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Univ. of Kentucky College of Law

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Friday, August 10, 2007

Blumm and Grafe on Measure 37

Michael Blumm and Erik Grafe (Lewis & Clark Law School) have posted Enacting Libertarian Property: Oregon's Measure 37 and Its Implications on SSRN.  Here's the abstract:

In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it's clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.

Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in the 1970s and 1980s. But after a hiatus of a decade-and-a-half, land planning opponents put on the ballot a scheme that promised landowners either compensation or a regulatory waiver from land use requirements imposed after they—or a family member—acquired the land in question. That 2000 measure, which the voters approved as an amendment to the Oregon Constitution, was struck down by the Oregon Supreme Court for violating the state constitutional requirement that initiatives be limited to only a single subject.

Undaunted, the opponents of Oregon land use planning put another initiative on the ballot quite similar to the 2000 initiative in 2004, except that this initiative was a statutory amendment, not a constitutional amendment. Thus, it was not burdened by the concerns that led to the 2000's measure's judicial rejection. This measure, known as Measure 37, promises to transform land use regulation in Oregon and the Oregon landscape in the process.

This article explains the background, politics, and implementation of Oregon's experiment in creating what is the leading example of libertarian property in the world. The article explains early judicial and attorney general interpretations of the measure and its predecessor and focuses attention on the many ambiguities in the measure's language, particularly the uncertain scope of its express exceptions from compensation. Measure 37's proponents have attempted to export its principles to other states and, in 2006, Arizona joined Oregon as another laboratory for libertarian property. Finally, the Oregon legislature recently sent to the voters a referendum, which would attempt to clarify some of Measure 37's ambiguities, expedite regulatory waivers for small developments, but impose limits on new waivers for large developments. The Oregon electorate will decide this referendum in November 2007.

Ben Barros

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August 10, 2007 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Dagan on the Limited Autonomy of Private Law

Hanoch Dagan (Tel Aviv University) has posted The Limited Autonomy of Private Law on SSRN.  Here's the abstract:

The relationship between private law adjudication (typified as the bipolar encounter between plaintiff and defendant) and social values usually associated with much broader settings (such as the pursuit of distributive justice by state legislation) is a perennial concern of legal theory. The task of this essay is to strike the middle-ground between the voices of private law autonomy and the total instrumentalization of private law for any desirable value, purpose, or state of affairs. I claim that neither autonomist theory nor its instrumentalist counterpart provides a satisfactory account of private law. Autonomist theory is implausible because private law rests on a thick perfectionist view of society and hence cannot claim to be neutral vis-à-vis social values. But unlimited instrumentalism is also misguided because, as autonomists insist, the bipolar structure of private law litigation indeed entails certain normative constraints. These two propositions yield the main conclusion of this essay: the normative infrastructure of any private law doctrine should be responsive both to (minor) bipolarity constraints on the one hand, and to social values appropriate to the pertinent category of human interaction on the other. The essay further explores the implications of this conclusion for three specific doctrinal issues: marital property, monetary remedies for breach of entitlements, and the right of entry (into property).

Ben Barros

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August 10, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 8, 2007

Brooks on Hegel on Property

Thom Brooks (University of Newcastle upon Tyne (UK) - Newcastle Law School) has posted Hegel on Property on SSRN.  Here's the abstract:

Hegel's views on property are one of the most misunderstood aspects of his thought. We can best correct these misunderstandings only by interpreting his comments on property in full light of their place in the Philosophy of Right and the place of the Philosophy of Right within Hegel's larger philosophical system.

Hegel's Philosophy of Right is divided into three parts, each related to one another dialectically. These parts are 'abstract right [abstrakte Recht]' (PR, Subsection 34-104), 'morality [Moralität]' (PR, Subsection 105-41), and 'ethical life [Sittlichkeit]' (PR, Subsection 142-360). Most commentators have restricted their analyses of Hegel's theory of property primarily to the section abstract right in his Philosophy of Right. Others have mistaken Hegel's views on property in abstract right as a theory of private law.

Few substantively appreciate that Hegel offers an extended view of property built around very different concerns in his later discussion of 'civil society [die burgerliche Gesellschaft]' contained in the final part of the Philosophy of Right, 'ethical life'. Perhaps more importantly, it has gone relatively unnoticed how Hegel's discussion of the free will in 'Subjective Spirit' found in his larger philosophical system (ES, Subsection 440-82) relate to his discussion of the free will in 'Objective Spirit' immediately following (ES, Subsection 483-552). This is important for an interpretation of the Philosophy of Right given that this text is an elaboration of 'Objective Spirit'.

An initial test of a systematic reading of the Philosophy of Right is whether it can contribute to our understanding of the Philosophy of Right by demonstrating the explanatory force of the wider philosophical system. In this brief study, my aims are relatively modest. I will begin by explaining how the section 'Subjective Spirit' is related to the Philosophy of Right. Central to this explanation is the development of the free will from one to the other. This view helps us make best sense of the primary problem of the Philosophy of Right, namely, how the free will can will freely, not arbitrarily. The following section explains why Hegel's views on property ownership in abstract right are primarily illustrative of the initial development of the free will, rather than a complete theory of property as many have maintained. If my position is correct, then we cannot present a picture of Hegel's theory of property that exclusively considers abstract right nor can we understand abstract right as a realm of private law. This position is best arrived at after grasping the relation of the abstract right within the Philosophy of Right and Hegel's larger philosophical system.

This short essay is definitely worth a read for folks interested in the philosophy of property or in neo-Hegelian theories of property like Radin's personhood theory.

Ben Barros

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August 8, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

New Permablogger

As you can see from the masthead to the left, Rose Cuison Villazor has joined us as a contributing editor.  Welcome Rose!

Ben Barros

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August 8, 2007 in About This Blog | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 7, 2007

Love Cemetery: Restoring Access to a Slave Cemetery

Lovecemetery_2 Just read China Galland's charming Love Cemetery, which has just appeared from HarperCollins.  It  combines just about all of my interests, for it is a story about an African American cemetery in East Texas (that dates to the 1830s), which a community pulled together to clean up from 2003-06.  Garland links the account of the clean-up with her exploration of the community's history with taking land from some of its black residents.  Ah, cemeteries and land loss, memory and reparation.  Now those are some topics I'm interested in!

Here's the description from HarperCollins:

Love Cemetery is the story of one woman trying to come to terms with racism––on both personal and public levels. When China Galland visited her childhood hometown in east Texas, she learned of an unmarked cemetery for slaves––Love Cemetery. Her ensuing quest to reclaim the ground, to mark it, unearths racial wounds that have never completely healed.

Research into county historical records and interviews with local residents in Harrison County––at one time the largest slave–owning county in Texas––led Galland to the discovery of Love Cemetery, an African–American communal burial ground that the local community had been locked out of for forty years. Research became activism as she helped organize a grassroots, interracial committee, made up of local religious leaders and lay people, to work on restoring community access to Love.

Metaphorically, Love Cemetery is only one example of a much larger body of unearthed history. The author presents material that reaches back to the time of slavery and post–civil war Reconstruction, of lynchings and "landtakings" (the theft of land from African Americans). Love Cemetery shines a light on the national legacy and shame of slavery through an inspiring story of one community's reconciliation in their united effort to mark a piece of American history. The history of Love Cemetery is the history of slavery in the United States––a history that touches us all–black or white. The message of Love Cemetery is ultimately one of tremendous hope as members of both black and white communities come together to right an historical worng, and in so doing, discover each other's common dignity.

But my favorite line in the whole book:

[I]n Texas, he land belongs to the dead; descendants have a right of access to their deceased family members, regardless of how much private property they have to cross. [41]

Ah, cemetery law!

Alfred L. Brophy
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August 7, 2007 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2007

New Jersey Post-Kelo Eminent Domain Case

Last week, a New Jersey intermediate appellate court issued an opinion in Vineland Const. Co., Inc. v. Township of Pennsauken upholding a Kelo-style taking for private development.  The town had selected a private entity to redevelop an area of waterfront that included plaintiff's land.  Plaintiff wanted the option of redeveloping the property on its own.  The taking was upheld under Kelo and New Jersey equivalents.

Ben Barros

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August 6, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)