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Saturday, July 21, 2007

Another Hippie Property Song

It's a Saturday in July--so a nice time for something light.  We'll be back to talking about  note topics for the new crew of law review soon enough.

Carl Christensen reminds us--how could we possibly forgot this?--that the Five Man Electrical Band has a classic of hippie property jurisprudence, Signs.  And of course Ben's been humming the song while taking these cool pictures of Cape Cod.  Check out these lyrics:

And the sign said anybody caught trespassing would be shot on sight.
So I jumped on the fence and yelled at the house, Hey! what gives you the right
To put up a fence to keep me out or to keep mother nature in.
If God was here, he'd tell you to your face, man you're some kinda sinner.

Those lyrics remind me that one of these days we need to talk about the relationship of William Blackstone to Christianity and to property (a topic of much importance to Hawaiian missionaries).  In the interim, you may be most interested in my colleague Bill Brewbaker's paper Found Law, Made Law and Creation: Reconsidering Blackstone's Declaratory Theory.

Carl's provided this link to a youtube broadcast of it, below.

And, as long as we're talking about songs with property themes, how about The Kinks' Coming Dancing:

They put a parking lot on a piece of land
Where the supermarket used to stand.
Before that they put up a bowling alley
On the site that used to be the local palais.
That's where the big bands used to come and play.
My sister went there on a Saturday.

More nominations?

Alfred L. Brophy
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July 21, 2007 | Permalink | Comments (1) | TrackBack (0)

Thursday, July 19, 2007

Property Signs - Cape Cod Edition

Regular readers will know that we like to talk about property signs here at PropertyProf.  Earlier this week I took a couple of pictures of signs on the beaches here in Orleans, MA, where we've been coming for vacation for a few years.  Al and Carl will be amused to know that I was humming "Signs" by the Five Man Electrical Band to myself while I was taking some of the pictures.  There are two main beaches in Orleans, Skaket on the Bay side and Nauset on the Ocean side.  We spend most of our days on Skaket, where the water is warm and the tide goes out a long way (over a mile), leaving behind tide pools that are lots of fun for kids to splash around in.  Skaket isn't a long beach, and at high tide things can get a little tight.  There are three private houses at one end that have a small strip of private beach, leading to this sign:

Summer_2007cc_041

What I like about this example is the combination of the "End of Protected Beach" sign and the private beach sign -- the "this is private property, keep off" message comes through, but the overall vibe is more "if you come over here and drown, don't blame us."  Of course, people on the Cape tend to be polite and bourgeois, so there is no need to make the sign too pointed.

Over at Nauset, where we often go in the evening, there is this sign:

Summer_2007cc_027

The dunes are prone to erosion and are habitat for the endangered piping plover.  I think the two signs together make an interesting pair.  They both are all about the right to exclude, but the right is being used for different purposes in each situation.  Maybe I'll use the signs when I'm teaching the right to exclude this year.  Is the use of the right to exclude in one situation better in some way than the other?  Discuss.

Ben Barros

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July 19, 2007 in Teaching | Permalink | Comments (1) | TrackBack (0)

Historic Preservation in Tuscaloosa

Walkerpercy This morning brings another great story from my local paper, the Tuscaloosa News, on the efforts to preserve one a landmark in town--an antebellum mansion.  The whole story is worth a read (you may have to register with the paper--it's free), but the property lawyer in me is particularly interested in the concluding paragraphs:

After changing hands several times following Drish’s death, the home passed from private hands in 1906 to the Tuscaloosa Board of Education, which used it as a school.

In the 1920s the board rented the building to Tuscaloosa Wrecking Service and the building, with the company’s name over the first floor and “AUTO PARTS" over the second floor in large white-on-black letters, became the subject of a 1936 photograph by Walker Evans, co-author of the Depression-era classic, “Let Us Now Praise Famous Men."

In 1940 the Drish House was purchased by the nearby Southside Baptist Church, which built a sanctuary abutting the house. The church used it sparingly over the years until it closed its doors for good three years ago because of a dwindling congregation.

Remaining church members held onto the deed to the house until last week, said Bobby Ledbetter, a former church member who was instrumental in the handover to the preservation society at no cost.

“We hope it is finally in good hands now and that the preservation society will be able to fix it up and restore it to what it used to be," he said.

Endnote: I've illustrated this post with Walker Evans's photograph, from the Library of Congress' Collection.  More photographs here.

Alfred L. Brophy
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July 19, 2007 in Land Use | Permalink | Comments (1) | TrackBack (0)

Monday, July 16, 2007

Hippie Jurisprudence: The Rolling Stone 40th Anniversary Issue

Rollingstone1967 Just on the heels of my post on lyrics you might use in class (mostly from the 1960s), comes the most recent issue of Rolling Stone into my mailbox.  Very close readers of the legal blogosphere may recall that I read Rolling Stone (as a way of keeping connected to my students, although that strategy doesn't work).  This one, however, has got a lot to talk about.

First, the on-line version has an interactive map, which I recommend--click on San Francisco and you'll get part of Grace Slick's White Rabbit.

Second, an article by Princeton University historian Sean Wilentz (author of such volumes on the nineteenth century as Chants Democratic and The Rise of American Democracy.)  Wilentz locates 1967 as the start of the culture wars: free love & drugs vs. stability.  Locating major trends in American culture in a single year is always hard--though there have been some really successful books built around years (Kenneth Stampp's 1857; Louis Mazur's 1819 immediately come to mind.)  And while I would have emphasized more of the counter-culture and less of the conservative response were I fortunate enough to be writing for Rolling Stone, the essay's well worth a read.

But to return to the story; we're spoken a little bit about aloha jurisprudence.  And now I think we might want to talk a little bit about hippie jurisprudence of property.  "Steal this Book" is a rather depressing account of respect for law and property.  But I wonder if there's something more serious that can be done here?  Legal historians spend a good deal of their energy trying to find ways to link larger culture to the rhetoric and behavior of judges.  So the question is natural: did judges adopt a language or reasoning style that sprang from the hippies?

In the context of the summer of love (and its wake), one wonders how attitudes towards squatter's rights, for instance, might have changed.  (In fact, this issue of Rolling Stone talks a little about squatting--Owsley, the king of LSD, and his wife "now live in Australia forty-five minutes from anywhere on 120 acres of land he claimed by squatting on it like a pioneer.")  Did judges adopt more communal approaches to property or alter the law in ways that might suggest hippies' ideas?  Just so happens I think there may be a few cases from the early 1970s that echo hippie rhetoric. 

Let me suggest a few in particular.  One is about beach access--from the early 1970s.  Then there is U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), which protected hippies from discrimination in food stamps.  I'm not quite sure that's what I'd call hippie jurisprudence, but it grows from a core of values of non-discrimination, which sound rather "hippian."

Then there's the anti-hippie ordinance (which prohibited people from sitting in a park at Carmel-by-the-Sea), which the California Supreme Court struck down in 1971 in Parr v. Municipal Court, Cal.3d 861, 479 P.2d 353 (Cal. 1971).

Actually, a propos of monument law, the ordinance prohibited sitting on public monuments (among other things):

On any public property it shall be unlawful for any person to: * * * ((2)(b)) Climb any tree; or walk, stand or sit upon monuments, vases, fountains, railings, fences, planted areas, or upon any other property not designed or customarily used for such purposes, or to sit on any sidewalks or steps, or to lie or sit on any lawns.

The city argued in Parr that hippies threatened to destroy the community:

Carmel also urges the court to examine the ‘historical context and the conditions existing prior to’ enactment of the ordinance. We hope the court will not shut its eyes to ‘matters of public notoriety and general cognizance.’ We hope the court has seen the instant slum created in the Haight-Ashbury. We hope the court has seen the deterioration if not destruction of the Telegraph-campus in Berkeley; we hope the court has seen the squalor and filth of the communes in Big Sur, and the damage caused by the sheer numbers of this transient phenomenon. The court may be aware that Carmel had become a meeting place-a mecca-for the hippies who had become disenchanted with the Haight-Ashbury and Berkeley. Regarding this ordinance we hope that the court observed the ‘conditions existing prior to its enactment.’ The mass of humanity that occupied the park smothered the grass by their very numbers. The grass competed with and struggled against the overwhelming effect of heavy usage-cigarettes, bottles, knives, and just plain people.

But perhaps the case has more to do with the post-World War II opposition to racial discrimination than with hippies, for the court invoked Justice Murphy's concurrent in Oyama, which invalidated California's Alien Land Law (and it also cited some of Jacobus tenBroek's work on the fourteenth amendment, which similarly drew on the post-war optimism about the broad meaning of the fourteenth amendment's equality principle):

‘The more basic purpose of the statute was to irritate the Japanese, to make economic life in California as uncomfortable and unprofitable for them as legally possible. It was thus but a step in the long campaign to discourage the Japanese from entering California and to drive out those who were already there.’ (Oyama v. California (1948) supra, 332 U.S. 633, 657, 68 S.Ct. 269, 280, Justice Murphy concurring.) In the instant case, it appears that the purpose of section 697.02 is to irritate youthful hippies and to make their existence in Carmel as uncomfortable as possible by closing to them effective use of those public places where they choose to congregate.

It also referred to a three-judge panel's opinion in Wheeler v. Goodman, 306 F.Supp. 58 (D.C. N.C. 1969), which has this memorable phrase from Judge Craven: " A man is free to be a hippie, a Methodist, a Jew, a Black Panther, a Kiwanian, or even a Communist, so long as his conduct does not imperil others, or infringe upon their rights."

I guess if you want to study the central hippie influence on property law, you need to be looking for places where music influenced (or at least correlated with) how people think about property.  So Joni Mitchell's Big Yellow Taxi comes to mind immediately.  (See below for a propertyprof first--a link a a youtube video of Joni Mitchell in concert.)  Propertyprofs should, of course, be familiar with David Callies' similarly titled Preserving Paradise.

Alas, I thought that I might have been the first person to invoke the phrase hippie jurisprudence.  However, Jon B. Hultman beat me to it with a note--amusingly titled--"Administrative  Denaturalization: Is There 'Nothing You Can Do That Can't Be [Un]done'?"--in volume 34 of the Loyola of Los Angeles Law Review in January, 2001.

All of this is pure speculation on my part.  And I stand ready to be corrected.  This has happened before.  When Justice Samuel Alito visited Tuscaloosa last spring I asked him about whether there is any evidence of his judicial restraint and skepticism of extending precedent in his 1975 Yale Law Journal note (previously discussed here--where I suggested some links between Ben Barros' work and Justice Alito's note).  He said flatly, "I don't think so."  End of another intriguing idea for an essay!

I'd be interested if propertyprof readers have any other instances of hippie jurisprudence in mind.

By the way: I'm posting this from the Ronald Reagan McDonalds in Northport, Alabama.  It's the only McDonalds in the country where President Reagan ever ate (so far as we know).  Wifi in McDonalds in Northport, Alabama?!  The times, they are a-changin'.  I'm guessing President Clinton ate at large percentage of them.  All of this reminds me of one of my favorite quotes from Ronald Reagan, during, as I recall, his campaign for governor: hippies dress like Tarzan, have hair like Jane, and smell like Cheetah (or something like that).  Now that's great politics.

Update: Carl Christensen provides this link to a record with songs from 1971 (the year Parr was decided)--nice samples, too.

Alfred L. Brophy
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July 16, 2007 | Permalink | Comments (1) | TrackBack (0)