PropertyProf Blog

Ball on Privacy, Property, and Public Sex

Speaking of Carlos Ball, he has posted Privacy, Property, and Public Sex on SSRN.  Here's the abstract:

This Article argues that the constitutional right to sexual liberty should include the right to engage in public sex under certain circumstances. In doing so, the Article contends that the right to sexual liberty should not, as the Supreme Court has held, be site-dependent, that is, its scope should not be limited to sexual conduct that takes place in the home and other private places. The Article reviews the sociological literature on public sex to explain how sexual actors frequently and effectively privatize public sex sites. By analogizing to the privacy protection afforded by the Fourth Amendment, the Article argues that what should ultimately matter in determining the scope of the right to sexual liberty under the Due Process Clause is not where the sex takes place but whether the sexual actors' expectations of privacy are reasonable. In the end, the Article seeks to problematize the seemingly intuitive notion that, in matters of sex and sexuality, the concept of privacy is inextricably linked to geographic sites that are private.

I attended a workshop where Carlos presented an earlier version of this paper.  His discussion of the sometimes private nature of public spaces is particularly interesting.

Ben Barros

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Ball from Penn State to Rutgers-Newark

Brian Leiter is reporting that property prof Carlos Ball is moving from Penn State to Rutgers-Newark.

Ben Barros

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Reprising Hippie Jurisprudence

In light of Orin Kerr's post on Judge Fullam's 1968 opinion regarding the prosecution of a "hippie", it may be time to reprise our post from last summer on hippie jurisprudence.  The post was inspired by an issue of Rolling Stone celebrating the magazine's fortieth anniversary. 

Very close readers of the legal blogosphere may recall that I read Rolling Stone (as a way of keeping connected to my students, although that strategy doesn't work).  This one, however, is different.

First, the on-line version has an interactive map, which I recommend--click on San Francisco and you'll get part of Grace Slick's White Rabbit.

Second, an article by Princeton University historian Sean Wilentz (author of such volumes on the nineteenth century as Chants Democratic and The Rise of American Democracy.) Wilentz locates 1967 as the start of the culture wars: free love & drugs vs. stability.  Locating major trends in American culture in a single year is always hard--though there have been some really successful books built around years (Kenneth Stampp's 1857; Louis Mazur's 1819 immediately come to mind.)  And while I would have emphasized more of the counter-culture and less of the conservative response were I fortunate enough to be writing for Rolling Stone, the essay's well worth a read.

But to return to the story; we're spoken a little bit about aloha jurisprudence.  And now I think we might want to talk a little bit about hippie jurisprudence of property.  "Steal this Book" is a rather depressing account of respect for law and property. But I wonder if there's something more serious that can be done here? Legal historians spend a good deal of their energy trying to find ways to link larger culture to the rhetoric and behavior of judges.  So the question is natural: did judges adopt a language or reasoning style that sprang from the hippies?

In the context of the summer of love (and its wake), one wonders how attitudes towards squatter's rights, for instance, might have changed. (In fact, this issue of Rolling Stone talks a little about squatting--Owsley, the king of LSD, and his wife "now live in Australia forty-five minutes from anywhere on 120 acres of land he claimed by squatting on it like a pioneer.")  Did judges adopt more communal approaches to property or alter the law in ways that might suggest hippies' ideas?  Just so happens I think there may be a few cases from the early 1970s that echo hippie rhetoric. 

Let me suggest a few in particular.  One is about beach access--from the early 1970s.  Then there is U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), which protected hippies from discrimination in food stamps.  I'm not quite sure that's what I'd call hippie jurisprudence, but it grows from a core of values of non-discrimination, which sound rather "hippian."

Then there's the anti-hippie ordinance (which prohibited people from sitting in a park at Carmel-by-the-Sea), which the California Supreme Court struck down in 1971 in Parr v. Municipal Court, Cal.3d 861, 479 P.2d 353 (Cal. 1971).

Actually, a propos of monument law, the ordinance prohibited sitting on public monuments (among other things):

On any public property it shall be unlawful for any person to: * * * ((2)(b)) Climb any tree; or walk, stand or sit upon monuments, vases, fountains, railings, fences, planted areas, or upon any other property not designed or customarily used for such purposes, or to sit on any sidewalks or steps, or to lie or sit on any lawns.

The city argued in Parr that hippies threatened to destroy the community:

Carmel also urges the court to examine the ‘historical context and the conditions existing prior to’ enactment of the ordinance. We hope the court will not shut its eyes to ‘matters of public notoriety and general cognizance.’ We hope the court has seen the instant slum created in the Haight-Ashbury. We hope the court has seen the deterioration if not destruction of the Telegraph-campus in Berkeley; we hope the court has seen the squalor and filth of the communes in Big Sur, and the damage caused by the sheer numbers of this transient phenomenon. The court may be aware that Carmel had become a meeting place-a mecca-for the hippies who had become disenchanted with the Haight-Ashbury and Berkeley. Regarding this ordinance we hope that the court observed the ‘conditions existing prior to its enactment.’ The mass of humanity that occupied the park smothered the grass by their very numbers. The grass competed with and struggled against the overwhelming effect of heavy usage-cigarettes, bottles, knives, and just plain people.

But perhaps the case has more to do with the post-World War II opposition to racial discrimination than with hippies, for the court invoked Justice Murphy's concurrent in Oyama, which invalidated California's Alien Land Law (and it also cited some of Jacobus tenBroek's work on the fourteenth amendment, which similarly drew on the post-war optimism about the broad meaning of the fourteenth amendment's equality principle):

‘The more basic purpose of the statute was to irritate the Japanese, to make economic life in California as uncomfortable and unprofitable for them as legally possible. It was thus but a step in the long campaign to discourage the Japanese from entering California and to drive out those who were already there.’ (Oyama v. California (1948) supra, 332 U.S. 633, 657, 68 S.Ct. 269, 280, Justice Murphy concurring.) In the instant case, it appears that the purpose of section 697.02 is to irritate youthful hippies and to make their existence in Carmel as uncomfortable as possible by closing to them effective use of those public places where they choose to congregate.

It also referred to a three-judge panel's opinion in Wheeler v. Goodman, 306 F.Supp. 58 (D.C. N.C. 1969), which has this memorable phrase from Judge Craven: " A man is free to be a hippie, a Methodist, a Jew, a Black Panther, a Kiwanian, or even a Communist, so long as his conduct does not imperil others, or infringe upon their rights."

I guess if you want to study the central hippie influence on property law, you need to be looking for places where music influenced (or at least correlated with) how people think about property.  So Joni Mitchell's Big Yellow Taxi comes to mind immediately.  (See below for a propertyprof first--a link a a youtube video of Joni Mitchell in concert.)  Propertyprofs should, of course, be familiar with David Callies' similarly titled Preserving Paradise.

Alas, I thought that I might have been the first person to invoke the phrase hippie jurisprudence.  However, Jon B. Hultman beat me to it with a note--amusingly titled--"Administrative  Denaturalization: Is There 'Nothing You Can Do That Can't Be [Un]done'?"--in volume 34 of the Loyola of Los Angeles Law Review in January, 2001.

All of this is pure speculation on my part.  And I stand ready to be corrected.  This has happened before.  When Justice Samuel Alito visited Tuscaloosa last spring I asked him about whether there is any evidence of his judicial restraint and skepticism of extending precedent in his 1975 Yale Law Journal note (previously discussed here--where I suggested some links between Ben Barros' work and Justice Alito's note).  He said flatly, "I don't think so."  End of another intriguing idea for an essay!

I'd be interested if propertyprof readers have any other instances of hippie jurisprudence in mind.

Update: Carl Christensen provides this link to a record with songs from 1971 (the year Parr was decided)--nice samples, too.

And thanks to Bradford Hardin for bringing Orin's discussion to my attention.

Alfred L. Brophy
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Whitman Festschrift

To my pleasure, the Missouri Law Review's festschrift volume for Dale Whitman (volume 72, fall 2007) appeared in my mailbox this morning.  Lots of great articles--though I suspect my favorite will be Dale Whitman's "teaching property--a conceptual approach," which lists ten key concepts:

10. a joint tenancy might be severed by a conveyance by one of the joint tenants, even if the other joint was unaware of the action and did not consent to it.
9.  adverse possession is not a transfer of title from the former true owner, but rather creates a new original title in the adverse possessor.
8.  a future interest is "future" only in the sense that possession under it is deferred until some later time.
7.  restraints on alienation, unlike restraints on use, are widely disfavored and often held unenforceable.
6.  deeds, once delivered, are not ambulatory.
5.  a deed will transfer whatever interest the grantor holds, even if it is a lesser interest than the deed describes, unelss the deed contains language that is inconsistent with a more limited transfer.
4.  recording is not necessary to the effectiveness of a conveyance as between the parties.
3.  possession is often treated as teh equivalent of ownership except as against someone with better title.
2.  servitudes run to successors, on both the benefit and burden sides.
1.  rights in land can be created in a profusion of ways in our legal system.

Lots of wisdom from one of the masters.

Al Brophy

Advice to Law Journals, Part 24

We're nearing the end of advice to law journals....

24 Have some fun. 

Publishing a journal is a ton of work; try to have the experience itself be enjoyable. 

Al Brophy

Epstein on Wealth in Real Property

Richard Epstein (Chicago) has posted How to Create - Or Destroy - Wealth in Real Property on SSRN.  Here's the abstract:

Current legal conceptions of property differ in the private and the public law. The former develops a comprehensive conception that gives full protection for each element in the bundle of rights¿possession, use and disposition¿which allows parties to enter into complex transactions that increase wealth for the parties without prejudicing outsiders. Constitutional doctrine gives strong protection to exclusion, but weak protection to use and disposition, and thus invites a complex range of government strategies that reduce property value, without creating any offsetting gain in third parties.

Ben Barros

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Goldstein v. Pataki

Ilya Somin has a good post at the VC about this interesting Second Circuit case.  An excerpt:

The US Court of Appeals for the Second Circuit recently decided Goldstein v. Pataki, a case challenging the condemnation of homes and other property in Brooklyn for the purpose of transferring them to developer Bruce Ratner, owner of the New Jersey Nets. Ratner plans to use the land to build a new stadium for the Nets, as well as other facilities, including some 2250 new housing units.

Not surprisingly, the Second Circuit upheld the condemnations. Under Kelo v. City of New London, they had very little choice. As I discuss in great detail in this article, Kelo mandates very broad judicial deference to the government in determining whether a condemnation is a genuine "public use" under the Fifth Amendment. Any potential benefit to the general public is sufficient, even if it is greatly outweighed by the project's cost.

The case nonetheless reveals some of the serious shortcomings of Kelo and related precedents. Goldstein v. Pataki is a correct application of Kelo; it is also an example of the sort of abuse that more robust judicial protection of property rights could prevent.

Ben Barros

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