PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, February 2, 2008

Ceded Lands in Hawaii

In 1893, the government of the Kingdom of Hawaii, a constitutional monarchy, was overthrown by a group of mostly American planters and businessmen, supported by a contingent of U.S. Marines.  The revolutionaries subsequently established the Republic of Hawaii and entered into negotiations with the United States to seek Hawaii's annexation.  When Hawaii was annexed by the United States in 1898, the Republic of Hawaii ceded the public lands of Hawaii to the United States.  When Hawaii became a state in 1959, the United States conveyed more than a million acres of land this land to the new state, to hold in trust for five specified purposes, including "the benefit of native Hawaiians."  This "Ceded Lands Trust" is analogous to the school lands trusts established in the admission acts of most states admitted to the Union after about 1820.  Earlier this week, the Hawaii Supreme Court held that the State cannot convey lands from the Ceded Lands Trust to private parties until the claims of Native Hawaiians to these lands have been resolved.   Newspaper articles on the case can be accessed here and here. The opinion itself, Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, can be accessed here (careful; the file is enormous). 

Carl Christensen
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February 2, 2008 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Advice to Law Journals, Part 23

23  subsidize the journal (with academic credit).

One of my colleagues uses the wise phrase "if you subsidize something you'll get more of it."  I think applies well to lots of situations, including law reviews.  Want students to spend more time running the journal and producing an excellent work product?  Give them more academic credit for it.  This has received some attention of late over at Leiter Reports.  A few years ago at Alabama we increased the credit hours that the editor-in-chief and managing editors received for running the law review here, to a total of six hours.  My strong preference is for even more credit; I think the time they spend working on the journal justifies that.  It also gives a great incentive to students to take the review seriously.  My sense at the time that it was in line with the credit that the leaders of a lot of other flagship journals received.

ALB
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February 2, 2008 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 29, 2008

Propertyprof's Lunch with James Krier

I'm experimenting with some new "voices" for blogging.  This one's going to be written in Wall Street Journal Law Blog style.  We'll see how it goes.

Propertyprof blog had the pleasure of lunching with James Krier recently.  (He's visiting at Alabama this semester. Roll Tide!)  Yes, there's reason to be jealous; he's just as interesting (perhaps even more so) as you'd suspect from his casebook.  Like many other property professors, much of what propertyprof knows about property is influenced by his book.  Our students are most fortunate to have him and he's helping all three propertyprofs here to get better.  Our students are blogging about him, too

Propertyprof asked about the inclusion of cases.  Why, for instance, doesn't Dukeminier and Krier include The Antelope?  And when the conversation turned to cases that are in the book, why does the book include our less favorite cases, like Schwartzbaugh v. Sampson?  Well, propertyprof knows that some people find Schwartzbaugh a good teaching device.  But Krier's answer?  "Don't teach it, if you don't find it useful."  Ah, what great advice.  Where propertyprof tends to treat the casebook as our students treat cases more generally (as some form of deity), Krier says make your own way.  How Emersonian!

And then on a recent morning, Krier's advice: teach what you think is important.  Very sage advice.  We'd say that whether or not we thought Krier, like his book, some form of diety.

ALB
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January 29, 2008 in Law Schools | Permalink | Comments (0) | TrackBack (0)

The Current State of Post-Kelo Eminent Domain Reform

Over at the VC, Ilya Somin has a post linking to the latest version of his paper on post-Kelo eminent domain reform.  The post also discusses the public's lack of knowledge about eminent domain issues:

In the SCG's 2007 Saint Index survey, conducted last August, only 21% of Americans could correctly answer a question about whether or not their states had enacted post-Kelo eminent domain reform, and only 13% could both correctly answer that question and a follow-up question about whether or not their state's reform law was likely to be effective in curbing economic development takings. Public ignorance about post-Kelo reform - like opposition to Kelo itself - cuts across racial, ethnic, gender, ideological, and partisan lines.

Ben Barros

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

Monday, January 28, 2008

Lehavi on Property and Community

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted How Property Can Create, Maintain, or Destroy Community on SSRN.  Here's the abstract:

Property law plays a crucial role in the ability of groups, especially ones composed of geographically-adjacent members, to establish and maintain significant forms of "community" around a social, economic, or ideological shared interest. Property may also have, however, the opposite effect of undermining or even destroying communities, particularly those relying on fragile modes of cooperation.

This paper identifies three major types of territorial communities: (1) Intentional Communities - closely-knit groups that initially organize around a consolidating non-instrumental idea (such as cooperative Kibbutzim or religious communes) and employ sweeping internal norms to validate their commonality. (2) Planned Communities - comprised mostly of residential developments of homeowners associations, which rely on a formal set of conditions, covenants, and restrictions incorporated in the association's governing documents. (3) Spontaneous Communities - clusters of initially unorganized neighbors who succeed in cooperating and coordinating over time. The evolvement of such organizations may be essential to the creation of an interpersonal "social capital" and to a physical and functional improvement of the community's surrounding.

For each one of these types of communities, property law plays a very different role. Thus, while Intentional Communities do not hinge strictly upon the existence of a supportive property system to sprout, Planned Communities cannot be conceived without the security of an overt formal state-backed regime, whereas Spontaneous Communities may often need property law's affirmative backing (providing what I term "Property Tail-wind") to thrive and enjoy the social and economic benefits of sustainable collective action

Ben Barros

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January 28, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Barros on Hadacheck v. Sebastian

I've posted Hadacheck v. Sebastian on SSRN.  Here's the abstract:

This short encyclopedia entry discusses Hadacheck v. Sebastian and its relevance to contemporary regulatory takings jurisprudence. The entry describes the Hadacheck litigation and the treatment of Hadacheck in the Supreme Court's more recent regulatory takings cases. It notes four reasons why caution should be used before applying Hadacheck to contemporary regulatory takings issues: (1) the case is ambiguous about the diminution in value actually suffered by the plaintiff; (2) Hadacheck was decided before Pennsylvania Coal v. Mahon, which arguably marked a shift in regulatory takings law; (3) the Court's holding in Lucas v. South Carolina Coastal Council that a total diminution in value is a per se taking undercuts one possible reading of Hadacheck; and (4) that the Court's recent decision in Lingle v. Chevron suggests that the substantive due process analysis in early cases like Hadacheck should not be a part of the regulatory takings analysis.

This really is short, and might be of interest to those of you who teach Hadacheck as part of your takings unit.

Ben Barros

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January 28, 2008 in Recent Scholarship, Takings | Permalink | Comments (2) | TrackBack (0)

Monday Roundup: Federalist Society Panels and Harvard's Atlantic World Seminar

Let me roundup a couple of things propertyprofs might care about this morning.  First, two panels from the Federalist Society's Tenth Annual Faculty Conference:

"Post-Kelo Reform"  with Vanderbilt's James Ely, Northwestern's David Dana, George Mason's Steve Eagle, Yale Law Olin Fellow Dan Kelly, and George Mason's Ilya Somin, as moderator.

And while this isn't quite property, it is prof related:

"American Law Schools: Envy of the World or General Motors Before the Fall?"  with Colorado's Paul Campos, San Diego's Maimon Schwarzchild, Emory's George Shepherd, Boston College's Dean John Garvey, Washington & Lee's Dean Rodney Smolla, and Judge Frank Easterbrook, as moderator.  It's an interesting discussion and, as you might expect, lots of talk about the market and regulation.  I think the moderate and balanced tone of Deans Smolla and Garvey are particularly welcome.

Also, this is where I would be on April 28 if my schedule permitted it:

People and the Land in the Atlantic World, 1500-1825

A Workshop of the Atlantic History Seminar

Harvard University April 26, 2008

This one-day Workshop will examine the practices and theories of people’s engagement with the land: the forms and consequences of land distribution in conquered territories; the different meanings of possession, tenancy, and usufruct; the conflicts among and transformations in European concepts and practices of land management in the Americas; the passion of individual Europeans for free ownership of land in the Americas; and the role of available land overseas in Britain's "Great Divergence." Scholars with an expert knowledge of the field will discuss aspects of the topic; each presentation will be followed by general discussion. The Workshop will include lunch and a reception following the final session.

Attendance at the Workshop and participation in the discussion are open to the academic community. Historians at the beginning of their careers are especially encouraged to attend. Travel and accommodation expenses will be the responsibility of attendees, though the Workshop can provide local lodging information. Pre-registration is required.

More information is available at the conference's website.

ALB

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January 28, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)