Friday, November 2, 2007

Alexander and Penalver on Properties of Community

Greg Alexander and Eduardo Penalver (Both of Cornell Law School) have posted Properties of Community on SSRN.  Here's the abstract:

Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of property, empowering, and, under the right circumstances, compelling the state to take from some in order to safeguard access to needed resources for others.

Ben Barros

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November 2, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 31, 2007

Providing Homeless People Places to Sleep

I recently taught in my Property I class laws that restrict the ability of homeless people to sleep in public places. I use Joe Singer's casebook, which devotes a small section on the "right to be somewhere and the problem of homelessness" (pages 173-176). That section in particular examined Pottinger v. City of Miami, which resulted in, among other things, the creation of "safe zones" for homeless people because they had no alternative shelter.

The class discussion we had about the tension between the right to exclude versus the right of access in the context of the problem of homelessness was one of the best discussions we've had so far this semester. Many students were bothered by the criminalization of being homeless as a result of local ordinances that prohibit acts such as sleeping in public. These students believe that homeless people should continue to have a right of access to public areas, at least for purposes of sleeping.

Today, the NY Times reported that the City of Los Angeles has decided to settle a case brought by the ACLU against the enforcement of the city's ordinance that makes sitting or sleeping on the streets illegal. The 9th Circuit held in Jones v. the City of Los Angeles in April 2006 that enforcement of the ordinance is tantamount to cruel and unusual punishment. The recently agreeed settlement reached between the city and the ACLU resulted not only in the decision by the city to not appeal the 9th Circuit case's opinion but also the provision of 1,250 low-income housing units.

In my local area (Dallas, TX), a local church has decided to open up its parking lot to homeless people as a place for them to sleep at night (see here for story). Their move has generated complaints from nearby business owners who have said that the presence of homeless people have driven away customers. This conflict raises yet another tension within our private property system - the privilege to use one's property versus the recognition that we can't use our property in ways harmful to our neighbors (again, another theme from the Singer casebook). Until adequate shelter and other services are provided to homeless people, the inherent tensions within our property system will continue to manifest in various ways.

Rose Cuison Villazor

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October 31, 2007 | Permalink | Comments (1) | TrackBack (0)

Another Halloween


Well, it's Halloween and that means it's time for a little fun at propertyprof.  Of course I haven't had time to write a cool post, so I'll use what I used last year.

I'll begin with one of the most amusing law review articles I've ever read: James Gordon's "How Not to Succeed in law School," which appeared in the Yale Law Journal in 1991.  My favorite line among many good ones:

Just to prove that at heart they are really gentle, fun-loving people, professors will occasionally do something a little bit zany, like wear a costume to class on Halloween. This makes the students laugh and cheer. Before you laugh and cheer, however, you should check your calendar. It is often difficult to tell whether a professor is wearing a costume or not.

Of course, propertyprofs all know Stambovsky v. Ackley, 169 A.D.2d 254, 258.  Ah, what a great case.  (You may recall this entry from summer 2006 on psychological defects.)  And, along these lines, you might also enjoy Judith Richardson's book, Possessions, on the haunted landscape in the Hudson Valley.

You might find Gates v. Roberts, 350 S.W.2d 729 (Mo. 1961) of some interest, because it's about adverse possession of a house reputed to be haunted back in the 1930s.  Nice case of squatters establishing a right to a house.

Then, going back a bit further, William Sampson argued to the New York Supreme Court in 1810 that the common law ought to evolve.  He pointed out that a number of states had abandoned English law.  Then he contrasted old, superstitious the common law with the modern, American law.  Those efforts to abolish the old common law would have been in vain,

if ever and again some unsubstantial specter of the common law were to rise from the grave, in all its grotesque and uncouth deformity, to trouble our councils and perplex our judgments. Then should we have for endless ages the strange phantoms of Picts and Scots, of Danes and Saxons, of Jutes and Angles, of Monks and Druids, hovering over us like "ravens o'er the haunted house," or ghosts "That inglorious remain Unburied on the plain."  In vain would this country advance in commerce, this and industry; in vain science and philosophy make their abode among us; in vain propitious heaven designate with a favoring hand our station on the globe, and distinguish us by freedom and prosperity, if we mar our own destiny by such servile adherence.

Never know where images of witchcraft will appear in conjunction with the common law, do we?

Maybe next year for Halloween, I'll link to some ghost stories where property is important.... Then again, maybe I'll try to figure out John Dryden's role in William Sampson's thought....

Endnote:  The image of the St. James Hotel in Selma--which looks like it might be haunted! and is rumored to be (nice article from the Selma Times-Journal, one of our nation's oldest newspapers)--comes from our friends at the Library of Congress' Historic Buildings Survey, conducted during the 1930s.  Check out their website for some great photographs.  They're a source I often use when looking for public domain illustrations for propertyprof entries. 

Alfred L. Brophy
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October 31, 2007 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 30, 2007

Advice to Law Journals, Part 14

Horydczak_theodore This is one I feel really strongly about.

14    allow authors to submit pieces in any way they’d like; don’t limit to expresso or snail mail or email.

Law journals need to get good pieces into their offices in whatever way possible.  It is self-defeating to be limiting the routes they might arrive.  Articles editors--and the deans who provide the financial support for their pieces--ought to accept submissions any way possible, from courier to overnight mail, snail mail, email, and in any format--wordperfect, pdf, word, whatever.  I'm astonished that reviews won't accept submissions via wordperfect through bepress.

Endnote: The Theodore Horydczak image of a row of mailboxes is from our friends at the Library of Congress.

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

Monday, October 29, 2007

Freyfogle on Property and Liberty

Eric Freyfogle (Univ. of Illinois) has posted Property and Liberty on SSRN.  Here's the abstract:

Private property and liberty, particularly in the case of privately owned land, are intertwined more complexly than we commonly realize. When we study how private property operates in daily life, looking at the full array of land-use conflicts, what we see is that private rights backed by state power are as apt to restrict liberty as they are to promote it. To regain the complexity of the situation in human-inhabited landscapes is to see why we cannot start with the idea of liberty, or with any conception of natural rights, and produce a working, morally justified system of private property. To produce such a system, we need to start instead in a much different place, looking to the various ways that private property can foster the common good. Ultimately, lawmakers crafting and updating a scheme of property must choose among the many types of liberty that they want to secure, based on their assessment of the common good. Only after they have done that, choosing among the options, can we see how private property promotes liberty. Liberty, in short, is the product of a private property regime, not a point of beginning to craft such a regime.

Ben Barros

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October 29, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 28, 2007

Advice to Law Journals, Part 13

13    search authors on google before accepting a piece

In this world that respects (with good reason) double blind peer review, we're often led to think we should not investigate an author's background.  There are great, great reasons for double blind peer review.  But as long as we've dropped the pretense of double blind review, there's some good reason to investigate authors before making an offer.  You may be quite surprised by what you find; at least, the students I've worked with have been on one or two occasions.  And, along those lines, it probably makes sense to run some kind of pre-emption check; don't just look up the author, look up the subject matter of the article you're about to accept and live with in one way or another for a while.

Alfred L. Brophy
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October 28, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)