Friday, April 25, 2008

Garnett on Taking Without Touching

Nicole Stelle Garnett (Notre Dame) has posted 'No Taking Without a Touching?' Questions from an Armchair Originalist on SSRN.  Here's the abstract:

This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided well into the nineteenth century to elucidate the meaning of a late-eighteenth-century legal provision. Finally, the paper asks whether the state decisions frequently cited for the "no taking without a touching" principle might have been answering different questions than the modern "regulatory takings" problem.

Ben Barros

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April 25, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2008

Property Panels at Law and Society

Montreal Here is a list of property-related panels for the upcoming Law & Society Conference in Montreal.  If you're aware of a panel or paper that might be of interest to propertyprofs that I've missed, please leave a comment and I'll update this post.

[UPDATE:  Info on several panels added since intial post]

Thursday, May 29 - 8:15am - 10:00am: Property and Poverty 1114

Panel Abstract:

At its most fundamental level property law is presumed to protect our personal and communal connections to the material world: it transforms space into place. And yet property law is also a well-documented instrument of displacement. The history of colonialism is replete with stories of the use of property law to justify and legalize a shift of ownership from one population to another. Even when impoverished and marginalized people succeed in retaining or acquiring legally cognizable interests, these interests are often ultimately undermined by the very same property rules that were presumed to offer protection. This panel will explore the extent to which property law has failed to protect the modest property interests of impoverished and marginalized people, the latent potential within property law to actually shift resources to the poor, and alternative property related strategies to alleviate poverty.

Chair : Sarah Harding (Illinois Institute of Technology)


John A. Lovett (Loyola University New Orleans College of Law), The Winding Road to Recovery: Property Relationships Three Years after Katrina

Bernadette Atuahene (Illinois Institute of Technology), Property Theft and Restitution: The South African People Tell their Story

Nadja Jungmann (Erasmus Universiteit, Rotterdam), Improving the Effectiveness of the Amicable Debt Settlement Procedures

Thomas W. Mitchell (University of Wisconsin, Madison), A Tale of Two Communities: Race and Land Reform in the New Deal

Thursday, May 29 - 12:30pm - 2:15pm:  Status, Anxiety, and Conflict: How Property Law Shapes Relationships between People and Places 1322

Panel Abstract:

This panel will explore how property law impacts interpersonal relationships and the relationships between people and places. The issues that will be discussed include: How does property law shape the status relationships between people? Why does the alienability of certain types of property cause anxiety? How do different groups of people relate to historic properties, and how does that shape preservation law? What can property scholarship and the psychology of place tell each other about how property law impacts people’s relationship with their homes and other places and spaces?

Chair: Gregg Kettles (Mississippi College)


Benjamin Barros (Widener University), Legal Questions for the Psychology of Home and Place

Peter Byrne (Georgetown University), Hallowed Ground: The Gettysburg Battlefield in Historic Preservation Law

Nestor M. Davidson (University of Colorado), Property and Status

Lee Fennell (University of Chicago), Anxiety and Alienability

Thursday, May 29 - 12:30pm - 2:15pm:  Author Meets Reader--"Land Expropriation in Israel: Law, Culture, and Society," by Yifat Holzman-Gazit 1309

Panel Abstract:

Historically, Israel's Supreme Court has failed to limit the state's powers of expropriation and to protect private property. This book argues that the Court's land expropriation jurisprudence can only be understood against the political, cultural and institutional context in which it was shaped. Security concerns and economic pressures, the precarious status of the Court in its early years, the pervading ethos of collectivism, the cultural symbolism of public land ownership , the perceived strategic and demographic risks posed by the Israeli Arab population – all contributed to the creation of a harsh land expropriation legal philosophy. This philosophy, the book argues, was applied by the Supreme Court not only against Arab landowners but against Jewish landowners as well, from the establishment of the State in 1948 until the 1980s. The book concludes with an analysis of the constitutional changes of 1992 and their impact on the treatment of property rights under Israeli law.

Chair: Tehila Sagy (Stanford University)
Author: Yifat Holzman-Gazit (Stanford University)
Readers:  Gregory S. Alexander (Cornell University), Rachelle Alterman (Israel Institute of Technology); Geremy Forman (U of Haifa/Tel Aviv U); Alexandre Kedar (Haifa University); Nimer Sultany (Harvard University)

Friday, May 30 - 10:15am - 12:00pm:  Evolution and Reform of Property Law 2223

Panel Abstract:

This panel will focus on the reform of property law. It will address historical and contemporary mechanisms of achieving property reform, comparing common-law evolution of the law with statutorily-imposed change. It will also address the current need for reform to make property law responsive to the requirements of modern society. Individual papers will argue for the reform of the rules governing estates and future interests, which are unnecessarily complex; for the reform of the remedies imposed for abuse of easements to better achieve consistency, efficiency, and fairness in the law of servitudes; and for the reform of concurrent-interest law to better serve modern needs of people ranging from the intestate heirs of indigent farmers to the owners of a family vacation house.

Co-Chairs: Benjamin Barros (Widener University) & Mark Fenster (University of Florida)


Benjamin Barros (Widener University), The Failure of the Restatements and the Need for Model Laws of Property

Thomas W. Mitchell (University of Wisconsin, Madison), Exit from the Community: U.S. Property Law Reform and the Relevance of Comparative Perspectives

Lee J. Strang (Michigan State University), Damages as the Appropriate Remedy for “Abuse” of an Easement: Moving Toward Consistency, Efficiency, and Fairness in Property Law

Joshua C. Tate (Southern Methodist University), The Writ of Quare Impedit and the Development of English Property Law, 1180-1250

Sarah Waldeck (Seton Hall University), Inheriting the Family Cottage: Real Life Arrangements and the Law of Tenancies-In-Common

Friday, May 30 - 12:30pm - 2:15pm  Local Interaction, Constitutive Community, and the Role of Law: The Place of Identity 2306

Panel Abstract:

Individuals constitute and are constituted by their local communities. This panel’s papers analyze the social and legal dynamics of various types of local places and spaces where the interaction of individuals with one another expresses or actualizes an important aspect of the individuals’ identity, and at the same time constitutes a community that seeks to control and constitutes the site. Formal law and informal norms, visibility, invisibility and performance, and the rhetoric of public and private are among the tools. They may be deployed to create a stable consensus about the local place/space and the identity and status of the individuals who turn to that place/space or physically inhabit it. Or these tools may be used to destabilize, contesting the values expressed by the community and battling over the status and identity of the constituent individuals. Physical place will be contrasted with shared communicative space, and the multiscalar nature of conflicts over local constitutive community will also be discussed.

Chair: Ngai Pindell (University of Nevada, Las Vegas)

Discussant:  Hari Osofsky (Oregon)


Carlos A. Ball (Pennsylvania State University), Privacy, Property, and Public Sex

Robin Paul Malloy (Syracuse University), Opening Neighborhoods to the Mobility Impaired

Marc R. Poirier (Seton Hall University), Ocean Grove versus Ocean Grove

Russell K. Robinson (University of California, Los Angeles), Structural Dimensions of Romantic Preferences

Friday, May 30 - 4:30pm - 6:15pm  Marginalized People, Contested Use, and the Regulation of Space 2504

Panel Abstract:

This panel will explore how local governments respond to marginalized people engaging in controversial activities. The regulatory responses to these activities often lead to sub-optimal outcomes because of the relative powerlessness of the people that engage in them. Thus, local regulation aimed at housing occupied by illegal immigrants reflects the inferior property rights of non-citizens. Regulation of areas where day laborers congregate, even when well intentioned, fails to address either the needs of the laborers or the needs of the community. Regulation of market spaces can stifle the organic development of spontaneous order in heterogeneous market communities. Indeed, one response to market regulation is the development of a sense of community based on outsider status by marginalized people engaged in gray market enterprises.

Chair: Joshua C. Tate (Southern Methodist University)


John C. Cross (University of Mary Washington) and Alfonso Hernandez (Centro de Estudios Tepitenos), Deviant Space and Deviant Communities: The Defense of Alternative Uses of Space in Mexico City

Gregg Kettles (Mississippi College), Day Labor and Public Space

Alfonso Morales (University of Wisconsin)In the Zone: Street Markets and Street Merchants in Socio-Legal Perspective

Saturday, May 31 - 8:15am - 10:00am, Race and Property/Property and Race 3114

Panel Abstract:

This session focuses on the relevance of race to property and vice verse. The participants will explore a range of historical and contemporary problems, specifically the institutional challenges that people of color face in claiming and holding property entitlements. Property is a richly broad area. As such, the panelist will cover a variety of topics, including in human integrity and reputation, intellectual property in a socio-cultural context ; labor, wealth and property ownership. The panelists will explore the boundaries of property and the present disenfranchisement of black people from the various forms of property. This separations is deeply historic and currently persists, contributing to the ever-broadening wealth gap in America.

Co-Chairs: Carol N. Brown (University of North Carolina, Chapel Hill) and Zanita Fenton (University of Miami)


Olufunmilayo Arewa (Northwestern University), Borrowing the Blues: Intellectual Property and African American Music

Carol N. Brown (University of North Carolina, Chapel Hill), Racism's Property Victims: Why Blacks Are Exploitable by Subprime Mortgages

Adrienne Davis (Washington University), The Jurisprudence and Justice of Black Reparations

Zanita Fenton (University of Miami), Reconstruction and Rhetoric: A History of Race, Speech, and Democracy

Saturday, May 31 - 10:15am - 12:00pm:  Roundtable--The Property of the Commons in Question 3231

Roundtable Abstract: 

This roundtable brings together scholars and activists to discuss the way globalized discussions of "the commons" are changing industrial practices of property. Specifically, the contributors are concerned with the transformation of the "commons" in recent years, with the way the term is mobilized to support the extension of globalized capital into local economies, and the consequences of such a re-articulation. Commenting on recent work on the subject, the roundtable members will discuss the precise ways that the "commons" is working its way into mainstream discourses, and, in doing so how it is fundamentally changing the practices of property. Possible points of discussion are: (i) the way "the commons" (both the notion and 'substance') is being appropriated and re-articulated by, among others, the World Bank, (ii) how some scholars' work abet this atrophying of the sense the commons has, (iii) how talk of "access" and "benefit-sharing" reinterpret the commons in a divisible way, and (iv) the relationship of the new mobilization of commons-discourse to new efforts of colonialism. Against this, the roundtable members will also comment on strategies and networks that challenge the appropriation of the discourse, with the aim of collaborating towards a richer understanding of the commons both within law, and without.

Chair: Shiri Pasternak (University of Toronto)
Participants: Nick Blomley (Simon Fraser University), Bradley Bryan (University of Victoria), Deborah Curran (University of Victoria), Geoff Mann (Simon Fraser University)

Saturday, May 31 - 2:30pm - 4:15pm:  Roundtable--Local Administrative Law 3420

Roundtable Abstract: 

Overshadowed by federal and state administrative law, the procedures and institutions of local governments constitute a set of complex doctrines and practices that deserve greater attention. Governing in the shadow of their larger and more powerful partners in the American state, local governments reckon with distinct challenges in their efforts to meet the same core democratic values (including impartiality, accountability, transparency, and deliberation) that challenge federal and state governments. Local governments encounter these challenges under quite different conditions, however, given their limited political authority and resource constraints. Their ability to govern legitimately and authoritatively is also colored by the American political imaginary, which views local governments as both the romantic, Tocquevillean locus of democratic participation and the exploitative site of corruption, segregation, and NIMBY-ism.

In focusing on “local administrative law,” this roundtable session will consider both the pluralism of local governance --- the diverse sources of law that affect municipalities, as well as the diverse practices in which they engage --- and the normative dimensions of bureaucracy and democracy as they play out at the local level. The panelists are engaged in a variety of projects that seek to describe how local administrative law operates on the ground, to suggest reforms that will improve existing procedures and address emerging regulatory issues, and to develop new theoretical models to understand the specificities of local administrative law. They plan to engage with these issues across levels of abstraction, academic disciplines, and substantive legal issues.

Chair: Mark Fenster (University of Florida)
Participants: Nestor M. Davidson (University of Colorado), Lee Fennell (University of Chicago), Ronald H. Rosenberg (William & Mary University), Edward Sullivan (Garvey Schubert Barer)

Saturday, May 31 - 2:30pm - 4:15pm:  Land Rights, Property, and Its Distribution in the Context of Development 3427

Chair/Discussant: Julie Paquin (McGill University)


Hiromi Amemiya (University of Toyama), Customary Land Right and Development Issues in Africa: Case of "Tanzania Village Land Act, 1999”

Bernadette Atuahene (Illinois Institute of Technology), The Legitimacy of Property Rights in the Context of Past Theft

Elizabeth Gianola (University of California, Berkeley), The Legal Construction of Communal Land Rights: The Ghanaian Experience

Jeffrey L. Gower (University at Buffalo, SUNY), Peter J. Kedron (University at Buffalo, SUNY), Rupal Desai (University at Buffalo, SUNY), and Sharmistha Bagchi-Sen (University at Buffalo, SUNY), Political and Economic Contexts of Biofuel Production: A Case of Iowa's Ethanol Industry

Sunday, Jun 1 - 10:15am - 12:00pm  Roundtable--Contestations of Indigenous Property 4221

Roundtable Abstract: 

This roundtable examines various contestations in aboriginal and indigenous claims over property. In particular, it analyzes the role that law and culture play in determining, managing, constructing, and reifying the (limited) rights of indigenous peoples in the U.S., Canada and other parts of the world. The roundtable participants will explore distinct yet overlapping issues affecting indigenous and aboriginal groups’ resources such as land, water, and intellectual property that have found inadequate protection in law.

Chair: Matthew Fletcher (Michigan State University)
Participants: Kate Fort (Michigan State University), June McCue (University of British Columbia), Wenona Singel (Michigan State University)

Ben Barros

Montreal photo from Wikicommons

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

April 23, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2008

Villazor on Blood Quantum Laws

Rose Cuison Villazor (SMU) has posted Blood Quantum Land Laws and the Race Versus Political Dilemma on SSRN.  Here's the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose - to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws, what I collectively refer to as blood quantum land laws, as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law's interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.

Ben Barros

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April 22, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Eagle on Kelo, Directed Growth, and Municipal Industrial Policy

Steven J. Eagle (George Mason) has posted Kelo, Directed Growth, and Municipal Industrial Policy on SSRN.  Here's the abstract:

This article explores trends towards increased local government land use regulation to spur economic development and towards partnering with private redevelopers. It notes that while Kelo v. City of New London has intensified these trends, the use of condemnation for retransfer for private redevelopment endorsed by Kelo is only one tool by which local government advances what the author terms municipal industrial policy. While Kelo expresses confidence in the ability of courts to distinguish between permissible economic development takings primarily for public benefit and impermissible takings primarily for private benefit, the author maintains that any such distinction is illusory.

The article also explores how public choice considerations augur in favor of unnecessary and inefficient condemnations. Finally, it suggests some alternatives that would better effectuate urban redevelopment while avoiding unfair and inefficient exercises of eminent domain. There include greater recognition of fractional property interests, and facilitating owner participation in post-condemnation redevelopment. Other salutary alternatives are localizing neighborhood redevelopment control, and making blight redevelopment open and transparent by replacing condemnation with abatement and foreclosure.

Ben Barros

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

April 22, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Salkin and Lavine on RLUIPA and Federalism

Patricial Salkin and Amy Lavine (Albany Law School) have posted The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and its Impact on Local Government on SSRN.  Here's the abstract:

In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts.

Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom.

Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack.

Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.

Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.

Ben Barros

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April 22, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, April 21, 2008

Is a 26-bathroom Mansion a Single Family Home?

CNN has a story about this pressing question.

Ben Barros

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April 21, 2008 in Land Use | Permalink | Comments (1) | TrackBack (0)