PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, July 28, 2007

Gee's Bend: Quilt Lawsuit and Library of Congress Photos

Pettwayhouseloc So the lawsuit by a couple of Gee's Bend artists has hit the New York Times.  Not often that rural Alabama lawsuits make it that far, which is reason enough for propertyprof to take notice. This will be a great topic of discussion in my trust class this fall.  Sounds like the collective of quilters has some pretty interesting arrangements:

The quilters’ collective, an informal group of about 40 members, pays $150 a month to rent a former day care center marked by a small, hand-painted sign, where one room is stacked floor to ceiling with quilts. Small quilts go for $200 to $1,000, while bed-sized ones are priced at $950 to $7,500.

When a sale is made, half the money goes to the quilter and half to the collective, which periodically disburses dividends to all members. Royalties from reproductions of the quilts go into the foundation, which now contains $147,000. The system was designed to forestall jealousy, protect elderly quilters who can no longer sew, and acknowledge the interdependent nature of the community, where many quilters are related and styles were handed down from mother to daughter.

Geesbendquilter_3 This'll generate some great discussion, I am sure.  And we never want to miss an opportunity to present some lovely photographs from our friends at the Library of Congress, taken by Arthur Rothstein in 1937, including a photograph of three quilters (at right).

Update: Our friends over at blackthreads and at the art law blog are talking about the story as well.  Here's Auburn University's website on the Quilts of Gee's Bend.

Alfred L. Brophy
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July 28, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, July 27, 2007

Anti-(Undocumented) Immigrant Ordinance Struck Down

The Hazleton, Pennsylvania ordinance barring undocumented immigrants from renting property was struck down on constitutional grounds. The U.S. District Court for the Middle District of Pennsylvania invalidated the law invalidated the law mainly on preemption grounds in that the local government sought to regulate immigration law, which is an area of law over which the federal government has primary jurisdiction under the Constitution.  The court relied on other arguments to strike down the law, including the Due Process Clause of the 14th Amendment, which according to the court protected the tenants' property interests in their apartments and landlords' interests in the rights to income on their property. The NY Times article about the opinion is found here.

I was particularly struck by footnote 62, which quoted a dissenting opinion by Justice William O. Douglas in Lindsey v. Normet, 405 U.S. 56, 82 (1972).  It said, "[m]odern man's place of retreat for quiet and solace is the home.  Whether rented or owned, it is his sanctuary.  Being uprooted and put into the street is a traumatic experience."

Rose Cuison Villazor 

July 27, 2007 | Permalink | Comments (0) | TrackBack (0)

New Jersey Supreme Court sides with Homeowners Association

Well, this result was predictable.  Yesterday the New Jersey Supreme Court issued a decision in Committee for a Better Twin Rivers v. Twin Rivers' Homeowners Association.  It held that the Twin Rivers' Homeowners Associations rules regulating political speech on private property do not interfere with New Jersey's constitutional guarantee of free expression.

This article quotes Rutgers Law prof Frank Askin (counsel in the case) that it signals that the New Jersey Supreme Court is  "pulling back from their stance in taking the lead in extending rights under the state constitution."

Here's a link to WBUR's The Connection show on the case from August 2002.  It's a great show--I highly recommend it.  And here's the Twin Rivers' Community Association webpage--makes for so good discussion in class.

Thanks to our friends at concurring opinions for this news.

Alfred L. Brophy
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July 27, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 25, 2007

Why Conservation Is Failing and How It Can Regain Ground

Freyfogle Why Conservation Is Failing and How It Can Regain Ground is Eric Freyfogle's new book from Yale University Press.  The YUP description is as follows:

Critics of environmental laws complain that such rules often burden people unequally, restrict individual liberty, and undercut private property rights. In formulating responses to these criticisms, the conservation effort has stumbled badly, says Eric T. Freyfogle in this thought-provoking book. Conservationists and environmentalists haven’t done their intellectual homework, he contends, and they have failed to offer an understandable, compelling vision of healthy lands and healthy human communities.

Freyfogle explores why the conservation movement has responded ineffectually to the many cultural and economic criticisms leveled against it. He addresses the meaning of good land use, describes the many shortcomings of “sustainability,” and outlines six key tasks that the cause must address. Among these is the crafting of an overall goal and a vision of responsible private ownership. The book concludes with a stirring message that situates conservation within America’s story of itself and with an extensive annotated bibliography of conservation’s most valuable voices and texts—important information for readers prepared to take conservation more seriously.

Propertyprofs ought to be familiar with Freyfogle's important 2003 book The Land We Share: Private Property and the Common Good.

Alfred L. Brophy
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July 25, 2007 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2007

More on Statues and Monuments: Roger Taney and the Dred Scott Decision

As I am working on my paper on Thomas Ruffin's moral philosophy, "Dealing with the Sins of the Forefathers" from the Washington Post on arrived in my in box.  (Thanks to Peter Storandt.)  The story arises from a controversy in Maryland right now, where some want to remove a bronze image of Chief Justice Roger Taney from the State House in Annapolis and other from the Federick City Hall.  The story quotes descendants of both Scott and Taney--Dred Scott Madison II and J. Charles Taney:

"If we want to get into the business of taking down statues of founding fathers who were flawed, we're going to have to get to a lot of people," Taney, 60, said in an interview from his home in Connecticut. "All of the men of the South -- Jefferson, Washington -- all were flawed in this regard."

From his home in Texas, Madison, 48, agreed. "Someone's statue? If you move it, where do you end? Do you go down South and start removing all of the statues of Confederate officers? It's part of American history. You can't hide it."...

Mighty interesting story, which touches on central issues of monument law.  Harvard Law School has already dealt with some of this:

"It was a profoundly disturbing decision that literally ripped a nation in half," said Harvard law professor Charles J. Ogletree, who noted that his school removed a painting of Taney from its library in 1992. "It's no surprise that some of the current thinking is that it is not only inappropriate to celebrate him but that any recognition of Taney as anything other than a blight on the federal judiciary is unacceptable."

I have a few thoughts on Dred Scott as a site of reparations talk in this paper.

Alfred L. Brophy
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July 23, 2007 | Permalink | Comments (1) | TrackBack (0)

Peer Review: Rising or Setting?

Legal academic blogs have been buzzing recently about Harvard's new peer-reviewed journal.  Larry Solum and Brian Leiter have both written about the Journal of Legal Analysis.  Based on the Journal of Legal Analysis' board of editors, it will be heavily slanted toward law and economics; I hope that the full board will be a little more representative of the spectrum of legal analysis. But I'm grateful for anything that increases the role of professionals in the publication process and I suspect this will be a huge success.  There are already a lot of outlets for serious, peer-reviewed scholarship and that, along with the trend toward publishing monographs with university presses,I think we're close to a tipping point in the legal academy.

I have a few thoughts on the economics of legal scholarship in this short paper, which focuses on the incentives law schools have to improve their law journals (including increased faculty involvement).

However, the rest of the academy may be going in the other direction.  Danny Sokol has just called my attention to Glenn Ellison's "Is Peer Review in Decline?"  Ellison documents the decline in the faction of papers in top economics journals written by economists from top departments.  Perhaps, he speculates, this is due to the dissemination of papers on the internet.  His abstract follows:

Over the past decade there has been a decline in the fraction of papers in top economics journals written by economists from the highest-ranked economics departments. This paper documents this fact and uses additional data on publications and citations to assess various potential explanations. Several observations are consistent with the hypothesis that the Internet improves the ability of high-profile authors to disseminate their research without going through the traditional peer-review process.

So, that leads to the question whether peer review is increasing or decreasing.  And this may spark the next round of discussions in legal academic blogs on the role of the internet in scholarship....  (It seems to me that this may also be indicative of the oft-mentioned democratization of education--of terrific faculty at schools throughout the country.)

Alfred L. Brophy
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July 23, 2007 in Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Joireman on New Property Rights in Sub-Saharan Africa

Sandra Fullerton Joireman (Wheaton College) has posted Enforcing New Property Rights in Sub-Saharan Africa: The Ugandan Constitution and the 1998 Land Act on SSRN.  Here's the abstract:

Many Sub-Saharan African countries are embarking on major changes in their property rights law with the goal of achieving more vigorous economic growth and alleviating poverty. Uganda has been at the forefront of these changes in property rights in land with Constitutional change and a new land law. The Ugandan land law encapsulates recent efforts to formalize the informal property rights that exist. This article uses paired case studies to examine the implementation and enforcement of the 1998 Land Act in Uganda. There have been three major impediments to the implementation of the Land Act: lack of capacity, corruption and customary law. While the new land law in Uganda has been necessary to achieve a change in property rights, it has faced obstacles in its implementation that undermine the achievement of secure private rights to land.

Ben Barros

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July 23, 2007 | Permalink | Comments (0) | TrackBack (0)

Smith on IP as Property

Henry E. Smith (Yale Law School) has posted Intellectual Property as Property: Delineating Entitlements in Information on SSRN.  Here's the abstract:

This Article proposes that intellectual property's close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms of forgone use than in the law of tangible property. But if intellectual property does not solve a problem of allocation to information, it can play a role in allowing those who find and develop information to appropriate the return from their rival inputs. It is on the cost side that exclusion emerges as a possible shortcut: exclusive rights in information are simple, indirect, and low-cost devices for solving the problem of appropriating the return from these rival inputs. Building on a framework that identifies exclusion and governance as complementary strategies for defining property rights, the Article derives some propositions about which factors can be expected to push toward and away from exclusion in delineating entitlements to information. The role that exclusion plays in keeping the system of entitlements over information modular - allowing information to be hidden behind metaphorical boundaries - is both its strength and its weakness. Because exclusion is both more costly and potentially more beneficial as interconnected information becomes more valuable, it is an empirical question whether we would expect more exclusion - and whether it would be desirable. The Article uses this information-cost theory to explain some of the basic differences between the more tort-like copyright regime and the more property-like patent law. The information-cost theory also has implications for suggestive sources of empirical evidence on structures of entitlements, such as rules within business organizations. Intellectual property, like property in general, can be seen as (at best) a second-best solution of a complex coordination problem of attributing outputs to inputs.

Ben Barros

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July 23, 2007 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Cramer on Eminent Domain for Private Development

Benjamin D. Cramer (Center for Business Law and Regulation) has posted Eminent Domain for Private Development - An Irrational Basis for the Erosion of Property Rights on SSRN. Here's the abstract:

Municipalities have become increasingly bold in their use of eminent domain. This sovereign power was once reserved for public works, but municipalities have increasingly used eminent domain for such putatively private projects as building factories, shopping malls, and upscale condominiums - using the increased tax revenue that these projects will produce rather than the public's ability to make use of the development itself to justify their actions. This Note [written prior to the Supreme Court's decision in Kelo v. New London] explores the controversial exercise of eminent domain for the purpose of promoting private development. After tracing the history of the eminent domain power in America, this Note suggests a judicially manageable test for determining the validity of a proposed taking. Those acts that are traditionally within the scope of the eminent domain power should be treated as presumptively valid, whereas takings for the purpose of transferring property to private entities should be subjected to a higher level of scrutiny. This solution will not prevent all takings for the purpose of private development; it would, however, acknowledge the limitations imposed by the Fifth Amendment's Public Use Clause and limit the use of eminent domain to those projects that truly benefit the public.

Ben Barros

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July 23, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)