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Univ. of Kentucky College of Law

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Friday, February 9, 2007

Alix-Garcia on Common Property Deforestation

Jennifer Alix-Garcia (University of Montana, Dep't of Economics) has posted A Spatial Analysis of Common Property Deforestation on SSRN. Here's the abstract:

This paper develops and tests a theory of common property deforestation over space. The model examines both the spatial distribution of forest loss and the total amount of deforestation within a given community, showing how these outcomes are jointly determined. We estimate the
equations of the model in a four step process using data from 318 Mexican common properties. In contrast to previous deforestation theories, we find that the allocation of deforestation across space is dependent upon both the absolute and relative quality and location of each hectare land in the same community and on the overall deforestation decision of the community. Simultaneously, total deforestation depends upon the value of deforested land, which is determined by its physical attributes, as well as the characteristics of the community that affect its collective choice problem. Smaller group size, higher secondary education, and greater inequality are associated with lower deforestation.

Ben Barros

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February 9, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Nadler and Diamond on Kelo

Janice Nadler and Shari Seidman Diamond (Northwestern University Law School) have posted Government Takings of Private Property: Kelo and the Perfect Storm on SSRN. Here's the abstract:

In Kelo v. City of New London, the U.S. Supreme Court ruled that governments are permitted to use the power of eminent domain to force the sale of private property for the purpose of promoting economic development. The decision provoked an unusually widespread popular reaction of outrage. In this chapter, we document the extreme public reaction to Kelo, which cut across political party, race, gender, and education. We focus on the rift between the public's expectations about the circumstances under which government should be permitted to take private property, on the one hand, and eminent domain law, on the other. The Supreme Court has long interpreted the “public use” requirement of the Fifth Amendment quite loosely, but for many decades this went mostly unnoticed by the general public until the Supreme Court declared in Kelo that taking homes for the purpose of economic development satisfies the public use requirement. The Kelo decision seemed to trigger a sudden collective recognition of the Court's public use doctrine, and in this chapter we explore the possible reasons for this change.

Ben Barros

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February 9, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (1)

Wednesday, February 7, 2007

Hypothecating Kidneys

Over at the CoOp, Nate Oman has an interesting post on granting security interest in human body parts.

Ben Barros

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February 7, 2007 in Property Theory | Permalink | Comments (1) | TrackBack (0)

Teaching History and Theory in First Year Property

I love both the history and theory of property, but struggle with how deeply to cover them in first-year property.  I was reminded of this issue when I was looking through an older study guide for property.  The guide took what I understand to be a traditional approach to covering estates and future interests, focusing in depth on the historical development of the common law from William the Conqueror to the present.  My perception is that few professors still teach the property course in this way; I certainly don't.  Some understanding of the feudal evolution is necessary to understand how our property system works, but I wonder how much.  For example, does it really add anything to student understanding to know that executory interests were first allowed by the Statute of Uses?

On both history and theory, I tend to think that they should only be included in first-year property to the extent that they help student understanding of the basic legal covered in the property course.  I wonder, though, whether there are basic theoretical and historical issues that are important enough to cover for their own sakes, regardless of the degree to which they help student understanding.  On the theory side, for example, there is a good case to be made that all students should understand the basics of externalities and the property rule/liability rule distinction, regardless of their exact tie to the subject matter in the property course.  I think that both help tremendously in understanding nuisance doctrine, especially nuisance remedies, but I think I could make a case for including them even if I didn't cover nuisance in the course.

Thoughts?  Opinions?

Ben Barros

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February 7, 2007 in Property Theory, Teaching | Permalink | Comments (2) | TrackBack (0)

Monday, February 5, 2007

Power on Limitations on Land Use Controls

Garrett Power (University of Maryland School of Law) has posted Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions - 2007 Edition on SSRN.  Here's the abstract:

Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2007) is electronically published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in Land Use Control and Environmental Law courses. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text consists of non-copyrighted material and professors and students are free to use it in whole or part. The author requests that any corrections or suggestions be sent to him at this address: gpower@law.umaryland.edu

The readings provide an historical context, and an up-to-date focus on many of the constitutional questions that face today's Supreme Court: the “regulatory taking' issue; the “navigability” boundary on federal power; the “public use” limitation on eminent domain; the balance between property rights and First Amendment liberties; the “essential nexus” between government prohibition and purpose, and; the fine line between taxation and expropriation.

As the table of contents indicates, the 100 odd cases have been grouped into 28 sessions. Most sessions consist of four or five tightly-edited cases, and the related statutes, if any. Each session is intended to provide an assignment appropriate for a 50 minute class discussion. The compilation is approximately 700 pages in length. It will be up-dated annually.

Ben Barros

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February 5, 2007 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Klemme on Takings and Substantive Due Process

Howard C. Klemme (University of Colorado School of Law) has posted Takings, Substantive Due Process, and the Regulatory Roles of Government on SSRN.  Here's the abstract:

As described in the Author's Note, this recently completed book is an in-depth analysis of the law of what constitutes a compensable taking and how that law relates (along with its history and rhetoric) to the law of substantive due process. While that analysis focuses primarily on so-called “regulatory takings,” it also considers other forms of takings, for example, those that may occur when governmental employees cause injury to private property while engaging in tortious conduct.

The book is intended to serve as a comprehensive research tool for students, lawyers, judges, land use planners, and others who may be interested in the law of compensable takings, including those who may have a special interest in its history or rhetoric, such as political scientists, economists, historians and rhetoricians. Most takings and related substantive due process decisions of the United States Supreme Court are analyzed, as are many state court decisions, many of which prove to be of far more significance than most of the Supreme Court's decisions. Indeed, except for the law of takings as it relates to utility rate regulation and rent control, nearly all the present-day law of takings, including its confused and confusing substantive due process rhetoric, have been created (or invented) by state courts. Surprisingly little is the original work of the United States Supreme Court.

Of the book's ten chapters, only the book's foundation chapters, Chapters I, II, and V, accompany this abstract. Following the broad overview presented in Chapter I of the book's research, analyses, and principal conclusions, Chapter II describes in greater detail the three regulatory roles of government - prevention, redistribution, and that of encouraging the exchange or sharing of privately owned resources - that are most likely to be relevant when trying to decide whether a particular governmental regulation or its application, or any other form of governmental action or inaction constitutes a compensable taking.

In terms of legal analysis, the book's two most important chapters are Chapters IV and V. Though it does not accompany this abstract, Chapter IV expands the analysis presented in Chapters I and II and demonstrates from several different perspectives how, on a principled basis, it is possible to distinguish between governmental actions or inactions that constitute compensable takings and those that do not. In most instances, that process involves using the "involuntary Good Samaritan test" of takings (as I have denoted it) to identify which regulatory role (or roles) the government was exercising when it adopted or applied a particular regulation or undertook other regulatory action. The resulting conclusion answers the question of whether a compensable taking has occurred. The purpose of Chapter V, the book's single most important chapter, is to demonstrate and explain how, and why, that process and test reflect so well the underlying policies of the takings clause, its language and its history of nearly eight hundred years.

Ben Barros

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February 5, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, February 4, 2007

What'cha lookin' at?

All-Seeing Eyeball from Emerson's Journal

That's a question we used to ask when I was growing up. 

I'm blogging a lot less these days, slouching towards an extended bloggatical, as I'm finding teaching and writing ever more time consuming.  Hence the non-substantive nature of this post.  But it's super bowl Sunday, so perhaps we can be excused.  And perhaps I shall someday return to talking about recent scholarship I've enjoyed.

Did you know that you can check out sitemeter to see what drives traffic here?  That's an entertaining (sort of) pastime; well, ok, it doesn't compare to some parlor games we play in Tuscaloosa, nor to listening to the Ann Coulter Talking Doll.  I saw recently that someone arrived at propertyprof with this google search "alabama song of the south" meaning--and that led to this post on conservative songs related to property.  It's one of my favorite posts.  At the end of it I mentioned that two other songs that deserve some extended commentary are Alabama's Song of the South and the Five Man Electrical Band's Signs.  Had completely forgotten about this, but I thought that a couple of lines from Song of the South might be in order.

Well somebody told us wall street fell
But we were so poor that we couldn't tell.
Cotton was short and the weeds were tall
But Mr. Roosevelt's a gonna save us all.

Well momma got sick and daddy got down.
The county got the farm and they moved to town.
Pappa got a job with the TVA
He bought a washing machine and then a Chevrolet.

Fred Wright employed that as an epigram for his Alabama Law Review Note on mortgage foreclosures during the New Deal.  Check it out. 

Perhaps another day we'll talk a little about "Signs." ....

Couple of side notes here.  How do you like the walking eyeball, from Emerson's journal, describing the eyeball that sees everything?  That reminds me, I need to talk about Emerson's property lawsuit sometime. 

Brophy

February 4, 2007 in About This Blog | Permalink | Comments (0) | TrackBack (0)