Friday, January 12, 2007

Carpenter on Sacred Sites on the Western Landscape

I'm looking forward to reading Kristen Carpenter's (University of Denver) Old Ground and New Directions at Sacred Sites on the Western Landscape.  Here is her abstract:

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.

Propertyprofs might also enjoy Professor Carpenter's A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Non-Owners.

Alfred L. Brophy

January 12, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Stambovsky v. Ackley

I'm teaching real estate transactions in my Property II class, and today we covered Stambovsky v. Ackley, the famous haunted house case.  I have to say that despite its fun facts, I don't find the case very useful.  Sure, its discussion of caveat emptor is okay, but there are a lot of better cases out there on that point.  Am I missing something?

Ben Barros

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January 12, 2007 in Teaching | Permalink | Comments (6) | TrackBack (0)

Thursday, January 11, 2007

Sale of Art: Thomas Eakins' Gross Clinic

Eakinsthegrossclinic The New York Times has an excellent article on the sale of Thomas Eakins' Gross Clinic by the Thomas Jefferson University Medical School.  It has important implications about a non-profit's duties to raise money and the public's interest in its local treasures.  Here's a flavor of the article:

In art, as in love, you don’t always know what you’ve got until it has one foot out the door. Thomas Eakins’s “Gross Clinic,” as great as any American painting of the 19th century, was about to leave Philadelphia but will now stay in the city that has always been home to it.

Alice L. Walton, the Wal-Mart heiress, and the National Gallery of Art in Washington wanted jointly to buy it for $68 million from Thomas Jefferson University, one of this city’s medical schools. But the Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts, offered a chance to match the price, promised just before Christmas that they could come up with the money after a fund-raising campaign stirred civic juices, angered Jefferson alumni who disapproved of the sale and inspired hundreds of donors, big and small, to send checks.

I'm working on a post on another Pennsylvania treasure--the Hershey Chocolate Company--and the Hershey Trust, which was at the center of another controversy over public and private rights in 2002. 

The image of the Gross Clinic is courtesy of our friends at wikipedia.  Reminds me of a terrific seminar I took with Dr. James C. Davis in college, lo those many years ago (1984).  Perhaps my interest in art history is traceable to his lecture on Eakins.  I remember it to this day....

Alfred L. Brophy
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January 11, 2007 | Permalink | Comments (0) | TrackBack (0)

Safrin on How Property Begets Property

Sabrina Safrin (Rutgers - Newark) has posted Chain Reaction: How Property Begets Property on SSRN.  Here's the abstract:

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society's movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today's global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another.

The article offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and tangible goods from open access or commons property to exclusive ownership regimes. The chain reaction theory of the evolution of intellectual and other property rights has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes.

Ben Barros

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January 11, 2007 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Kelly on Urban Communities and Eminent Domain

We've spoken already about James Kelly's Urban Communities, Eminent Domain, and the Socioeconomics of Just Compensation.  It's now out in the St. John's Law Review.  Check it out.

Here's the abstract:

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of “public use” and “just compensation” as limitations on eminent domain. In the context of urban redevelopment, the theory supports greater resident autonomy in the compulsory assembly of residential land to subsidize and induce private economic development. The article’s second part articulates two legislative reforms that protect residents from unjustified, irreparable harm without depriving urban redevelopment of eminent domain’s essential efficacy in coordinating investment.

Specifically, homeowners should not be subject to eminent domain pursuant to a redevelopment plan until the majority of them have approved the plan. To further solidify resident ownership of redevelopment, the right to continued residency in the community should be protected by amending relocation laws to guarantee an alienable entitlement to be offered replacement housing in the redeveloped district area. Together, these two legislative reforms express a more nuanced balance of property and liability rules that will facilitate a more productive interface between community residents and redevelopment officials.

Alfred L. Brophy

January 11, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Eagle on Takings and Due Process

Steven J. Eagle (George Mason School of Law) has posted Property Tests, Due Process Tests and Regulatory Takings Jurisprudence on SSRN.  Here's the abstract:

The United States Supreme Court recently clarified in Lingle v. Chevron U.S.A., Inc. that its often-expressed “substantially advance” formulation sounds in due process, and thus should be rejected as an appropriate takings test. The Court also explained that due process provides an independent and legitimate basis for attacking government deprivations of private property. Paradoxically, Lingle also reaffirmed as the Court's principal takings test the ad hoc, multifactor formulation in Penn Central Transportation Co. v. City of New York.

The Article asserts that Penn Central itself is a due process test. Building upon Lingle, as the Court did not, the Article outlines separate and independent takings and due property tests. The proffered due process test is based on the need for meaningful scrutiny. The suggested takings test applies property law concepts in determining whether government arrogated private property to itself, and thus must compensate. Most particularly, the Article advocates the “commercial unit” as a necessarily objec-tive measure of what constitutes a relevant interest for takings analysis.

As regular readers know, this is an issue near and dear to my heart.  Eagle is a very perceptive commentator on takings issues, so this is definitely worth the read.

Ben Barros

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January 11, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 10, 2007

Tate on Incentive Trusts

Joshua C. Tate (SMU - Dedman School of Law) has posted Conditional Love: Incentive Trusts and the Inflexibility Problem on SSRN.  Here's the abstract:

This Article examines the contemporary phenomenon of incentive trusts: trusts that use money to encourage or discourage certain behaviors. Using evidence from Internet websites, practitioner articles, and newspaper articles, the Article considers the likely provisions that a typical incentive trust might have, and explains how such trusts might lead to a problem of inflexibility when they are not drafted so as to take into account the possibility of changed circumstances. The Article also examines current law regarding trust modification and termination as well as recent reform proposals, and suggests some alternatives that might better take into account the particular characteristics of incentive trusts.

Ben Barros

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January 10, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Daniel Hamilton's The Limits of Sovereignty

Hamilton We're spoken about Daniel Hamilton's The Limits of Sovereignty already.  I'm delighted to say that it's now out from the University of Chicago Press.  Here's the Press' description:

Americans take for granted that government does not have the right to permanently seize private property without just compensation. Yet for much of American history, such a view constituted the weaker side of an ongoing argument about government sovereignty and individual rights. What brought about this drastic shift in legal and political thought?

Daniel W. Hamilton locates that change in the crucible of the Civil War. In the early days of the war, Congress passed the First and Second Confiscation Acts, authorizing the Union to seize private property in the rebellious states of the Confederacy, and the Confederate Congress responded with the broader Sequestration Act. The competing acts fueled a fierce, sustained debate among legislators and lawyers about the principles underlying alternative ideas of private property and state power, a debate which by 1870 was increasingly dominated by today’s view of more limited government power.

Through its exploration of this little-studied consequence of the debates over confiscation during the Civil War, The Limits of Sovereignty will be essential to an understanding of the place of private property in American law and legal history.

The cover art is beautiful too.  In this case, you should judge a book by its cover.  I love fences as illustrations for property talk.

Propertyprofs may also enjoy Charles W.J. Withers' Placing the Enlightenment: Thinking Geographically About the Age of Reason, which is forthcoming in June from the University of Chicago Press.  I hope to comment some on it when it appears.

Alfred L. Brophy

January 10, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 9, 2007

Lewinsohn-Zamir on Redistribution Through Private Law

Daphna Lewinsohn-Zamir (Hebrew University) has posted In Defense of Redistribution Through Private Law on SSRN.  Here's the abstract:

An ongoing debate has centered on whether redistribution should be attained solely through taxes and transfer payments, or also via the private law. The most powerful argument against redistribution through private law is grounded on economic considerations. Accordingly, legal rules are more costly and less effective at redistributing welfare than the tax-and-transfer alternative.

This Article offers a general and principled defense of redistribution through private law rules. The economic argument against such rules is based on a simplistic consequentialist theory; one that confines welfare promotion to the satisfaction of people's actual preferences, and disregards the positive or negative effects of the method which generated the redistributive outcome. The Article develops a more plausible consequentialist theory, which adopts an objective approach to welfare, and considers the impact of redistribution methods on the goodness of the resulting outcomes. Through the lens of the alternative theory, private law rules fare very well and enjoy advantages that taxes and transfer payments lack. Indeed, reallocation of a smaller quantity of goods through private law advances well-being to a greater extent than the same (or even larger) amount generated via taxes and transfer payments. This conclusion is supported by behavioral studies as well.

The Article demonstrates the greater desirability of redistributive private law rules in a few contexts, including Landlord and Tenant Law and Family Property. It also illustrates the advantages of private law in comparison to “intermediate” schemes, in which only one side of the redistribution (the taking or the giving) is executed through legal rules, while the other is attained via taxes or monetary transfers: the voucher system and rules of compensation for property takings.

Ben Barros

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January 9, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Clauretie, Kuhn, and Schwer on Value of Properties Taken By Eminent Domain

Terrence M. Clauretie, William Kuhn, and R. Keith Schwer (UNLV) have posted Residential Properties Taken Under Eminent Domain: Do Government Appraisers Track Market Values?  Here's the abstract:

Local governments often use powers of eminent domain to take residential properties for public use. In such cases, the local government will use their appraisers to calculate an offer on the property. If the government's goal is to avoid costly (use of administrative resources) litigation it may have an incentive to over-appraise the properties. Such over-valuation would transfer the cost to taxpayers. This study compares the appraised value of sixty properties taken through eminent domain in Clark County, Nevada to comparable properties sold in free market transactions. The findings indicate a 17% over-appraisal of the properties taken by eminent domain. The findings also indicate that a government may use simple rules for appraising the properties, whereas the market employs more complex rules.

Ben Barros

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January 9, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Baker, Sirmans, and Miceli on Mortgage Redemption Laws

Matthew J. Baker (U.S. Naval Academy), C.F. Sirmans (University of Connecticut) and Thomas J. Miceli (University of Connecticut) have posted An Economic Theory of Mortgage Redemption Laws on SSRN.  Here's the abstract:

Redemption laws give mortgagors the right to redeem their property following default for a statutorily set period of time. This paper develops a theory that explains these laws as a means of protecting landowners against the loss of non-transferable values associated with their land. A longer redemption period reduces the risk that this value will be lost but also increases the likelihood of default. The optimal redemption period balances these effects. Empirical analysis of cross-state data from the early twentieth century suggests that these factors, in combination with political considerations, explain the existence and length of redemption laws.

Ben Barros

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January 9, 2007 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

'Tis the season . . .

to post articles on SSRN in advance of the upcoming Feb/March window.  Lots of cool stuff has been posted in the last week or so.  I'll be putting up a bunch of links and abstracts over the next couple of days.

I'm also looking forward to reading the Wendel and Popovich article mentioned by Al in his last post -- I remember filling out the survey last year, and have been looking forward to the results.

Ben Barros

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January 9, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

The State of the Property Course: Wendel and Popovich

Peter Wendel and Robert Popovich's important and fascinating article, "The State of the Property Course: A Statistical Analysis" has just appeared in the June 2006 issue of the Journal of Legal Education.  I highly recommend it.  Lots to talk about here in terms of what's being taught, broken down by race and gender of the professor, by hours assigned to class, and by schools' rank and their philosophy.    There's also talk about teaching methodology and examination styles.  There are some real differences.  For instance, only half of the top schools teach deeds in the introductory property course, but nearly 90% of the fourth tier schools do.  This one ought to stir some thinking among teachers and casebook authors.

The survey and aggregate results through a link available at at Professor Wendel's home page, though right now the Pepperdine website doesn't seem to be working.

Alfred L. Brophy
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January 9, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Times on Penthouse Apartments

Today's NY Times has an interesting article on the market for penthouse and other super-high-end apartments in New York.  I miss a lot of things about living in New York, but the real estate market isn't one of them.

Ben Barros

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January 9, 2007 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

More on Didden

Ilya Somin at the VC has a post on Didden v. Port Chester, which is up on a cert petition to the Supreme Court.  I also discussed Didden in a previous post.

Ben Barros

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January 9, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Monday, January 8, 2007

New Property Theory Syllabus

I had a great time at AALS, and it was a lot of fun meeting so many readers of this blog.  Thanks for coming by!

Last year, I posted the syllabus for my property theory seminar.  Below the fold, I've posted the my property theory syllabus from last semester, which varies quite a bit from the first one.

Ben Barros

Continue reading

January 8, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Monument Law and Policy

Harpers_ferry_fire_house_john_brown Just back from the AALS.  Learned a lot, including a new word, which Peggy McGuinness of opinio-juris taught me: blogatical.  I'm thinking about extending the one I've been on.

But in the interim, I did want to mention about a monument that I saw over break: the Hayward Shepherd ("Faithful Negro") monument at Harpers Ferry.  Just so happens that I was describing what I do to one of my hosts on the West Virginia trip.  One person expresssed amazement that I'm working on the legal status of monuments or that there would be anything to say about them.  (I've learned over the years to just describe my work as teaching real estate law--anything else gets a strange reaction for the average person.  But this time I departed from my usual rule.)  Then, not two hours later, we happened to see the monument--and later to have a discussion about the controversy over monuments on the Antietam battlefield as well! 

It's a granite monument placed there in the 1930s by the United Daughters of the Confederacy, which commemorates a free African American man, Hayward Shepherd, who was the first victim of John Brown's raid at Harpers Ferry.  The monument has been the subject of controversy since before it was placed there and continues to be controversial to this day.  Ah, the law and politics of monuments.

Also, I've been meaning to mention a few not-so-recent articles on property and cemetery law issues.

Now here's a casenote!  Property: Intrusion into Graveyard, 23 Michigan Law Review, 423-424 (1925) (noting Frost v. Columbia Clay Co., 124 S.E. 767 (S.C. 1924)).  How could this have escaped my reading for so long?!

And now this.... from our friends at E-online, Spielberg Saving Private Property.  This is probably worth a separate post at some point.  It's got all the makin's of a great example for property class.

As well as Catherine Gunther Kodat's Saving Private Property: Steven Spielberg's American Dream Works 71 Representations 77-105 (Summer, 2000), on Spielberg's use of memorials in Saving Private Ryan.

The scene of Harpers Ferry is from our friends at wikipedia.  It's also available from the Harpers Ferry National Park website.

Alfred L. Brophy
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January 8, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Priest on Creating an American Property Law: Alienability and Its Limits in American History

I'm excited to see Claire Priest's important article, Creating An American Property Law;  Alienability and Its Limits in American History, in the December 2006 Harvard Law Review.  Here is Priest's abstract:

This article analyzes an issue central to the economic and political development of the early United States: laws protecting real property from the claims of creditors. Traditional English law, protecting inheritance, shielded a debtor's land from the reach of creditors in two respects. An individual's freehold interest in land was exempted from the claims of unsecured creditors both during life and in inheritance proceedings. In addition, even when land had been explicitly pledged as collateral in mortgage agreements, chancery court procedures imposed substantial costs on creditors using legal process to seize the land. American property law, however, emerged in the context of colonialism and the dynamics of the Atlantic economy. In 1732, to advance the economic interests of English merchants, Parliament enacted a sweeping statute, the Act for the More Easy Recovery of Debts in His Majesty's Plantations and Colonies in America, which required that real property, houses, and slaves be treated as legally equivalent to chattel property for the purpose of satisfying debts in all of the British colonies in America and the West Indies. This statute substantially dismantled the legal framework of the English inheritance system by giving unsecured creditors priority to a deceased�s land over heirs. The Act also required that the courts hold auctions to sell both slaves and real property to satisfy debts in most colonies. More broadly, this legal transformation likely led to greater commodification of real property, the expansion of slavery, and more capital for economic development. American landholders, however, were subjected to greater financial risk than would have been the case in the absence of the Act.

The full text is available from the Harvard Law Review website.  I hope to have a few thoughts on it later in the semester.

December 2006 was a great month for the history of property.  Dedicated propertyprof readers will recall that Rachel Godsil's terrific article on early twentieth century race nuisance cases appeared in the Michigan Law Review in December.  In fact, 2006 was a great year for the legal history of property, given Susanna Blumenthal's wills article, which also appeared in Harvard in 2006.

Alfred L. Brophy
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January 8, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, January 7, 2007

Hotels vs. Burials—Shoreline Development in Hawaii

Hawaii’s latest controversy over resort development involves a plan to build up to five new hotels at  Turtle Bay, on Oahu’s North Shore. According to this article in Sunday’s Honolulu Advertiser, Kuilima Corporation hopes to proceed under a master plan approved twenty years ago, but is running into resistance from the State Historic Preservation Division because of the subsequent discovery of Native Hawaiian burials on the property.  Hawaii  law (principally Chapter 6E, Hawaii Revised Statutes) provides significant protection to burials and archaeological sites, and the laws have been strengthened since Kuilima obtained its land use permits.  A separate challenge to the project based on the age of the permits and alleged changes in conditions since their approval has as yet been unsuccessful.

Coastal sand dunes, viewed by some as highly desirable sites for resort development, were viewed as ideal burial sites by Native Hawaiians, a circumstance that helps to make the issue of coastal development vs. preservation of burials, archaeological sites, and customary and traditional practices the subject of repeated controversy in Hawaii.  These matters generally reach the courts in the context of battles over land use permits, e.g., Public Access Shoreline Hawaii v. Hawaii County Planning Comm'n, 903 P.2d 1246 (Hawaii 1995), and Ka Pa'akai O Ka'aina v. Land Use Comm'n, 7 P.3d 1060 (Hawaii 2000), but Hawaii's Intermediate Court of Appeals has also been called upon to rule (in two cases involving the same seller!) that a seller's failure to disclose the known presence of archaeological sites on a property will allow the buyer to set the sale aside for failure to convey marketable title.  Southwest Slopes, Inc. v. Lum, 918 P.2d 1157 (Hawaii App. 1996), Create 21 Chuo, Inc. v. Southwest Slopes, Inc., 918 P.2d 1168 Hawaii App. 1996).

Carl Christensen
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January 7, 2007 | Permalink | Comments (2) | TrackBack (0)