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Univ. of Kentucky College of Law

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Friday, August 31, 2007

Law Review Rankings of the Worst Sort

Robert Jarvis and Phyllis Coleman have unfortunately updated their rankings of law journals by author prominence.  The contributor scale on page three is just absurd.  Did you know that it is less prestigious to publish something by me, a law professor at a fourth-tier school, than to publish something by the mayor of your local town?  Or that publishing something by me is less than half as prestigious as publishing something by a law firm partner?  This means that Frank Snyder (a former Latham partner) had his prestige cut in half when he joined the Texas Wesleyan faculty.  I can't think of anything good that can come from this type of ranking other than reinforcement of the law reviews' focus on author resume over article quality.

Ben Barros

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August 31, 2007 | Permalink | Comments (4) | TrackBack (0)

Freyfogle: On Private Property: Finding Common Ground on the Ownership of Land

Freyfogle The proofs of Eric Freyfogle's On Private Property: Finding Common Ground on the Ownership of Land, forthcoming in November from Beacon, has just appeared in my mailbox.  Beacon Press provides the following description:

Private property poses a great dilemma in American culture. We revere the institution and are quick to protect private-property rights, yet we are troubled when landowners cause harm to their neighbors and communities, especially when new development fuels sprawl and degrades the environment. Recent Supreme Court cases and new state laws around eminent domain have generated great controversy, and yet many people are unsure where they stand on this issue.

In this wide-ranging inquiry, law professor Eric Freyfogle explores the inner workings of the familiar but poorly understood institution of private property. He identifies the three threats it currently faces: government mismanagement, the recently reinvigorated property rights movement, and conservation groups' efforts to buy tracts of land in order to protect them. He then offers a solution in the middle ground between the extreme sides of these debates.

In On Private Property, Freyfogle gives glimpses of landownership's surprising past, revealing its complex links to liberty and ultimately showing why private property rights must remain consistent with a community's overall good. In conclusion, Freyfogle constructs piece by piece a provocative new vision of landownership, at once respectful of private interests yet responsive to communal needs.

It's a great combination of history--with chapters like "The Lost Right to Roam"--as well as contemporary areas of much contention--with chapters on "When We Should Pay" and a concluding chapter on "The Responsible Landowner: A Bill of Rights."

The search for common ground is a noble purpose.  I think you will enjoy the book and I think it's destined for lots of class adoptions.  And I hope to have a few more thoughts about this important book later.

Alfred L. Brophy

August 31, 2007 in Books | Permalink | Comments (1) | TrackBack (0)

Thursday, August 30, 2007

Advice to Law Journals: Part 5

After reading the cartoon (yes, literally, its made up largely of a cartoon) essay on legal scholarship in the most recent Journal of Legal Education, I realize I need to continue with advice to law journals. At some point I'll talk about that interesting piece (William J. Aceves et al., "The Orthodoxy of Format: Some Sketches of Legal Scholarship,"56 JLE 636 (2006)); I expect it'll get some attention.  Most surprising piece of it all?  I didn't realize that there was a cartoon version of Hayek's Road to Serfdom, until I saw it cited in note 6!  Get this--it was published by GM in its "Thought Starter Series."  Now that's something I'd like to know more about; bet that's a great source for intellectual history of the U.S. around the time of the New Deal.  (OK--I know this is far afield from propertyprof, but in 1938 Time had  a riveting discussion of GM's marketing man, Henry Woodfin Grady, who developed the "Thought Starter Series.")

While I'm all in favor of expanding the boundaries of legal scholarship, I have to wonder whether cartoons will enhance the apparently declining fortunes of legal scholarship among judges.  I think there are great reasons for experimenting with new forms of scholarship--great reasons--but I'm not sure this move will reach more judges.  Anyway, here's installment five.  (And, come to think of it, maybe I need to tack on one additional entry at the end on cartoons....)

Publish book reviews.  Based on some data that citations guru John Doyle's been running, it looks like book reviews aren't as useful as articles in getting citations (not surprising here)--though I'll let John blog about these at some point.  But I think book reviews are great ways of getting readership, helping create discussion, and recruit some pieces that will get some attention.  We too infrequently talk to one another in the legal academic business and reviews are great ways of engaging people--of getting thoughtful commentary on an extended argument.  Clash of ideas--now there's something we need in the legal academy and may actually get.  And this, as another piece of advice to younger scholars, write book reviews.  They're a great way of getting involved into a debate without writing something that takes years.

Next installment will have some advice on things to avoid--or at least be cautious of....

Alfred L. Brophy
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August 30, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Teaching the Law of Personal Property

For quite some time now, I've been meaning to blog about Peter Wendel and Robert Popovich's article The State of the Property Course:  A Statistical Analysis, which appeared last year in the J. Legal Ed. (anyone know of a link to an electronic version - I couldn't find one).  There are a lot of interesting things to talk about from the article, but one thing that jumps out is the degree to which traditional personal property subjects like the law of finders and intervivos gifts are neglected, especially in four credit courses.  There is nothing inherently surprising about this -- my understanding is that personal property coverage has been declining for some time now, and something needs to give in a four credit class.  I have a hard time, though, imagining teaching property without a reasonable amount of personal property coverage because personal property presents possession issues incredibly well.  I've restructured the first part of my course to be all personal property -- capture, finding, bailments, and gifts.  I do them quickly, and since I'm teaching a four credit property course this year, not in great depth.  The cases are relatively easy and accessible for first-year students.  By the end, the students have a good sense of the malleability of the idea of possession, which makes teaching related real property subjects easier.  Indeed, the classic finding case Hannah v. Peel presents the odd idea of possessing real property very well.  Time is scarce, but keeping at least some personal property coverage seems to me to be a good idea.

Ben Barros

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August 30, 2007 in Teaching | Permalink | Comments (1) | TrackBack (0)

Klein and Zellmer on Property, Floods and Hurricanes

Christine A. Klein and Sandra B. Zellmer (University of Florida College of Law) have posted Mississippi River Stories: Lessons from a Century of Floods and Hurricanes on SSRN. Here's the abstract:

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams; the perverse incentives created by the national flood insurance program; and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers.

Setting forth what we call the theory of “double takes,” this article argues that improvident coastal and floodplain development is facilitated by a pair of taxpayer-funded subsidies that unintentionally exacerbate the flood dangers faced by low-lying communities. First, floodplain developers “take” federal dollars in the form of subsidized flood control structures that enable construction in otherwise unbuildable areas. As a consequence, many floodplain residents are lured into harm's way. Alternatively, would-be developers may “take” federal dollars in the form of compensation under the Fifth Amendment, paid by states and local communities that forbid risky construction in flood-prone areas. Such claims for compensation are fostered by the 1992 decision, Lucas v. South Carolina Coastal Council, in which the Supreme Court endorsed the view that coastal areas are “valueless” in their natural state - a glaring misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.

Ben Barros

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August 30, 2007 in Land Use, Natural Resources, New Orleans, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, August 27, 2007

Introducing Property

Today, I began my second year of law teaching and it was also the first day of my year-long Property class. It's amazing what just one year of teaching the course taught me about what I would do differently the next time around.

The first change I made focused on the particular substantive area of property law with which I wanted to begin the course. Last year, following Joe Singer's suggestion in his article, "Starting Property," 46 St. Louis U. L.J. 565 (2002) and Steve Friedland's comments at last year's AALS New Law Teacher's Workshop, I decided to start the course by teaching the right to exclude first before teaching the origins or acquisition of property.  The first case I assigned was Jacque v. Steenberg, followed by State v. Shack.  By the end of the first semester, I thought that beginning the course on the right to exclude definitely helped to hone in the principle that property rights are not absolute and the students understood that the rights of ownership and possession also come with certain obligations.

There were times in the middle of the fall semester last year, however, when I thought that it would have been helpful for the students to have learned first the difficulties of acquiring or establishing the right to possess property. So this year, I decided to begin the course with acquisition of property.  There are of course different cases one could use to start off this topic as discussed here and here.  I chose to assign the first case on Singer's casebook, which like D&K's, is Johnson v. M'Intosh.   

The second thing I changed is that I opted not to assign a case for the first day of class. Although I assigned Johnson v. M'Intosh as the first case, we will not discuss it until the second day of the course. For today's class, I assigned the excerpt of Erving Goffman's Asylums: Essays on the Social Situation of Mental Patients and Other Inmates in Perspectives on Property Law (Robert Ellickson, Carol Rose and Bruce Ackerman, 3rd Edition). I thought the essay was a great way to introduce basic property concepts of ownership rights (rather, lack of ownership and why one might want to have ownership over a thing) but also property theories (personhood, labor, first-in-time, distributive justice).

Thanks to Bethany Berger for giving me the idea!

The third thing I changed (and this one is not substantive at all) was that unlike last year, I did not bring a bunch of sticks to class.  To highlight that property constitutes a "bundle of rights," I handed out a stick to different students with various labels attached to the sticks (leasehold, easement, future interest, etc.). Although I got great feedback on my evaluations for doing this last fall, I thought that I'll experiment with doing different things on the first day.

What do you do on your first day of teaching property?

Rose Cuison Villazor [Comments are held for approval, so there will be some delay in posting.]

August 27, 2007 in Miscellaneous, Property Theory, Teaching | Permalink | Comments (5) | TrackBack (0)

Craig on the Public Trust

Robin Kundis Craig (Florida State) has posted A Comparative Guide to the Eastern Public Trust Doctrine: Classifications of States, Property Rights, and State Summaries on SSRN.  Here's the abstract:

Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation's public trust doctrines – emphasis on the plural – can reveal.

This Article seeks to begin to restore that sense of comparative complexity to the discussion of public trust principles. It focuses on the public trust doctrines of 31 eastern states – all of the states east of the Mississippi River, plus the five states – Minnesota, Iowa, Missouri, Arkansas, and Louisiana – bordering the western bank of the Mississippi River. Moreover, it includes in an Appendix state-by-state summaries of the public trust doctrines in each of the 31 eastern states examined.

These eastern states provide a particularly rich subset of states for public trust discussion purposes. At its most basic, a state's public trust doctrine outlines public and private rights in water by delineating five definitional components of those rights: (1) the waters subject to state/public ownership; (2) the line or lines dividing private from public title in those waters; (3) the waters subject to public use rights; (4) the line or lines in those waters that mark the limit of public use rights; and (5) the public uses that the doctrine will protect in the waters where the public has use rights. The history of the eastern states' public trust doctrines has led to multiple variations in how these states define and assemble these five components. In particular, far more often than is the case in the later-settled West, public trust use rights in the East intrude – and for practical purposes always have intruded – upon privately owned riparian and littoral property.

Ben Barros

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August 27, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)