PropertyProf Blog

What to do with monuments in Iraq?

We talk about monument law every now and then here at propertyprof.  And, believe me, there's a lot left to be said on the law of Civil War monuments.  Sunday's New York Times brings this article on the debate over what to do with monuments in Iraq.  Here's an excerpt:

There may be no starker reminder of Saddam Hussein’s tyrannical rule than the potent symbols he left behind: scores of hubristic statues, murals, frescoes and other monuments he built all over Iraq to commemorate himself. While many were destroyed in the cathartic celebration and mob violence that followed the invasion, many others still remain, serving as a constant echo of Mr. Hussein’s all-consuming authority and setting off the same range of emotions, from swollen Baath pride to desperate fear, that he inspired while he was alive.

Now the nation is trying to figure out whether to save these objects as memorials to history or wipe them out. The debate goes to the core of a wounded nation’s effort to redefine itself and reconcile with its painful past. In recent weeks, the matter has crystallized around Iraq’s most famous landmark, the Victory Arch, two sets of gargantuan crossed swords held by giant fists modeled after Mr. Hussein’s. The government had begun to tear it down, but an influential lobby, including the American Embassy, has blocked the dismantling for the time being. . . .

The monuments committee wants to save one of the Victory Arch’s four swords and melt the other three for new monuments, according to Mr. Tamimi, who envisions a Baghdad full of sculptures honoring dancers, poets, artists, the “kings of ancient civilization” and even the first American soldier killed in the Iraq War. . . .

“The removal process of this committee,” Mr. Tamimi said, “is itself a form of rebuilding.”

As I said last summer in the context of discussion of a discussion of whether to rename Penny Lane, moves to rename (or remove monuments) face a host of issues, including whether by removing names, we forget the lessons of the past. The decision whether to keep monuments to the past in Iraq is a tough one, for sure.  As I've commented in another context, the same monument may mean very different things to different people.

Al Brophy
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Carpenter on Management of Sacred Sites

Kristen A. Carpenter (University of Denver) has posted The Interests of "Peoples" in the Cooperative Management of Sacred Sites on SSRN.  Here's the abstract:

This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government to recognize their interests and battling one another in the process.

To foster a more cooperative approach to sacred sites management, it may help to transcend the model of absolute federal control with various groups left fighting over the crumbs of accommodation. Instead, federal land management should recognize the concerns of groups on all sides of sacred sites disputes, make those concerns an explicit part of legal analysis, and develop models to recognize the various interests at stake. It will be immensely challenging to reform the management of sacred sites in these ways, and this essay aims only to offer some preliminary thoughts on the topic.

In particular, this essay argues for analysis of sacred sites problems through the language of “peoples” and “peoplehood.” A people is often defined as a body of persons united by a common culture, tradition, politics, or kinship. And peoplehood means the sense or state of belonging to a people. The concept of peoplehood thus helps to explain and validate why human beings group themselves in certain ways and why certain things may be important to them. In the sacred sites context, peoplehood has at least two important ramifications: it can expand the discussion beyond the power of the federal government to include the interests of subnational groups, and it can inspire those groups to recognize and accept one another's interests. Thus, considering the interests of peoples might lay the groundwork for an attitude of cooperation at sacred sites.

Ben Barros

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Takings Conference at FSU

Florida State's College of Law will host a conference titled "Takings: The Uses and Abuses of Eminent Domain and Land Use Regulation" on April 20-21, 2007.  Dan Markel has the details at PrawfsBlawg.

Ben Barros

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Homeless Sex Offenders

We've discussed restrictions on sex offender residency several times (e.g, here and here).  CNN has a story on Florida sex offenders living under a bridge because many local municipalities have enacted zoning ordinances that make it hard for sex offenders to find anyplace to live:

Five men -- all registered sex offenders convicted of abusing children -- live along the causeway because there is a housing shortage for Miami's least welcome residents.

"I got nowhere I can go!" says sex offender Rene Matamoros, who lives with his dog on the shore where Biscayne Bay meets the causeway.

The Florida Department of Corrections says there are fewer and fewer places in Miami-Dade County where sex offenders can live because the county has some of the strongest restrictions against this kind of criminal in the country.

Florida's solution: house the convicted felons under a bridge that forms one part of the causeway.

The Julia Tuttle Causeway, which links Miami to Miami Beach, offers no running water, no electricity and little protection from nasty weather. It's not an ideal solution, Department of Corrections Officials told CNN, but at least the state knows where the sex offenders are.

Nearly every day a state probation officer makes a predawn visit to the causeway. Those visits are part of the terms of the offenders' probation which mandates that they occupy a residence from 10 p.m. to 6 a.m.

But what if a sex offender can't find a place to live?

That is increasingly the case, say state officials, after several Florida cities enacted laws that prohibit convicted sexual offenders from living within 2,500 feet of schools, parks and other places where children might gather.

Bruce Grant of the Florida Department of Corrections said the laws have not only kept sex offenders away from children but forced several to live on the street.

"Because of those restrictions, because there are many places that children congregate, because of 2,500 feet, that's almost half a mile, that's a pretty long way when you are talking about an urban area like Miami, so it isn't surprising that we say we are trying but we don't have a place for these people to live in," Grant said.

Ben Barros

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Property Students in Second Life

At Terra Nova, Rachel Goda has an interesting post on sending first year property students into Second Life to see how property concepts are reflected in the virtual world.  Hat tip:  David Post at the VC.

Ben Barros

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Oswald on Public Uses and Non-Uses

Lynda J. Oswald (University of Michigan - Stephen M. Ross School of Business) has posted Public Uses and Non-Uses: Sinister Schemes, Improper Motives, and Bad Faith in Eminent Domain Law on SSRN.  Here's the abstract:

In this manuscript, I address the largely unexplored issue of whether a sovereign may use its power of eminent domain not to pursue an affirmative public use, but rather to prevent an undesired private use (such as a landfill, rehabilitation facility, or other NIMBY-triggering use) from going forward. I argue that although sovereigns tend to dissemble in these “non-use” cases based upon an underlying assumption by condemnors and courts alike that non-use takings are not constitutionally permitted, their analysis is in fact, incorrect. It is not the non-use condemnations themselves that are problematic, but the subterfuge that condemnors typically use in pursuing such takings. The resulting lack of transparency in governmental action subverts the political process and weakens private property rights protection.

Ben Barros

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Baron on Kelo and Lingle

Jane Baron (Temple University School of Law) has posted Winding Toward the Heart of the Takings Muddle: Kelo, Lingle, and Public Discourse About Private Property on SSRN.  Here's the abstract:

People care about property. In 2005, the United States Supreme Court decided two cases with deep connections to that concern, Kelo v. City of New London and Lingle v. Chevron U.S.A. Inc. This symposium Article argues that the significance of Kelo and of Lingle lies less in what these two cases actually decided than in the extent to which the cases engage, or fail to engage, cultural debates over the function of property in contemporary society. As is developed in Part I, the widely-publicized facts of Kelo raised emotionally and politically charged issues implicating the state's role as a guardian of private property rights. Notwithstanding its controversial political implications, however, Kelo turned out to be a fairly easy legal case from a technical standpoint for, in the majority's view, two hundred years of precedent established law unfavorable to the plaintiffs' claims. By focusing on this law and failing to address directly citizens' expectations about the extent to which the Constitution should protect property rights, the Court evaded involvement in ongoing public dialogue about property and government. For this, it will not be soon forgiven.

Part II argues that the Court was far more effective in Lingle than it was in Kelo in engaging directly with public unease about the relationship between government and private property. Lingle returned takings law to its central question, that of the distribution of the burdens of regulatory interventions. By suggesting that sometimes landowners might be disproportionately burdened by otherwise lawful regulation, the Court acknowledged that takings cases send a message about who matters - and whose property matters - when the government seeks to promote what it regards as the public good. In returning takings jurisprudence to its heart in “fairness and justice,” without attempting to set forth a definitive “test” for determining what is fair and just, the Court left open the possibility of a conversation between it and the public about what the Takings Clause will mean in the future. Since the public cares about property, this is an important conversation to enable.

Part III describes the implications of Kelo and Lingle. In likely further litigation testing the scope of local governmental power over property uses, courts will need to confront squarely one influential public understanding of property rights, an understanding that envisions property as a domain of freedom - freedom to act as owners choose, freedom from regulations limiting owners' liberty to so act. While academics have challenged this vision for some time, there is no doubting its rhetorical power or political popularity. What happens next in the takings arena will depend a great deal on the success with which both courts and local legislative bodies engage this understanding of the role of property in American constitutional culture.

Ben Barros

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More on Columbia's Use of Eminent Domain to Expand

Ilya Somin has a post at the VC giving an update on Columbia University's threat to use eminent domain to expand into the Manhattanville neighborhood of Harlem.

Ben Barros

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More on the China Holdout

A few weeks ago, I noted an interesting holdout story from China.  The NY Times has an update on the story - the holdouts ended up being bought out by the developer.

Ben Barros

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Property Profs Wanted for S.Ct. Amicus Brief

Adam Mossoff (Michigan State University College of Law) is organizing an amicus brief asking the Supreme Court to take the Zoltek case on cert.  Some prominent folks (Eugene Volokh, Richard Epstein, Eric Claeys) and a random guy (me) are joining.  Here's the text of a letter from Adam seeking additional profs to join the brief:

I'm writing a law professors’ amicus brief supporting a cert petition in a takings case involving a patent.  The brief is being filed on behalf of professors who teach and write in the fields of intellectual property law, property law, and constitutional law, and thus I’m looking to see if any readers of the PropertyProf blog would like to join the brief. 

The case is Zoltek v. U.S., in which the Federal Circuit held that patents are not "private property" under the Takings Clause of the Fifth Amendment.  See Zoltek v. U.S., 442 F.3d 1345 (Fed. Cir. 2006), rehearing en banc denied, 464 F.3d 1335 (2006).   This is one of the first explicit rulings on the relationship between patents and the Takings Clause in over one hundred years.  For obvious reasons, patent scholars are very interested in this case, and it's even received some coverage in the blogosphere, see, e.g., http://www.patentlyo.com/patent/2006/09/zoltek_patent_t.html.  Zoltek's cert petition does an excellent job reviewing the relevant modern statutes and cases, and addressing the policy implications of the Federal Circuit's decision. http://www.scotusblog.com/movabletype/archives/Zoltek.pdf

My brief complements Zoltek's cert petition by identifying the substantial nineteenth-century case law in the Supreme Court and in many lower federal courts that consistently held that patents were secured under the Takings Clause.  To give a little background on this brief, it is adapted from my forthcoming article in the Boston University Law Review, "Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause."  This article evolved from my research over the past several years into nineteenth-century patent jurisprudence, in which I discovered many takings cases.  I was surprised to learn that these cases have been eclipsed in the twentieth century, although none of them have been directly overruled or limited in any way.  Significantly, scholars in intellectual property and patent law have missed these historical cases, and thus they repeatedly state in their articles that courts have never protected patents under the Takings Clause.  So it was unsurprising that the Zoltek court similarly relied on this mistaken historical claim to justify its decision denying constitutional protection of patents under the Takings Clause.  Even the dissenting judge in Zoltek wrongly stated that no federal court has ever held that patents are secured under the Takings Clause as constitutional "private property."  As my brief makes clear, this is a profoundly mistaken historical claim.

The Zoltek decision is very important for several reasons.  First, the Federal Circuit has sole jurisdiction to hear all patent appeals, and thus there cannot be any circuit split in patent law of the sort that typically demands Supreme Court intervention.  At a minimum, my brief reveals that the Zoltek decision conflicts with substantial historical case law in the Supreme Court and other federal courts that is directly on point -- raising the question, which of these opposing court decisions is the law?  Accordingly, the Zoltek decision has created the equivalent of a de facto circuit split that only the Supreme Court can now resolve.  Second, the Supreme Court has repeatedly held in many of its patent law decisions over the past 10 years that nineteenth-century patent law is determinative in defining the nature and scope of patent rights today, e.g., Warner-Jenkinson, Festo, and eBay.  In fact, in all of these decisions, the Supreme Court has reversed (and sometimes scolded) the Federal Circuit for ignoring this long-standing, historical jurisprudence, and it seems that Zoltek is simply just another example of this pattern of behavior by the Federal Circuit.  Third, and perhaps most important, the Supreme Court should resolve this conflict, because patents are increasingly important business assets in today's society.  The uncertainty about the scope of legal protection afforded to patents cannot bode well for the constitutional injunction that American patent law should "promote the progress of the useful arts."  Although this last issue is beyond the purview of my amicus brief, I believe that Zoltek's cert petition does a nice job in reviewing some of the negative policy implications of the Federal Circuit's decision.

If any readers feel comfortable speaking on the constitutional issue in the Zoltek case and are interested in joining the brief, please contact me and I'll send you a draft so that you can confirm whether you want to join or not.  Please feel free to email me, and I'll send you the current draft.

The deadline is the end of April, but I will need a complete list of the professors joining the brief before the Solicitor General will grant its consent for me to file it.  (I have already received consent from Zoltek's counsel to file the brief.)  Thus, I would ask that anyone who is interested in joining the brief to let me know no later than April 15.  More important, if anyone has any comments or constructive criticism after reading the draft brief, I would be forever in your debt.

Best Regards,

Adam Mossoff
Associate Professor of Law
Michigan State University College of Law
417 Law College Building
East Lansing, MI  48824-1300
(517) 432-6962

Ben Barros

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