PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, June 29, 2007

Teaching Tips: Of Songs and Poems

This post has been sitting on my computer for a year and, inspired by Rose's post on property songs, I thought I'd blow the dust off it and put it up.

I've been corresponding with one of my favorite former students, who's going to start her teaching career this fall.  So I've been thinking a little more than usual about teaching methods.  Plus, some of our friends over at prawfsblawg are advising new profs against preparing for weeks the summer before teaching for the first time.  Before following that (or any) suggestions, I'd recommend thinking about the following advice from James Gordon's riotously funny article "How Not to Succeed in Law School"  from the Yale Law Journal: "If you want to know what kind of people law professors are, ask yourselfthis question: 'what kind of person would give up a jillion dollar salary to drive a rusted-out Ford Pinto and wear suits made of old horse blankets?'  Think about this very carefully before asking your professor's opinion on any subject." (100 YLJ 1679, 1668 (1991)).  More recently at prawfs, Joseph Slater's been criticizing law schools for not doing enough to encourage good teaching.  Joe has some very useful suggestions on how to improve teaching.

Time will tell for sure just how important teaching vs. research turns out to be in the next decade.   I think the consumer culture is coming to universities in a big way.  One sign of this is that tenure committees (particularly at the university level) are increasingly looking at student satisfaction with teaching.  And for those who have taught, good teaching evaluations are critical in the lateral movement game.  So, obviously, is good scholarship.  In fact, standards for both teaching and scholarship are rising.  Tenure is become substantially more difficult to obtain; universities are looking very closely before making a contract that will bind them for the next twenty-five to thirty-five years.  As an aside, quality is increasingly being measured by citations and publication outlets, rather than based on a close reading of the relevant scholarship, I fear.  Citations are an important (though by no means the only) measure of the quality of legal scholarship, of law reviews and perhaps of the quality of schools publishing those reviews.  But now I'm getting rather far afield.

Property professors generally think that teaching's pretty dern' important.  Perhaps that's because our field is notoriously difficult. I'm not sure.  I'd like to suggest a couple of tips.  Obviously, knowledge of the substantive law is essential.  And once you have that down, there are some other pretty basic things to keep in mind (in my opinion).  Try to have a few basic points you want to make in each class; keep those points in mind as you structure the class and as you talk with students.  A good class is a good conversation, where you explore some ideas, treat difficult concepts in a systematic fashion, and come to some increased understanding.  New faculty often focus unduly on facts of cases; the cases are there to help structure the discussion and give some jumping-off points for further exploration of legal rules, of how those rules arose and are applied, of how we should counsel clients when faced with similar situations, of how we can avoid future litigation.  Working through problems are great ways of exploring the nuances of rules.  I always look closely at the quality of problems in picking casebooks.  There are a couple of problem-centered property casebooks, which I've been tempted to use over the years.  Then at the end of class, I think it's helpful to recap the key principles.  What's the old advice?  Tell people what you're going to tell them, tell them, and then tell them what you've told them?  Good law teaching doesn't so much involve telling students as talking with students--but students can really benefit from some sign-posting along the way to help them structure what often appears to be "stream of consciousness" discussions.  (I think a good property class should have some meta-themes, which we're spoken about some in the past; but each class meeting should also have some discrete, smaller themes.  I find I ask myself as I'm preparing for class: how does what we're going to talk about fit into the overall structure of the course.  And what are the key ideas and rules students need to know from this particular class.  Clarity of thinking, like charity, begins with the individual teacher.)

And bear in mind that it's hard to sit for seventy-five (or even fifty) minutes and maintain your concentration.  Every once in a while it's a good idea to sit in the (usually uncomfortable) chairs our students use in the classrooms and think about what that experience is like.  [Maybe you teach at Stanford, where they have really comfy chairs for students.  Heck, the ones in this room  are much, much nicer than the one I have at my office.  But for the rest of us, remember how uncomfortable our students are and try to do things to help them stay focused and engaged.]

One cue we can take from the trial practice teachers is the importance of re-triggering jurors' (or in this case students') attention.  Try to break the class into segments; make it possible for students who've "checked out" to check back into class.  That is, even if you lose the attention of students, have convenient places where they can return to the conversation of the class.  This relates to the material in the previous paragraph--keep sign posting and relating each segment of the class to the overall points for the day.

A Few Concrete Pieces of Advice

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June 29, 2007 in Teaching | Permalink | Comments (0) | TrackBack (1)

Jones on Landowner's Duty

James T.R. Jones (Brandeis School of Law) has posted Kentucky Addresses a Landowner's Duty to Those Off the Premises: The Saga of Falling Trees on SSRN. Here's the abstract:

At common law, landowners had no duty to protect those off their premises from harm caused by natural vegetation on their land. Courts feared that without this rule a landowner might be ruined merely for leaving property in a state of nature. Gradually, some jurisdictions moved away from this position. The California Supreme Court completely abolished the old natural condition exemption from landowner liability. Other states took a more moderate approach, and upheld the traditional doctrine in cases of rural land while viewing trees alongside urban roadways differently. Kentucky had not addressed the subject until a recent case where a large dead tree on an urban lot fell onto an adjacent landowner's garage. The Kentucky Court of Appeals held that a landowner in an urban or heavily populated area has a duty to others outside of his or her land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises. The Kentucky Supreme Court has granted discretionary review of this decision, so Kentucky's position on the off premises liability issue is ripe for final decision. The abstracted article suggests that at minimum Kentucky should hold urban landowners responsible for harm trees on their property cause when they fall off their land. The article concludes Kentucky should adopt the rule of the California Supreme Court that landowners always have a duty to protect those off their premises against natural conditions on their land.

Ben Barros

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June 29, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 28, 2007

Hawaiian Graves and Development Rights

400pxkakaakoaerial Both the Honolulu Advertiser and the Star Bulletin are reporting on Hawaii's State Historic Preservation Division's recommendation to General Growth Properties, the developers of the $100 million Kakaako retail and housing complex, that the development alter plans so as to preserve about 30 sets of Native Hawaiian remains (Iwi).  This is a classic case of the conflict between preservation of a cemetery and sacred site and development.  Nina Wu's excellent article in the Star Bulletin points out the competing interests at stake:

Although General Growth has asked the division to consider the economic impact of a redesign, [Division administrator Melanie] Chinen wrote that the state concluded "the facts which require greater consideration for preservation in place far outweigh the reasons presented by the applicant to relocate."

If the structure proposed for the burial ground is relocated or redesigned, Chinen said, the burials could be left in place without exposing them to harm.

"We believe this action would bring a culturally appropriate closure to this issue and provides General Growth Properties the opportunity to publicly demonstrate its good will towards native Hawaiian cultural values," said the letter. "Furthermore, it would relieve General Growth of the need to construct a separate burial preserve for these remains."

There's also a lawsuit pending on this.  As Wu reports,

Paulette Ka'anohi Kaleikini, one of the cultural descendants and plaintiff in a suit against General Growth filed by the Native Hawaiian Legal Corp., said yesterday she was happy with the division's recommendation.

"All these rules were put in place so that these kupuna could be protected," said Kaleikini, "and by following all the laws to protect and preserve the kupuna, I think she [Chinen] followed what was already in place. By preserving it in place, it protects the integrity of my ohana."

Thanks to University of Hawaii property professor Carl Christensen for bringing this to our attention.  The public domain picture of the Kakaako section of Oahu is from our friends at wikipedia.

UPDATE: Yet more iwi have been found at the site and there is informed speculation that there are perhaps hundreds more left to be found, according to the Star Bulletin's July 7 story, "Diggers Find Burial Pit."

Alfred L. Brophy
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June 28, 2007 | Permalink | Comments (1) | TrackBack (1)

Jones on Anna Nicole and Disposition of the Dead

James T.R. Jones (Brandeis School of Law) has posted Anna Nicole Smith and the Right to Control Disposition of the Dead on SSRN.  Here's the abstract:

The death of Anna Nicole Smith has highlighted an ancient legal issue--who decides the place and method of disposal of the bodies of the dead. From antiquity, the law was ordinarily careful to honor the written or oral directions of the deceased. If a decedent did not express a preference, then burial was determined by the surviving spouse, and if there were none by the next of kin. In the Smith case, a dispute arose between her mother and the guardian of her infant daughter over where she would be buried. A Florida court ultimately effectively ignored their arguments and chose the place where Smith clearly orally had said she wanted to be buried. The abstracted article concluded that Kentucky would reach a like result, as there the express wishes of the decedent, testamentary or otherwise, control disposition of a body. Attorneys should encourage their clients to state, preferably in writing but at least orally, their choice for burial arrangements.

Ben Barros

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

Malani on Valuing Laws

Anup Malani (University of Chicago Law School) has posted Valuing Laws as Local Amenities on SSRN.  Here's the abstract:

The conventional approach to evaluating a law is to examine its effect on proximate behavior. To evaluate a new criminal law, for example, the conventional approach would look to changes in the crime rate. This paper argues instead that laws should be judged by the extent to which they raise housing prices and lower wages. The logic is that the value of a law, much like the value of a lake or a public school, is capitalized into local housing and labor markets. Desirable laws increase housing prices and decrease wages because more people want to live in the relevant jurisdiction; undesirable laws have the opposite effects. Evaluating laws in the manner has several advantages over the conventional approach. First, it employs a more direct proxy for utility. Second, it accounts for all the effects of a law, including hard-to-measure outcomes, unintended consequences, and enforcement costs. Third, it permits direct comparison of different types of laws, which is important in instances where law-makers have limited resources to invest in law-making. Lastly, it sheds light on the distributional consequences of a law. In particular, it makes clear that a significant portion of every law's benefits are reallocated through housing and labor markets to property owners.

Ben Barros

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June 28, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 27, 2007

Singing as A Pedagogical Tool?

With the onset of the AALS New Law Teachers Workshop this week, I thought I would take this time to take a break from writing about scholarship and blog about teaching.  But this post won't focus on questions such as which case should be the first case covered in property or which case book one should choose

Rather, we can take a (quick) break from our research and writing to talk about interesting and unique pedagogical ways of teaching property.  Singing, for example, has long been known by child educators as an effective teaching tool.  Of course, our law students are no longer children but surely, some of you might agree that singing poses a distinctive and perhaps effective way of teaching a case? 

I have to confess that I (yes, a first year law professor) sang to my students when I was teaching future interests.  My students at SMU told me later that I helped decrease the stress (a little bit anyway) of learning life estates.  When I taught Kelo v. City of New London, I circulated the words to the "Kelo Song," which was written by a student member of the Harvard Law School Federalist Society. 

So how many of you sing songs to your students?  From conversations I've had with some of you at last year's AALS Annual Conference, I know that several of you do.  Any other songs (or poetry) you want to share?  Do you have other creative ways of teaching property?

Rose Cuison Villazor

June 27, 2007 in Teaching | Permalink | Comments (4) | TrackBack (1)

More on Wilkie v. Robbins

On the subject of Nestor's post immediately below, Jonathan Adler at the VC notes that the most pro-property rights opinion in Wilkie was Justice Ginsburg's dissent.  Also at the VC, Ilya Somin has a skeptical analysis of the Court's reasoning.

Ben Barros

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June 27, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 26, 2007

Retaliation and the Takings Clause

The Supreme Court yesterday decided Wilkie v. Robbins, a case that involved assertions that officials of the Bureau of Land Management had harassed and intimidated the owner of a Wyoming guest ranch in order to extract an easement that had been lost by the BLM's failure to record prior to a transfer of ownership.  In an opinion by Justice Souter for a 7-2 majority, the Court held that the landowner had neither a private right of action under Bivens v. Six Unknown Federal Narcotics Agents nor a claim under RICO.

One interesting aspect of the case is the contrast between Justice Souter and Justice Ginsburg in a partial dissent (joined by Justice Stevens) in their evaluation of the owner's argument that the BLM had retaliated against him for "standing on his right as a property owner to keep the Government out" of his property (because the government was, he asserted, trying to force him to grant an easement without compensation).  Justice Souter rejects the argument in part with the proposition that, unlike other instances of retaliation the Court had recognized, "trying to induce someone to grant an easement for public use is a perfectly legitimate purpose."  To the majority the acts of the officials in this instance amount to "hard bargaining."  In the course of discussing qualified immunity, Justice Ginsburg asserts, by contrast, that the Takings Clause "surely" contemplates "the right to refuse to submit to a taking where no compensation is in the offing."  Justice Ginsburg offers a cf. to Dolan and Nollan, raising an intriguing link to exactions. 

Rejecting a Bivens claim does not say much about other avenues of relief (and the Court makes clear that the owner had recourse to a variety of administrative and judicial remedies), but the Court does in fairly broad terms question the concept of relief for retaliation based on the assertion of rights under the Takings Clause.

Nestor Davidson

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June 26, 2007 in Land Use, Recent Cases, Takings | Permalink | Comments (0) | TrackBack (1)

Overby on Mortgage Foreclosure in New Orleans

A. Brooke Overby (Tulane) has posted Mortgage Foreclosure in Post-Katrina New Orleans on SSRN.  Here's the abstract:

Hurricane Katrina, the largest disaster in the history of the United States, caused widespread property destruction throughout the Gulf Coast, but particularly in the city of New Orleans. Although the storm created an environment which facilitated increased mortgage defaults in the area, the Article analyzes data from the Orleans Parish Recorder of Mortgages Office and from the Orleans Parish Civil District Court and concludes that foreclosure filing rates in the year after Katrina in fact decreased significantly from the rates for the corresponding period in the year prior to the storm. This result is contrary to what would normally be expected in a usual mortgage lending market, where an increase in the rate of mortgage default would lead to an increase in the rate of foreclosure.

The Article evaluates in detail the legal and market responses to mortgage default after the storm that contributed to the reduction in foreclosure actions in Orleans Parish in the year after Katrina. Secondary mortgage market initiatives provided the principal means for mortgage relief, because Louisiana debtors received little in the way of formal legal relief. Even though secondary market responses were successful in protecting mortgage debtors after Katrina, their limitations in scope make them inadequate to address the years of financial distress that might likely follow any disaster of the magnitude of Katrina. Thus, while the Katrina experience demonstrates that secondary market interventions can effectively reduce debtor distress after a major disaster, such interventions should not been seen as a substitute for more traditional legal responses to address mortgage debtor distress after disasters or other economic crises.

Ben Barros

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June 26, 2007 in New Orleans, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

van Erp on European Property Law

Sjef J.H.M. van Erp (University of Maastricht) has posted European and National Property Law: Osmosis or Growing Antagonism? on SSRN. Here's the abstract:

One of the pillars of the economic constitution of the European Union is what might be called freedom of property. Article 17 of the Charter of Fundamental Rights of the European Union and the corresponding article II-77 of the Treaty establishing a Constitution for Europe therefore declare that everyone has the right to own, use, dispose and bequeth his or her lawfully acquired possessions. It is, however, not really very clear what is meant by property and property rights in a private law sense. How can property rights or, to put it differently, rights against the world be defined at a European level? In the area of property law a search for common policies, principles, concepts and rules is badly needed. In this lecture a research map is drawn in which problem areas are presented as well as some suggestions are made as to where this search could lead to, taking the work on the Ius Commune Casebook Property Law as a starting-point. In this casebook an analysis will be made of the property laws of various Member-States to see which similarities and dissimilarities exist. To give but one example: the concept of ownership seems, at first sight, to be a typically civil law concept, whereas the trust with its fragmented ownership seems to be a typically common law concept. However, the common law freehold estate comes for all practical purposes very close to civilian ownership. At the same time civil law systems are more and more willing to accept trust relationships, with as a result a division between management and entitlement to benefits without however abandoning their traditionally unitary concept of ownership. This example, as well as other examples, show that under the surface of the differing rules, European property law systems share several leading policies and principles, although existing differences should also not be ignored.

Ben Barros

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June 26, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Squillace on the Antiquities Act of 1906

Mark Stephen Squillace (University of Colorado School of Law) has posted The Monumental Legacy of the Antiquities Act of 1906 on SSRN.  Here's the abstract:

The Antiquities Act of 1906 authorizes the President of the United States “to declare by public proclamation, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon [federal] lands . . . to be national monuments . . . ” The law was passed during the Theodore Roosevelt administration, and Roosevelt quickly set about designating a wide range of lands and resources as national monuments, including notably, the 800,000 acre Grand Canyon National Monument. Roosevelt's expansive interpretation of the law was embraced by later presidents and ultimately by the Supreme Court. In the latter part of the 20th century the use the law waxed and waned, reaching new heights with President Carter's spectacular designation of 56 million acres of land in Alaska as National Monuments, then falling dormant, only to become resurgent again at the end of President Clinton's first term with the designation of the Grand Staircase-Escalante National Monument, and the designation of 21 new or expanded monuments in Clinton's second term. This article traces the history of the Antiquities Act and its remarkable legacy. It describes the many special places that have received protection under the law, and the many controversies that the law has sparked. It also addresses the myriad legal and policy issues raised by the law and its evolution as a conservation management tool. Finally, the article discusses proposals for reforming the Antiquities Act, ultimately concluding that the law should remain just as it is.

Ben Barros

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June 26, 2007 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 25, 2007

Golf Law: Of Errant Golf Balls, Property, and Trespass

Waterville_golf_course Just back from New Orleans, where I attended a colleague's wedding.  I have renewed interest in the jazz influence in property law.  And I'm now getting caught up on blogging: Sunday's New York Times has an amusing (if you're not involved in it in any way), story on the increasing problems of golfballs that go astray and hit houses along the course.  It begins:

When she moved into her retirement condominium on a golf course, Eleanor Weiner admired the lush, pristine views of the fairways and greens, a landscape she never had to mow or maintain. Not long after, as she prepared dinner, a golf ball shattered the kitchen window, whistled past her head and crashed through the glass on her oven door. Ms. Weiner retrieved the ball from her oven and stalked outside to confront the golfer who had launched the missile.

“He told me that’s what I get for living on a golf course,” said Ms. Weiner, who has lived for a dozen years alongside Rancho Las Palmas Country Club near Palm Springs, Calif. “That was the first time I heard that, but it surely hasn’t been the last.”

The intersection of errant golf shots and private property is not a new phenomenon. But with new gear that enables average golfers to hit a ball 250 yards, and with golf communities sprouting nationwide — 70 percent of new courses include housing — it is becoming an increasingly prominent problem. Most homes built near this country’s 16,000 golf courses may not be in the cross hairs of slicing duffers, but thousands are.

It continues, about a lawsuit filed in Massachusetts by Joyce Amaral:

Although the club existed decades before the house was built, a court ruled that the balls — and the golfers looking for them — were a trespass. The parties settled this month, with the club agreeing to shorten the No. 9 hole, which should keep the Amaral property out of the line of fire.

But Pete Cuppels, the club’s owner, said the settlement would probably put his low-cost nine-hole course out of business.

... “We modified the hole before the settlement, and we’ve already seen a big drop in return business. I feel worse that my name is on a ruling that could be like the Roe v. Wade of golf law. If the precedent is that golf course owners are responsible for every crooked shot hit by a novice or a good golfer, we’re all in trouble.”

In addition to an assumption of the risk (which is perhaps diminished as a defense by intentional trespass?), I might think there would be some off-setting of the benefits here: the value of the property goes up, in pretty direct proportion to the proximity to the golfcourse.  Is the interest benefitted the same as that injured?  Maybe not.

I have no doubt that there are going to be some good student notes on this in the next year.

Endnote: The public domain image of the Waterville course is from our friends at wikipedia.

Alfred L. Brophy

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June 25, 2007 | Permalink | Comments (1) | TrackBack (1)

No Right to Own in the Northern Marianas

In my previous post, I explained that ownership of lands in American Samoa is restricted to Samoans only and that this law has survived an equal protection challenge.  The Commonwealth of the Northern Mariana Islands (CNMI) also has a similar land alienation restriction.  (For those who have not heard of the CNMI, it is a commonwealth like Puerto Rico that is subject to the sovereignty of the U.S.)  The CNMI Constitution requires a person to be of “one-fourth” Northern Marianas descent in order to own property or lease land for more than 55 years.   

Here are additional interesting information about this law:

- A person who is not of Northern Marianas descent does not have the right to inherit the property of his/her spouse who is of Northern Marianas descent unless the spouse dies without issue or with issue who is not eligible to own land in the first place.   

- A person who is not of Northern Marianas descent by “blood” may be considered as such if she was adopted by a family of Northern Marianas descent before she reached the age of 18.

- A corporation is considered a person of Northern Marianas descent for purposes of the statute if all of its directors are persons of Northern Marianas descent.

- In the event of a foreclosure of a mortgage, the transfer of the mortgage to a bank is not a violation of the law provided that the mortgagee is a full service bank and does not hold long term interest in the property for more than ten years.

Similar to the American Samoan law, the constitutionality of the CNMI law has been challenged on equal protection grounds and upheld. 

Rose Cuison Villazor

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June 25, 2007 in Land Use | Permalink | Comments (0) | TrackBack (0)

Times on Cultural Property Dispute

Yesterday's NY Times Magazine has an interesting story on a dispute between Yale and Peru over artifacts from Machu Picchu.

Ben Barros

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June 25, 2007 in Natural Resources | Permalink | Comments (0) | TrackBack (0)