Thursday, August 28, 2008

Somin on Constitutional Property Rights

Ilya Somin (George Mason) has posted Taking Property Rights Seriously? The Supreme Court and the 'Poor Relation' of Constitutional Law on SSRN.  Here's the abstract:

Over the last twenty-five years, the Supreme Court has expanded protection for constitutional property rights. After decades of neglect, the Court has begun to take property rights seriously. At the same time, however, protection for property rights still falls far short of that enjoyed by most other individual rights. In case after case, the Court has expressed support for property rights, but stopped short of providing them with more than minimal protection. Despite the Court's own rhetoric to the contrary, property rights are still the "poor relation" of the Constitution.

Part I of this article analyzes the Court's recent property rights jurisprudence. It particularly focuses on the Court's decisions interpreting the Takings Clause of the Fifth Amendment. I examine key decisions on public use, regulatory takings, remedies for takings clause violations, and access to federal courts for citizens who claim that their property rights have been violated. In most of these fields, recent court decisions have modestly expanded protection for property owners. However, the Court's decisions in each area fall far short of giving property rights the same degree of protection as that extended to most other individual rights.

Part II considers some of the standard rationales for denying judicial protection for property rights equal to that enjoyed by other constitutional rights. It addresses claims that property rights deserve little or no protection because they are already protected by the political process, because the courts lack expertise on economic issues, because judicial protection would benefit the rich at the expense of the poor, because the Courts should not enforce supposedly arbitrary common law property baselines, and because judicial protection for property rights might harm the environment. I suggest that each of these concerns is overstated, and that many apply with equal or greater force to the enforcement of other constitutional rights. Moreover, expanded judicial protection for property rights might actually benefit the poor more than the wealthy and may in some important cases promote environmental protection rather than diminish it.

Finally, Part III briefly considers the future of constitutional property rights. In the long run, judicial protection for property rights can only be effective if it is embraced by jurists from a broad portion of the political spectrum. Property rights probably will not get much more judicial solicitude than they enjoy today if support for them remains confined to judicial conservatives and libertarians. Outside the Court, some liberal jurists and activists have shown an increasing willingness to reconsider traditional post-New Deal hostility to property rights. The strong left of center reaction against the Court's decision in Kelo v. City of New London may point the way forward to cross-ideological cooperation on these issues.

Ben Barros

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August 28, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Higgins on Legal Impact of Sea Level Rise

Megan E. Higgins (Roger Williams) has posted Sea Level Rise Impacts on Beaches and Coastal Property on SSRN.  Here's the abstract:

The causes of sea level rise; the impacts to beaches and coastal property; state responses to changes in sea level; the legal implications of existing sea level rise policies; outstanding legal issues; and potential solutions will be addressed.

Some coastal states have been proactive in anticipating sea level rise while others are now drafting policies that incorporate predicted changes. Litigation is more common as regulatory and resilient responses call into question Fifth Amendment takings claims. Unanswered legal questions remain as sea levels rise and climate continues to change; population of coastal communities grows; beaches are lost; and coastal properties infringe on public access as the shoreline shifts inland. Are rolling easements effective when homeowners are required to retreat based on setbacks determined by the mean high tide line? What is the effectiveness of erosion rate setbacks versus renourishment? Should there be a standard setback line (e.g., vegetation line)? What are the implications for property rights advocates? Who has the burden of proof? What constitutes a public nuisance regarding encroachment in dunes/beachfront area?

There are a number of potential solutions for addressing sea level rise: create setbacks; rolling easements; prevent armoring; financial inducements to move homes; encouraging elevation or employing new construction techniques; and purchasing federal flood and wind insurance. However, when property lines along the coast are determined by the ocean, something that is far beyond the control of the respective state's courts, the future of sea level rise litigation remains uncertain.

Ben Barros

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August 28, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Smith from Yale to Harvard

Brian Leiter reports that Henry Smith is moving from Yale to Harvard.

Ben Barros

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August 28, 2008 in Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2008

Fernandez on Pierson v. Post

Angela Fernandez (U. Toronto) has posted The Lost Record of Pierson v. Post, the Famous Fox Case on SSRN.  Here's the abstract:

Pierson v. Post, the famous fox case, has been reproduced in countless law school casebooks and written about endlessly in law review articles. A surreal air has hung around the case, in large part because scholars interested in it could access little more than what appeared in the reported appellate case at the New York Supreme Court in 1805, the rarefied "high law" in the case. Any documents setting out what happened at the lower court level were presumed lost. The judgment roll has now been found and is being made available to scholars for the first time. This article is a report on the discovery of that lost record and an introduction to the record highlighting the new information it gives us about the case. This is the "low law" we knew nothing about, specifically, the account of Post's jury trial before a Justice of the Peace, the amount of money he was awarded, and the grounds of Pierson's appeal. The new record does not answer all the questions we might have about this famous case. However, it provides much in the way of important new information that was previously unavailable to those with an interest in the case.

Ben Barros

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August 27, 2008 in Personal Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Historic Preservation of Brutalist Architecture, With a Bonus RLUIPA Angle!

NPR has a great story about controversies arising out of the landmarking of a D.C. church that is an important example of Brutalist architecture.  An excerpt:

In Washington, D.C., about two blocks from the White House, there's a Christian Science church that looks more like a concrete fortress than a house of worship. The Third Church of Christ, Scientist — or the Third Church — is a hulking mass of raw concrete. There's one window, no steeple, and its bells are suspended from a slab of concrete that juts out from the side. . . .

The building was designed by Araldo Cossutta, who worked with I.M. Pei. It is a classic example of Brutalism, which was popular in the 1950s and 1960s but fell out of favor in the 1970s.

The concrete was poured on the spot, leaving a 60-foot-tall bunker that is hard to heat and harder to cool.

With eight sides of nearly identical concrete and a tucked-away entrance, it's also nearly impossible to find your way inside. . . .

In 1991 — unknown to the church's members — a group of preservationists applied to have the Third Church designated a historic landmark. From that moment, the congregation couldn't touch the building. Last year, the city made it an official landmark, and now the Third Church is suing to have the status removed.

Kirkpatrick says the restrictions infringe on their freedom of religion.

"Nothing expresses a church's religious exercise more than its architecture. And this architecture does not express our theology and our exercise. Brutalism is not our religious expression," he says.

Ben Barros

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August 27, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2008

Barros on Toward A Model Law of Estates and Future Interests

I've posted my most recent article, Toward a Model Law of Estates and Future Interests, on SSRN.  Here's the abstract:

The American law of estates and future interests is tremendously complex. This complexity is unjustifiable because it serves no modern purpose. Many of the distinctions between types of interests in the current system of ownership are vestiges of ancient English feudal concepts and owe their place in the law solely to historical accident. This article develops a proposed model law designed to simplify and modernize the basic property ownership system. The proposals made here differ substantially from prior suggestions for legislative reform, and reflect issues of enactability and retroactivity that previously have been neglected in the literature. The article both builds on and critiques the recently-released preliminary draft of Division VII of the Restatement Third, Property (Wills and Other Donative Transfers), and explains why a model law will be more effective than a Restatement in achieving modernization and reform of the estates and future interests system.

Comments of any sort would be welcome.

Ben Barros

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August 24, 2008 in Recent Scholarship | Permalink | Comments (4) | TrackBack (0)