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Thursday, June 21, 2007

Indigenous Ownership of Lands and Culture

Many law students in their first year property course learn in Buchanan v. Warley that states are prohibited from restricting the alienation of lands on the basis of race, color or national origin.

Two laws in the U.S. territories challenge this fundamental principle inherent in the right to own property. Specifically, in American Samoa and the Commonwealth of the Northern Mariana Islands (CNMI), ownership of land and the ability to lease land for more than 55 years are contingent on whether a person has the requisite amount of indigenous “blood.” The American Samoan Code prohibits the alienation of “any lands except freehold lands to any person who has less than one-half native blood.” (More than 90 percent of lands in American Samoa are communally owned and the rest are either freehold lands or individually owned). The CNMI Constitution provides that only those persons who are at least of “one-quarter Northern Marianas” descent may acquire property. (The CNMI has a private property regime.)

Are these laws constitutional? Many would be surprised to know that both laws have prevailed against equal protection challenges. As I discuss below and in a subsequent post, one of the rationales that the courts used to justify the constitutionality of these laws is what they saw as the role that indigenous land ownership played in preserving the indigenous cultures in those territories.

Rose Cuison Villazor

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June 21, 2007 in Land Use, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Silbaugh on Urban Planning, Housing Design, and Work-Family Balance

Katharine Baird Silbaugh (Boston University) has posted Women's Place: Urban Planning, Housing Design, and Work-Family Balance on SSRN.  Here's the abstract:

In the past decade a substantial literature has emerged analyzing the role of work-family conflict in hampering women's economic, social, and civil equality. Many of the issues we routinely discuss as work family balance problems have distinct spatial dimensions. 'Place' is by no means the main factor in work-family balance difficulties, but amongst work-family policy-makers it is perhaps the least appreciated. This article examines the role of urban planning and housing design in frustrating the effective balance of work and family responsibilities. Nothing in the literature on work-family balance reform addresses this aspect of the problem. That literature focuses instead on employer mandates and family law reforms. This article fills the gap by evaluating the effect of 'place' on work-family balance and the role law plays in creating our challenging geography. I argue that effective work-family balance requires attention to the spatial dimensions of the work-family conflict.

Ben Barros

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June 21, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 20, 2007

Philip Johnson's Glass House at New Canaan

Much talk recently at the New York Times and the Wall Street Journal about the impending opening--tomorrow--of Philip Johnson's Glass House in New Canaan, Connecticut.  As the New York Times wrote on June 7, the opening will give paying visitors access to "one of the world's most celebrated works of Modernism for the first time since its completion in 1949."

While my interests have changed much since I was a college student (I used to think "The Graduate" was a good movie, for instance), I've maintained a twenty-three year love affair with that home.

Here's a link to the National Trust for Historic Preservation's website on the house, which the Trust reports was given in 1986 as a life estate and then, apparently, the remainder was donated to the Trust via Johnson's will.

Endnote: The image appears through a link to the Business Week website, which has a story about the house.  I couldn't find a public domain image, so I linked to Business Week's image.

Alfred L. Brophy

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June 20, 2007 | Permalink | Comments (0) | TrackBack (0)

Sitting Bull's Gravesite

Sittingbullloc While I've been away, much has happened--including the New York Times story last week on the conflict between family cemeteries and housing development in Georgia and a story about Sitting Bull's grave, which some want to turn into a commercial area.

Erin McClam's very fine story for the Associated Press begins in this way:

Drive from the town of Mobridge west across the Missouri River, clatter four miles down a winding path, and you find it — a modest monument on a lush green bluff.

This simplicity is striking because of the complex history of what lies beneath: The remains of Sitting Bull, the Sioux chief said to have foretold the defeat of Lt. Col. George Custer at the Battle of Little Bighorn in 1876.

It is more striking because of the state of extreme disrepair that befell the resting place of one of the best-known American Indians for half a century, until just two years ago.

It was shot and spat at. On the surrounding grounds bonfires burned and shattered beer bottles glittered. Someone tied a rope around the feather rising from the head of the bust, rigged it to a truck and broke it off.

The site is on what is called fee land, within the boundaries of the Standing Rock Sioux tribe but privately owned, and two years ago two men paid $55,000 for it and began cleaning it up.

They have plans for a $12 million monument complex they hope will honor Sitting Bull’s memory with the dignity missing for so long, and let new generations learn about him.

           These plans have torn open a wound over who will control the great chief’s legacy.

Read the rest of the story here.

Endnotes: The image of Sitting Bull is from our friends at the Library Congress.  And while I was looking for suitable pictures, I came across Phil Konstantin's website with a bunch of pictures of memorials and gravesites

Alfred L. Brophy
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June 20, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 19, 2007

Property, Indigeneity and Immigration

Thanks to Ben and Al for inviting me to guest-blog here. As Ben mentioned, I am an assistant professor of law at Southern Methodist University (SMU) in Dallas, Texas. I just finished my first year of teaching property and immigration law. My research interests include, among other things, indigenous peoples' property rights and the intersection between property and immigration. I look forward to blogging about property laws in exotic places such as American Samoa and the Commonwealth of the Northern Mariana Islands. In these two U.S. territories, for example, only indigenous peoples who have the requisite amount of blood quantum may own property or lease land for more than 55 years. I examine the complex questions of indigeneity, culture, property rights and constitutional issues that these land alienation restriction laws raise in a forthcoming piece entitled, "Exploring the Meaning of Blood Quantum Laws." (I will post the paper on SSRN soon.)

I will also be blogging about not-so-exotic places like Farmers Branch, Texas and Hazleton, Pennsylvania, which have been entangled in lawsuits because of their recently enacted ordinances available here and here that prohibit undocumented immigrants from renting property.

Thanks again for the invitation.

Rose Cuison Villazor
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June 19, 2007 in Land Use, Recent Cases, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Guest Blogger: Rose Villazor

I'm delighted that Rose Villazor (SMU) will be visiting with us here at PropertyProf.  Rose is working on two very interesting articles, both of which will be presented at Law and Society in Berlin:  "Blood Quantum Laws: Racial Discrimination or Act of Self-Determination?" (forthcoming Cal. L. Rev. 2008) and "Deconstructing Local Anti-Undocumented Immigrant Property Ordinances."

Welcome Rose!

Ben Barros

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June 19, 2007 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Property at Law and Society in Berlin

I've gone through the preliminary program for the upcoming Law and Society Conference in Berlin and picked out as many property-related presentations as I could find.  The list is below the fold.  There's a lot going on, and I'm sure I've missed some things.  To make the list manageable, I've omitted panels that are focused only on intellectual property.  Please let me know by leaving a comment or sending me an e-mail if I've missed anything or made any errors in the listing.

Unfortunately, it looks as though several of the property panels conflict with each other, especially on Thursday morning and Saturday afternoon.  I'll be presenting a paper called Group Size and Heterogeneity in the Design of Legal Structures (abstract below) in the Property Rights: Structures of Property panel on Friday morning.

Ben Barros

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June 19, 2007 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 18, 2007

Cemeteries and Development

Thanks to Carl Christensen for this story from the New York Times , "New Homes Confront Old Burial Grounds."  The article begins:

DAC ENTERPRISES, a small, mostly residential developer in Georgia, bought about 118 acres in Hall County, just south of the city of Lula, with the idea of selling lots to builders to put up single-family houses. The transaction, which was completed in 2004, seemed routine for the fast-growing exurb, 50 miles northeast of Atlanta.

But it turned out that the developer was in for a surprise — one that he says cost him about $40,000. In one patch of the land, hiding beneath bushes and trees, was a cemetery — 22 graves dating to the mid-19th century, including one for Neverson Cook, a veteran of the War of 1812. Only two were marked with inscribed stones.

“We did not know it was on the property when we bought it,” said Ray W. Gunnin Sr., the president of DAC.

His company hired an archaeologist to determine the number of graves there and the precise boundaries of the cemetery. Mr. Gunnin said the cemetery was cleaned up and a chain-link fence erected — not a legal requirement, but out of respect for the dead. “We didn’t want people riding bicycles and things like that across the cemetery,” he said.

He estimated his company had spent more than $5,000 to define and fence off the graves, which are now neighbors of around 70 new homes — and said he lost $35,000 because he could not sell the cemetery space, which is on a “nice little knoll that would have been a choice building lot.”

Of course, the neighboring lots may sell for more (because they're further from the neighbors).

Yet another example of the importance of cemetery law.

Alfred L. Brophy

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June 18, 2007 | Permalink | Comments (0) | TrackBack (0)

NY Times on Virtual Gold Farming

Those of you interested in virtual property and the economies of MMOGs should check out an article from yesterday's NY Times Magazine on Chinese gold farms -- companies that accumulate virtual property and sell it for real-world money.  The article also mentions a class-action lawsuit filed by players of one MMOG against retailers of virtual property.

Ben Barros

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June 18, 2007 in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Eggert on Mortgage Servicers

Kurt Eggert (Chapman) has posted Limiting Abuse and Opportunism By Mortgage Servicers on SSRN.  Here's the abstract:

This article discusses the opportunistic and abusive behavior of some servicers of residential mortgages toward the borrowers whose loans they service. Such abuse includes claiming that borrowers are in default and attempting to foreclose even when payments are current, force-placing insurance even when borrowers already have a policy, and mishandling escrow funds.

The causes of such practices and the market forces that can rein them in are discussed. A case study of one mortgage servicer describes its unfair treatment of borrowers and the reforms imposed by federal regulators and other market participants. Both regulatory agencies and rating agencies appear to have increased their scrutiny of servicers' behavior, and states have passed new legislation to limit abuse. This article concludes with a discussion of proposals for further reform should these steps prove inadequate.

Ben Barros

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June 18, 2007 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Lazarus on Environmental Law After Katrina

Richard Lazarus (Georgetown) has posted Environmental Law After Katrina: Reforming Environmental Law by Reforming Environmental Lawmaking on SSRN.  Here's the abstract:

Hurricane Katrina's overriding lesson for environmental law is no less than our environmental lawmaking institutions require fundamental reformation. Otherwise, the nation's tragic failure not only to enact laws that anticipate the obvious risks presented to the Gulf Region by hurricanes, but perversely to increase those risks by destroying the ecosystem's natural protections, will inevitably be repeated with even more devastating results.

Ben Barros

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June 18, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)