Friday, October 31, 2008

Can't Avoid Stambovsky, Especially On Halloween

800pxhalloweenwitch As regular readers know, I really don't like Stambovsky v. Ackley, the famed haunted house case.  So starting last year, I cut it out of my coverage of real estate transactions in first year property.  But many of my students read it anyway, and they rebelled.  So we had some fun discussing it.  And I suppose that I really couldn't avoid it teaching it today of all days.

Ben Barros

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October 31, 2008 in Real Estate Transactions, Teaching | Permalink | Comments (0) | TrackBack (0)

Villazor on Blood Quantum Laws

Rose Cuison Villazor (SMU) has posted Blood Quantum Land Laws and the Race Versus Political Identity 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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October 31, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 29, 2008

Bell on Regulatory Takings

Abraham Bell (Bar Ilan/University of Connecticut) has posted Should Decreases in Property Value Caused by Regulations Be Compensated? on SSRN.  Here's the abstract:

This Essay attempts to determine the correct regulatory takings compensation policy given the general doctrinal framework in other bodies of American law. In particular, it addresses the following questions. First, given a compensation requirement for eminent domain, is it sensible to interpret the government's regulatory authority as permitting the elimination of property value without compensation? Second, since regulations often produce benefit as well as harm, how can a regulatory givings be incorporated into a consequentialist analysis of regulatory takings compensation? Should the right of property owners to benefit from capital appreciation caused by regulations without returning the windfalls to the government be interpreted as implying a denial of right to receive compensation where the regulations produce adverse effects? Third, given the likelihood that overlapping regulations will produce both benefit and harm for property owners over time, should land use regulations remain uncompensated in light of the probability of a future or past beneficial land use regulation? Fourth, in light of the ubiquity of ad valorem property taxes, should regulations that adversely affect property be seen as implicitly accompanied by compensation given that a reduction in housing values will lead to lower tax payments just as an increase in property prices caused by a public action will increase tax liabilities for property owners?

The findings of the Essay may be summarized as follows. The case for takings compensation is far from perfect, and serious arguments can and have been made against compensation. However, once compensation is a required accompaniment to eminent domain takings, it is extremely difficult to draft a cogent argument for ruling out compensating for regulatory takings in general. Adding consideration of givings and taxes to the picture further demonstrates the problematic nature of much of the law of takings, but does not make a compelling case against compensating for regulatory takings.

Ben Barros

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October 29, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (1)