 in Teaching | Permalink | Comments (1) | TrackBack (0)

Monday, March 26, 2007

Times on Real Estate Transactions

Yesterday's NY Times has a great article on real estate transactions involving as-yet-unbuilt properties.  An excerpt:

IN New York’s construction boom of the last few years, many people have been buying apartments in buildings before they actually rise out of the ground. The buyers can’t see them, smell them or touch them. When they finally do, they are sometimes in for very big surprises, some of them infuriating.

Rooms are often smaller than advertised. The Viking stove isn’t there, but a stove described as being of “similar quality” is. The view is not at all what the buyers imagined.

Were they deceived?

Not necessarily. In many cases, neither they nor their lawyers read the offering plan carefully. Buyers often must hand over a $200 deposit for the thrill of getting three days to review the plan, sometimes 500 pages or more. It includes floor plans; tables that provide square footage, estimated taxes and common charges; and detailed descriptions of construction materials and apartment finishes. But it is also filled with technical and legal language that would be indecipherable to anyone other than a real estate lawyer.

Consider this piece of boilerplate: “The gross square footage of a unit is greater than the approximate square footage of a unit measured by using the legal definition of the unit. ... As is customary in New York City, these gross square footages exceed the usable floor area of each unit.”

That’s a long and strange way of saying that the apartments will probably be smaller than the buyers have been told. Brokers and lawyers say that virtually every new development’s offering plan includes this type of disclaimer, but finding it can often be a challenge.

Ben Barros

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March 26, 2007 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Sunday, March 25, 2007

Thomas Jefferson and Tadeuz Kosciuszko: Of Revolutions, Slavery, A Pension and A Will

Thaddeus_kosciuszko A paper co-authored by one of our country's leading historians, UCLA professor Gary Nash, recently arrived in my in-box.  Because it talks about Revolutionary war hero Tadeuz Kosciuszko's pension and the will Jefferson wrote for him to use his pension to free enslaved people, I thought that I would post about.  It is a stunning paper.  Those interested in the intersection of property, wills, and slavery simply must read it.

The paper, “Thomas Jefferson and Tadeuz Kosciuszko: Slavery and Freedom, Honor and Betrayal”, is by Gary Nash and Graham Russell Hodges of Colgate University.  They delivered it to the McNeil Center for Early American Studies at the University of Pennsylvania on March 23.  Here is their abstract:

Thaddeus Kosciuszko’s return to the United States in 1797 initiates the narrative we present in this paper. Although crippled by deep wounds, Kosciuszko returned in triumph to reside in Philadelphia as a revolutionary hero. Americans applauded him for his leadership  in Poland’s vain uprising from 1792-1794. Americans cherished him in the hearts and memories that linked his glory during the American Revolution with their anxieties over the conservative policies of President John Adams. Kosciuszko had more than adulation in mind; he intended to collect some $12,000 plus interest in overdue pay from the American Revolution. The American Congress, aware of his enormous popular appeal, quickly voted to allot the back pay, which, with interest rose to over $15,000.

Kosciuszko remained in Philadelphia, where he befriended Vice President Thomas Jefferson. The pair talked of Poland, France, liberty and slavery long into the night on numerous occasions in the winter of 1797-1798. International anxieties promoted secret actions. Kosciuszko was worried about the newly passed Alien and Sedition Acts and wanted to travel to Paris to gather support for the revitalization of Poland. Jefferson was distraught over the possibility of war between the United States and France and asked Kosciuszko to act as a covert ambassador.

What to do with Kosciuszko’s pension? He gave Jefferson power of attorney; the two men drafted an extraordinary will that gave the American Patriot the power to use the cash to purchase, manumit, educate and give land and cattle to as many enslaved people as could be afforded. Jefferson even had the right to “buy” his own enslaved people and free them. It was a solemn pact between two noble men.

Our narrative then jumps two decades to the time of Kosciuszko’s death in late 1817 and Jefferson’s realization that his promise was now due.  We then discuss at length Jefferson’s decision to relinquish executorship of the estate, now worth in excess of $20,000. Nonetheless, we view Jefferson’s eventual decision to shed his oath of honor to Kosciuszko as a betrayal of a promise rich in potential to shift American attitudes about slavery, While Jefferson’s attitudes about black potentials for American citizenship have long been considered, we consider his inaction in this affair of honor deeply troubling for a man deemed America’s greatest symbol of liberty.

Close followers of wills law may be familiar with a later part of the story.  A suit over the probate of the will reached the Supreme Court in the 1830s,  Armstrong v. Lear, 33 U.S. 52 (1834)

The will of May 5, 1798 is as follows:

I, Thaddeus Kosciuszko, being just on my departure from America, do hereby declare and direct that, should I make no other testamentary disposition of my property in the United States, I hereby authorize my friend Thomas Jefferson to employ the whole thereof in purchasing negroes from among his own or any others, and giving them liberty in my name; in giving them an education in trades, or otherwise, and in having them instructed for their new condition in the duties of morality, which may make them good neighbours, good fathers or moders, husbands or wives, and in their duties as citizens, teaching them to be defenders of their liberty and country, and of the good order of society, and in whatsoever may take them happy and useful. And I make the said Thomas Jefferson my executor of this.

T. KOSCIUSZKO. 5th day of May 1798

And a codicil of 1806 is as follows:

Know all men by these presents, that I, Thade Kosciuszko, formerly an officer of the United States of America in their revolutionary war against Great Britain, and a native of Lilourui, in Poland, at present residing at Paris, do hereby will and direct, that, at my decease, the sum of three thousand seven hundred and four dollars, currency of the aforesaid United States, shall of right be possessed by, and delivered over to the full enjoyment and use of Kosciuszko Armstrong, the son of general John Armstrong, minister plenipotentiary of the said States at Paris. For the security and performance whereof, I do hereby instruct and authorize my only lawful executor in the said United States, Thomas Jefferson, president thereof, to reserve in trust for that special purpose, of the funds he already holds belonging to me, the aforesaid sum of three thousand seven hundred and four dollars, in principal; to be paid by him, the said Thomas Jefferson, immediately after my decease, to him, the aforesaid Kosciuszko Armstrong; and in case of his death, to the use and benefit of his surviving brothers.

The image of Kosciuszko is from our friends at wikipedia.

Alfred L. Brophy
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March 25, 2007 in Recent Scholarship | Permalink | Comments (2) | TrackBack (0)