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Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, April 7, 2007

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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April 7, 2007 | Permalink | Comments (1) | TrackBack (0)

Friday, April 6, 2007

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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April 6, 2007 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

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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April 6, 2007 in Conferences, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, April 5, 2007

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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April 5, 2007 in Land Use | Permalink | Comments (0) | TrackBack (0)

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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April 5, 2007 in Intellectual Property, Personal Property | Permalink | Comments (0) | TrackBack (0)

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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April 5, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (1)

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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April 5, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

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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April 5, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 4, 2007

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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April 4, 2007 in Land Use, Property Theory, Takings | Permalink | Comments (0) | TrackBack (0)

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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April 4, 2007 in Takings | Permalink | Comments (0) | TrackBack (1)

Tuesday, April 3, 2007

Hylton Rankings: US News Without the Clutter, 2007-08 Edition

I'm just back from Gettysburg College--more on the great conference in a few days, as well as some thoughts on monument law inspired by questions I had while wandering around the battlefield. 

Gordon Hylton posted his latest edition of the Hylton rankings in the comments to my quick takes on the US News rankings.  I thought that I'd move them up from the comments.  Also, our friends over at elsblog have these as well.  Dedicated propertyprof readers may recall that I'm a fan of Hylton and the rankings.  I'll have some more thoughts on this shortly, I hope.  As ususal, I think we ought to be supplementing our assessment of schools by looking at law journals (and maybe also secondary journals).  Here's Gordon's report:

THE  2007-08  HYLTON  RANKINGS
of American Law Schools

Introduction: The Hylton Rankings rank American law schools in an order which reflects the way that they are regarded by law school professors and students. The Rankings are named [by propertyprof] for their compiler, Professor J. Gordon Hylton of Marquette University.

The Hylton Rankings are calculated using data presented in the annual rating of law schools published by the U.S. News and World Report. However, while the US News rankings are based on a variety of factors, the Hylton Rankings are based only on the peer assessment ratings provided by law professors and by the mean LSAT scores of each law school. The other US News Report categories are either arbitrary or redundant with the two used in the Hylton Rankings. Grade point average depends on undergraduate institution and major; assessment by lawyers and judges is usually just blind guessing; acceptance rates are a function of the applicant pool and subject to manipulation; employment statistics are a function of the school’s prestige and are affected by local and regional market conditions; and bar passage rates are a function of how rigorously the exam is graded and the composition of the pool of bar takers. In contrast, peer assessment tells us what law professors think about individual law schools, and LSAT scores tell us what students think about the school.

The Hylton Rankings are thus a rating based on institutional prestige and reputation rather than actual educational quality. The Hylton Rankings assume that the quality of legal education provided by ABA-accredited law schools varies very little from institution to institution.

Unlike the US News ratings, the Hylton Rankings list law schools from #1 to #184. This, of course, can be highly misleading, as the difference between one school and the next is always quite small. However, those schools at the top of the list contain a larger percentage of academically talented students and are more highly regarded by law professors than those at the bottom. The top 19 schools have raw scores above 70 (out of a possible 100) while the bottom 23 schools have raw scores between 30 and 40. The raw scores listed next to the names of the school can be used to compute the actual distance between any two schools on the list.

The 2007-08 Rankings:

FIRST QUARTILE Raw Score, 2006 Ranking

1.  Yale    92   2
2.  Harvard  90   1
3.  Columbia  87.5   3
4.  University of Chicago 86.5   5
4.  Stanford  86.5   3
6.  New York University 86   6
7.  Michigan 83   8
7.  Virginia 83   7
9.   Pennsylvania  82   9
10.  California—Berkeley  80 10
10.  Georgetown 80 11
12.  Northwestern 79 12
13.  Cornell 78 14
13.  Duke  78 13
15.  UCLA  75.5 15
16.  Texas 75 15
17.  Southern California 73 17
18.  Vanderbilt  72.5 18
19.  Minnesota         70 19
20.  Washington University 69.5 21
21.  Boston University         68.5 23
21.  George Washington         68.5 20
21.  Notre Dame 68.5 25
21.  Washington & Lee         68.5 21
25.  Emory 68 27
26.  Illinois  67.5 23
27.  Boston College 67 29
27.  Fordham  67 26
29.  California-Davis  66 33
29.  North Carolina  66 27
29.  William & Mary 66 30
32.  Iowa  64.5 30
32.  Wisconsin         64.5 30
34.  California—Hastings  63.5 33
34.  Ohio State 63.5 37
34.  University of Washington         63.5 64
37.  Wake Forest 63 35
38.  Indiana-Bloomington 62.5 37
39.  Arizona 62 39
39.  Colorado 62 42
41.  Brigham Young 61.5 44
41.  Maryland 61.5 47
43.  Tulane 61 39
44.  Yeshiva-Cardozo 60.5 45
45.  Alabama 60 51
45.  Connecticut 60 47
45.  George Mason 60 47
45.  Georgia 60 42

More below the fold.

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April 3, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Monday, April 2, 2007

Sanders on Penn Central and BITs

Anthony B. Sanders (Arnold and Kadjan) has posted Of All Things Made in America Why are We Exporting the Penn Central Test? on SSRN.  Here's the abstract:

Developing countries enter into bilateral investment treaties (BITs) in order to increase foreign direct investment (FDI). Ignoring this straight-forward fact has lead to a great deal of confusion in the assessment of BITs and their protections of regulatory takings. This Article addresses the question of how a BIT should approach regulatory takings with the purpose of increasing FDI in mind. It explores the background of the United States Supreme Court's Penn Central test and the test's incorporation into the post-NAFTA round of U.S. BITs. Then, the Article examines whether an uncertain and flexible test, such as Penn Central, is suitable for a treaty that seeks to provide foreign investors with incentives to invest in developing counties.

The Article argues that Penn Central is not appropriate for BITs because it does not provide a clear rule of law that will induce a foreign investor to send its capital overseas to a developing country. This is partly due to the greater need for clarity in public law than in private law. For this distinction the Article employs the work of F.A. Hayek and "rules of just conduct" verses "rules of organization of government." The Article also addresses criticisms of the incentives BITs provide to foreign investors and to host governments and how those incentives counsel for clear regulatory takings rules. The Article is up front in admitting that BITs may not actually succeed in increasing FDI, as the empirical evidence on the question is mixed. However, if they do, then BITs with clear regulatory takings standards will be more successful than those with vague standards, such as Penn Central. Drafters of BITs can still take into account other objectives such as environmental protection, but should do so with clear rules of law so foreign investors can plan their investments accordingly.

Ben Barros

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April 2, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Byrne and Diamond on Affordable Housing, Land Tenure, and Urban Policy

J. Peter Byrne and Michael Diamond (both of Georgetown) have posted Affordable Housing, Land Tenure, and Urban Policy: The Matrix Revealed on SSRN.  Here's the abstract:

Under current law, most new affordable housing is constructed by private entities employing a variety of federal, state, and local subsidies. Developers and residents must choose which among various, sometimes conflicting goals their project will emphasize. In this paper, the authors analyze the differing goals subsidized housing projects can serve, the trade offs that different goals may present, and the means to achieve goals and minimize conflicts. Goals identified include the provision of physically decent housing, building residents' wealth, social integration in the larger community, urban vitality, training, social engagement, institution building, and efficient use of public funds. The authors also examine leading federal and state housing programs, including traditional public housing, Section 8, the Low Income Housing Tax Credit, and inclusionary zoning to identify how they promote or frustrate achievement of these goals.

Ben Barros

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April 2, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Byrne on Due Process After Lingle

J. Peter Byrne (Georgetown University Law Center) has posted Due Process Land Use Claims After Lingle on SSRN.  Here's the abstract:

The Supreme Court held in Lingle v. Chevron U.S.A., Inc., 125 S. Ct. 2074 (2005), that challenges to the validity of land use regulations for failing to advance governmental interests must be brought under the Due Process Clause, rather than the Takings Clause, and must be evaluated under a deferential standard. In this paper, Professor Byrne analyzes and evaluates the probable course of such judicial review. He concludes that federal courts will resist due process review of land use decisions for good reasons but not always with an adequate doctrinal explanation. He recognizes, however, a role for state courts using due process to provide state level supervision of local land use decisions in the absence of other legislative or administrative checks on local discretion. He argues that such judicial review should focus on decisions reflecting distortions in the local political process.

Ben Barros

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April 2, 2007 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (1)