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Friday, September 21, 2007

Two Revealing Stories on Libraries and One on Peer Review

Moved up to September 21 because of the update below, which includes a link to a Times story which links to the books on the Bureau of Prison's approved list.

Been absurdly busy of late--teaching wills and trusts (the Christopher Benoit story makes for engaging class discussion on the Georgia slayer statute and it's a lot more complex that you'd think at first) and desperately trying to finish up papers on Thomas Dew and on Thomas Ruffin--so much so that I didn't realize until I got home last night that legal education was rocked by the story of UC Irvine's appalling mistreatment of superstar Erwin Chemerinsky (great commentary on this by Trina Jones).  This is sort of like 2003 when I was so consumed with work that I missed the story of the Space Shuttle Columbia disaster.

I must, though, notice two stories on libraries.  The first, sent to me by my favorite librarian, from the New York Times tells of the Bureau of Prison's recent decision to limit religious books in prison libraries to ones on an approved list.  Another shocking move (if true), but also one that reveals just how much we think ideas in books matter.  (Close readers of the legal blogosphere will recall that I'm interested in prison libraries as an indicator of ideas of prisoners.)  All of this is further evidence of the importance of the history of the book project.  Second, one from my hometown paper about a patron's removal of a book from a high school library.  Ditto to the last comment.

And now, thanks to Dan Solove's pointer, I see superstar historian David Oshinsky's story on the Alfred Knopf archives.  It contains decades of reader reports for Knopf and rejection letters.  Included among the reader reports, something on Jack Kerouac--“His frenetic and scrambling prose perfectly express the feverish travels of the Beat Generation. But is that enough? I don’t think so.”  Well, something else to think about as I work away (rather slowly) on hippie jurisprudence.

UPDATE:  A propertyprof reader was kind enough to alert me to this New York Times article, which provides links to the Bureau of Prison's list of approved books on religion.  Mighty, mighty interesting stuff.

Al Brophy
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September 21, 2007 | Permalink | Comments (0) | TrackBack (0)

Stoloff on Mt. Laurel v. Mipro

Matthew Stoloff (Syracuse) has posted A Taste of Things to Come?: Eminent Domain in the Name of Population Control on SSRN.  Here's the abstract:

In Mount Laurel Township v. Mipro Homes, LLC., 878 A.2d 38 (2005), 910 A.2d 617 (2006), the New Jersey courts were faced with the question whether the local government in Mount Laurel had legitimately exercised its power of eminent domain when it acquired a piece of property zoned for residential use under the disguise of open space preservation. In the past forty years, Mount Laurel's population exploded eight-fold and continues to grow at a rate of approximately 1,000 people per year. The property in question had already undergone some development when Mount Laurel exercised its power of eminent domain. Was Mount Laurel's motive to control population growth? If so, may Mount Laurel exercise the power of eminent domain to control population growth?

This paper provides an overview of urban sprawl and the legacy of Berman v. Parker. Next, I summarize the facts and legal issues set forth in Mount Laurel v. Mipro, a case in which a local government exercised its power of eminent domain under the disguise of the New Jersey open space preservation act. A critical analysis of the New Jersey Appellate Court and New Jersey Supreme Court's decisions follows. I argue that Mount Laurel's taking to control the population growth was exercised in bad faith and that no public purpose was achieved when Mount Laurel prevented Mipro from developing twenty-three residential homes. I also argue that the New Jersey Supreme Court missed an opportunity to explain why it did not think that Mount Laurel did not exercise eminent domain in bad faith and what, precisely, would constitute bad faith. The N.J. Supreme Court's three-paragraph decision is disappointing in light of the intelligent and engaging arguments Mipro and Mount Laurel made at oral argument.

Ben Barros

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September 21, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 19, 2007

Another Milestone: 100,000 Visitors

Milestoneframingham Well, we've passed another milestone:  100,000 visitors.  Thanks for visiting; and we're all looking forward to much more talk of property scholarship, cases, and teaching methods.

Your friends and colleagues at propertyprof.

The image is of an eighteenth century milestone from around Boston, from the University of Michigan's fabulous exhibit on Colonial America in photography.

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September 19, 2007 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Advice to Law Journals: Part 9

Social_science_research_methodolo_2 9    do not reject out of hand pieces that are on esoteric subjects or that employ social science methodology

I've seen a lot of students over the years reject pieces because they are on topics that they (the editors) are not interested in--or perhaps do not understand.  In fact, a propos of this I was having lunch on Friday with a student who's working on a terrific empirical study of probate in antebellum Tuscaloosa.  (We've praised Lawrence Friedman et alia's recent empirical work on probate here.)  When talk turned to placing the article, he looked at me and said--rather pessimistically--"I guess a lot of editors will look at this and say 'I don't want to deal with cite-checking this.'"  I'm sure he's right; but that would be a mistake for an editor to say that.  They'll miss an opportunity in this case--and in lots of other ones, too--to publish something that's original and makes a significant contribution.

Alfred L. Brophy
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September 19, 2007 in Law Schools | Permalink | Comments (2) | TrackBack (0)

Tuesday, September 18, 2007

Conquest By Law

Conquest Thanks for the opportunity to participate.  Al has asked me to say a few words about my recent book, Conquest by Law (2005), which has just come out in paperback.  Conquest by Law is a case history of Johnson v. M’Intosh, the foundational Indian Law decision as well as the first case taught in many Property Law classes.  Johnson gave rise to the discovery doctrine, according to which, on the discovery of the North American continent, European discovers acquired fee title to all discovered lands, leaving the indigenous inhabitants an occupancy right alienable only to the discovering sovereign.   

The book (144 pages) is written for a general educated audience and offers an insider’s glimpse into the process of litigation and adjudication in the Early Republic.  It was 14 years in the works and is built on previously unused documents – the corporate records of the Illinois and Wabash Land Companies, the effective plaintiffs in the case -- which I discovered in the possession of the family of the Companies’ last secretary.  Conquest by Law provides a narrative account of the process of land acquisition and judicial lawmaking during and after John Marshall’s tenure on the Supreme Court.  Many of the figures students will encounter in their first year courses and Constitutional Law make appearances in the book, including Marshall, Daniel Webster, and Joseph Story, as do figures they will know from US History, including Thomas Jefferson, Andrew Jackson and William Henry Harrison.   

It is my hope that students will finish the book feeling they have a much better grasp of the complex origins of our judicial system and property law regime.

Lindsay Robertson
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September 18, 2007 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Advice to Law Journals: Part 8

Nasasun090607_2 8    think seriously about articles on“hot” topics–-they are both good and deserve caution.

There is a lot to be said for articles on "hot topics"--they'll get attention; people are interested in reading them.  Then again, it's also often difficult to say something new about such topics.  It's hard to have something new to say in a thickly populated field.  And fads are notoriously unstable--what's "on fire" today may go out of fashion. 

Then again, where are some areas--empirical legal studies is one of them--where there's a lot of great work to be done and that are sure to stay hot for a long time.  We're finally turning to data to help solve some questions.

So look closely at "hot" topics--they may be great or perhaps not.

Endnote: The image of the sun is from our friends at NASA.

Alfred L. Brophy
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September 18, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Monday, September 17, 2007

Bell and Parchomovsky on Reconfiguring Property in Three Dimensions

Abraham Bell (Bar Ilan and Fordham) and Gideon Parchomovsky (Penn) have posted Reconfiguring Property in Three Dimensions on SSRN.  Here's the abstract:

In this Article, we demonstrate that every property question invariably involves three distinct dimensions: (1) the number of owners, (2) the scope of owner's dominion and (3) asset configuration. Furthermore, we claim that the interplay among the three dimensions shapes the field of property and holds the key to understanding the deep structure of property law. On this view, property law is a balancing act that requires policymakers and private actors to constantly juggle the often-conflicting demands lying along these three dimensions.

The three-dimensional account of property we develop in this Article has important descriptive and normative implications. Descriptively, we show that property law accommodates conflicts by using as many as six different strategies to maximize efficiency over the three dimensions. Furthermore, we demonstrate that all property doctrines fall under one of the six strategies we enumerate. Accordingly, the Article offers a coherent and comprehensive descriptive account of the field.

Normatively, our three-dimensional approach offers a wide array of new policy responses to property challenges. It suggests that every property challenge may be addressed on any one (or more) of the three dimensions. This opens the door to new proposals for resolving such diverse long standing property challenges as managing property rights in tribal land and conservation properties, optimizing access to coastal land, and regulating environmental liability and intellectual property.

I heard Avi Bell give a version of this paper a few months ago, and it is very interesting.  Yet another in the Bell-Parchomovsky series of great articles on property theory.

Ben Barros

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September 17, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Fischel on Miller v. Schoene

BE Press's on-line Review of Law and Economics has published William A. Fischel's The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene.  Here's the abstract:

Miller v. Schoene approved the uncompensated destruction of cedar trees that were alternate hosts to a fungus that damaged apples but not cedars. Supreme Court Justice Harlan F. Stone’s opinion noted that deciding for either cedar or apple growers would amount to action by the state. Scholars have claimed that Miller marked the demise of the public/private distinction in constitutional law. This article presents historical evidence to the contrary. A widely-accepted standard—higher commercial value—commonly decided whose interests should prevail in such controversies. The analysis also shows that moral hazard explains why cedar owners were denied just compensation, which orchardists had originally been willing to tax themselves to pay. Cedar owners whose land actually gained in value when their trees were cut down nonetheless availed themselves of damages.

I read a version of this article a few months ago, and, like all of Fischel's work, it is outstanding.  If you are interested in regulatory takings, this is a must-read.

Ben Barros

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September 17, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Yale Pocket Part on Regulatory Takings

The Yale Law Journal's Pocket Part has a series of three posts on compensation for partial regulatory takings -- that is, those regulations that reduce property values, and that are the target of ballot initiatives like Oregon's Measure 37.  The posts are Hannah Jacobs Wiseman, Partial Regulatory Takings: Stifling Community Participation Under the Guise of Kelo Reform; Harvey M. Jacobs, New Actions or New Arguments over Regulatory Takings?; and Ilya Somin, Why Robbing Peter Won’t Help Poor Paul: Low-Income Neighborhoods and Uncompensated Regulatory Takings.

Ben Barros

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September 17, 2007 in Takings | Permalink | Comments (1) | TrackBack (0)

Machu Picchu Artifacts Headed Back to Peru

MachupicchuWe've been following this one for a while and here.  Now the New York Times is reporting (thanks to Carl Christensen of the University of Hawaii Law School for bringing this to our attention) that Yale and Peru have reached an agreement to repatriate some Machu Picchu artifacts that were brought to New Haven by Hirman Bingham.  Highlights from the story:

For several years Yale had argued that it had returned all borrowed objects in the 1920s, retaining only those to which it had full title. Yale proposed dividing possession of the artifacts. But negotiations between the university and the administration of President Alejandro Toledo, who was in power from 2001 until July 2006, broke down, and Peru threatened last year to go to court.

On Friday night Yale officials and a Peruvian delegation that traveled to New Haven signed a preliminary agreement that would return title to Peru of more than 350 artifacts — ceramics and metal and stone objects — that are considered to be of museum quality and several thousand fragments, bones and other objects considered to be primarily of interest to researchers.

The agreement, which establishes an extensive collaborative relationship between Yale and Peru, provides for an international traveling exhibition. Admission fees will be used to help build a new museum and research center in Cuzco, the city closest to Machu Picchu. The museum, for which Yale will serve as adviser, is expected to be completed in 2010....

The objects were excavated almost a century ago by Hiram Bingham III, a charismatic professor, aviator and later senator who is credited with the modern discovery of Machu Picchu, which he stumbled upon while looking for another archaeological site. Before his arrival the Inca complex had been known to only a few local farmers around Cuzco. Bingham struck deals with the government at the time to allow him to send objects back to Yale that he had excavated from about 170 tombs at the site.

Dedicated propertyprof readers will recall that we've much interested in Hiram Bingham's grandfather's writings about early Hawaii's property law.

Much to talk about here; shades of the Elgin Marbles and of Imperialism, Art, and Restitution.  The public domain image of Machu Picchu is from our friends at wikipedia.

Oh, and happy 220th anniversary of the Constitution, too!

Alfred L. Brophy
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September 17, 2007 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 16, 2007

Klick and Sitkoff on Hershey Trust

Jonathan Klick and Robert Sitkoff have recently posted an exciting paper on the cost of the 2002 injunction that prevented the Hershey Trust's sale of its controlling interest in the Hershey Chocolate Company, "Agency Costs, Charitable Trusts, and Corporate Control: Evidence From Hershey’s Kiss-Off," on Harvard's Olin Center Faculty Discussion Paper Series.  It's coming soon to the Columbia Law Review, I understand.

Their abstract reads:

 In July of 2002 the trustees of the Milton Hershey School Trust announced a plan to diversify the Trust's investment portfolio by selling the Trust's controlling interest in the Hershey Company. The Company's stock jumped from $62.50 to $78.30 on news of the proposed sale. But the Pennsylvania attorney general, who was then running for governor, brought suit to stop the sale on the grounds that it would harm the central Pennsylvania community. In September 2002, after the attorney general obtained a preliminary injunction, the trustees abandoned the sale and the Company's stock dropped to $65.00. Using standard event study econometric analysis, we find that the sale announcement was associated with a positive abnormal return of over 25 percent and that canceling the sale was followed by a negative abnormal return of nearly 12 percent. Our findings imply that instead of improving the welfare of the needy children who are the Trust's main beneficiaries, the attorney general's intervention preserved charitable trust agency costs on the order of roughly $850 million and prevented the Trust from achieving salutary portfolio diversification. Overall, blocking the sale destroyed roughly $2.7 billion in shareholder wealth, reducing aggregate social welfare by preserving a suboptimal ownership structure of the Hershey Company. Our findings contribute to the literature of trust law by supplying the first empirical analysis of agency costs in the charitable trust form and by highlighting shortcomings in supervision of charitable entities by the state attorneys general. Our findings also contribute to the literature of corporate governance by measuring the difference in firm value when the Hershey Company was subject to a takeover versus under the control of a controlling shareholder.

Paper here and it's also on ssrn here.

Among Klick's and Sitkoff's findings: the injunction cost the trust $850 million and led to $2.7 billion in lost shareholder value.  (That equates to about $62,000 per Hershey employee).  That leads to important questions about whether the injunction is worth the cost. I hope to talk some more about this important paper sometime soon--once I have working drafts of my papers on Thomas Dew and on Thomas Ruffin.  Close followers of propertyprof will recall that I'm much interested (and intrigued by) the Hershey Trust case.

Alfred L. Brophy
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September 16, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)