PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Wednesday, February 20, 2008

Advice to Law Journals, Part 25

Littleprince 25 Keep up with work or it will overwhelm you. 

Actually, this is great advice for academic life in general.  And the image I use for this is from the book where I first learned this years ago--the Little Prince, who had to weed the baobabs on a daily basis or they'd overwhelm him.  Make sure you weed your garden (or in his case planet) on a daily basis or it will simply overwhelm you.  Get your cite-checking done on time, read the article submissions, deal with authors, write your note ... whatever it is that needs to be done, do it now.

I had another lesson in this when I began serving as book reviews editor of Law and History Review.  It's a great job, by the way, because it lets you keep up with the latest in the field.  And as service goes, it's pretty great because there's a high intellectual component to the job: matching up reviewers with books--trying to figure out who has a good vantage to review a book. Sometimes I try to use reviewers who have worked in similar records but for a different time period or in a different location or people who work in the same period but ask different questions. And a lot of times, of course, you want a review who's working in exactly the time and record and questions under review.  It's pretty cool.  However, it was immediately apparent to me that it would require tending on a daily basis.  Send the books out, edit the reviews when they come in, get them packaged for the press, read the page proofs....

And so this is the end of my series on advice to law journals.  I started out with 18 or so ideas and added a few along the way, some in response to readers--so that it grew to 25 pieces of advice.  I hope it's been of some use.  Though I do wonder, because some anonymous "top twenty law review editor" recently asked Eugene Volokh for some advice.  The editor wondered if it would be a good idea to require all submissions electronically.  I continue to think that law reviews should do everything they can to get scholarship in the door.  It's a bad idea to limit the ways articles will come in.  That puts the convenience of the editors above the good of the journal.  Alas, it's hard to tell law review editors this.  After all, they're in training for hierarchy and right now they're on the top of the pyramid.  (This ought to be the subject of another piece at some point.)

This is an ending of another sort as well, for I shall be giving up my position as faculty adviser of the Alabama Law Review at the end of this academic year.  It's been a huge pleasure and honor to work with the students for six years--and for six years at the Oklahoma City University Law Review before that.  I shall miss the law reviewers.  It's a great pleasure to work with people who're so smart and dedicated and are excited about writing their first piece of serious scholarship.  I think one of the reasons that faculty members often appear so youthful is that they have the good fortune to spend so much time around enthusiastic students; the students keep us young.

I'm also going to be posting here less frequently than I have for a while (I know, I know--how will the world survive?!)  For one thing, now that I've started reposting stuff I've done before. That's a sure sign that I've reached the end of my usefulness here.  You know it's time to find a new friend when you start telling the same stories and I think the same is true for blogging.

I am also committed to finishing University, Court, and Slave.  So, having said my piece for the time being, I'm only going to be posting intermittently for a while, as I work on my manuscript of University, Court, and Slave.  That's a book about moral philosophy in the old South; I'm interested in the role of slavery and property in the thought of intellectuals in the old South and how those ideas related to what happened in the judiciary.  It's a project that's consumed my life off and on since I entered graduate school in 1992 (with several multi-year detours through colonial legal thought, violence and law in the Jim Cow era, reparations, and contemporary property law) and it's something that I'm thoroughly enjoying working on.  It is relevant right now, because a bunch of schools are going back to revisit their histories with slavery.  A lot of this was inspired, I think, by Brown University's Steering Committee on Slavery and Justice.  That committee was a success and other schools are starting that process of self-investigation.  Moves are afoot at William and Mary, the University of Maryland, and Harvard for similar investigations.  We'll see where they go....

Alfred L. Brophy
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February 20, 2008 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 19, 2008

War and Peace: Art and Cultural Heritage Law in the 21st Century

Warkahead If I could be anywhere on March 4, I'd be at the Cardozo Public Law, Policy, and Ethics Journal's symposium on War and Peace: Art and Cultural Heritage Law in the 21st Century.  The Cardozo Law School website  says:

Cardozo Public Law, Policy and Ethics Journal and The Lawyer’s Committee for Cultural Heritage Preservation are presenting an all-day symposium, on how to prevent looting during times of both war and peace, how to deal with looted cultural material that enters into the international art market, and legal issues related to restitution of art works. Donny George, former director of the Iraq Museum in Baghdad is a presenter.

There's a terrific line-up of speakers:

10:45am  Iraq and Afghanistan
Donny George, former Director General, Iraq Museum; former Chairman, Iraqi State Board of Antiquities and Heritage; Visiting Professor, State University of New York at Stony Brook
Matthew Bogdanos, Colonel, US Marine Corps
Brian Rose, President, Archaeological Institute of America; Curator-in-Charge, Mediterranean Section,
University of Pennsylvania Museum of Archaeology and Anthropology
Patty Gerstenblith, Director, Program in Cultural Heritage Law, DePaul University College of Law

12:00 Lunch

1:30pm  Archaeology in the Americas
Sharon Cohen Levin, Chief, Asset Forfeiture Unit, US Attorney’s Office, Southern District of New York
Terence N. D’Altroy, Professor of Anthropology, Columbia University
Todd Swain, Park Ranger and Special Agent, National Park Service
Robert Palmer, National Park Service NAGPRA Civil Penalties Investigator, Assistant Professor of Behavioral Sciences, Loras College
Sherry Hutt, Manager, National NAGPRA Program, National Park Service

3:15pm  World War II
Lucille A. Roussin, Professor, Cardozo School of Law
Monica Dugot, Director of Restitution, Senior Vice President, Christie’s International
Lucian Simmons, Worldwide Head of Restitution, Senior Vice President, Sotheby’s, New York
John J. Byrne Jr., Founding Partner, Byrne Goldenberg & Hamilton
Howard Spiegler, Partner, Herrick, Feinstein

4:45pm  Summary Session: What are the different approaches to returning cultural property and do they work?
Lucille A. Roussin, Adjunct Professor, Cardozo School of Law

The illustration of the Warka Head, an antiquity looted from the Iraqi National Museum, comes from the U.S. Department of State's Bureau of Educational and Cultural Affairs.

ALB

February 19, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Singer on Normative Methods for Lawyers

Joseph William Singer (Harvard) has posted Normative Methods for Lawyers on SSRN.  Here's the abstract:

How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists.

Because there are better and worse ways of making normative arguments and because both lawyers and law students need to know how to make such arguments, this article explains four basic tasks of normative argument and outlines a number of different ways lawyers accomplish those tasks. It then applies these various normative methods to a basic property law case. Bringing to consciousness these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.

Ben Barros

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February 19, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Zoning and the Subprime Crisis

Over at the VC, Ilya Somin has a post on possible links between restrictive zoning and the subprime market.  I have to say that I'm a bit skeptical.  I can see how zoning increases housing prices, but I can't see too much of a link between zoning and people getting mortgages on houses that they couldn't afford.

Ben Barros

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February 19, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)

Monday, February 18, 2008

Subprime Blogging

Over at Daily Sprawl, Chad Emerson is keeping tabs on various mortgage issues.  Folks interested in the subject should check it out.

Ben Barros

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February 18, 2008 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Singer on Property Norms and Externalities of Ownership

Joseph William Singer (Harvard Law School) has posted How Property Norms Construct the Externalities of Ownership on SSRN.  Here's the abstract:

The relation between property and sovereignty is a contested one. Traditional norms identify the protection of both persons and property as two of the core functions of government. However, these twin goals come into conflict when the existence or exercise of a property right results in harm to others. Yet it can be argued that recognition of any property right necessarily harms others by excluding them from resources they may need for human life. How then do we determine when an exercise of ownership is legitimately viewed as a "self-regarding act" that does not affect the legitimate interests of others (and thus does not involve any negative externalities) and when such an exercise does harm others and thus comes within the legitimate sphere of government regulation? Property norms help answer this question by orienting us in a moral universe through background understandings that define legitimate interests that deserve legal protection. Norms orient us, first, by telling us who is an "owner" and who is a "non-owner" with regard to any particular entitlement in a particular resource, and second, by telling owners when they are obligated to take into account the effects of their actions on others and when they are entitled to think of their own interests alone. In so doing, property norms define which externalities we as a society must pay attention to, worry about, and seek (if possible) to prevent.

Ben Barros

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February 18, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Saxer on Religious Accessory Uses

Shelley Ross Saxer (Pepperdine) has posted Faith in Action: Religious Accessory Uses and Land Use Regulation on SSRN.  Here's the abstract:

This article details the application of constitutional, land use and tax law principles to non-religious facilities and activities, within religious institutions, considered accessories or auxiliaries to the institutions' principal religious function. To qualify them as accessory uses, the religious institution must establish that these non-religious/secular uses are necessary to the religious exercise of the institution's members and guests. The article compares the tests for accessory uses applied in land use cases interpreting the Religious Land Use and Institutionalized Persons Act (RLUIPA), with the test for auxiliary uses employed by cases determining the tax exempt status of certain religious organizations. The idea of accessory uses was developed in land use law according to the principle that because the primary use (religious worship) was permitted under the zoning regulations or a variance, the secondary and incidental uses should likewise be protected. On the other hand, the integrated auxiliary principle proceeds from the idea that the religious institution should not be burdened by government regulation. Therefore, those activities and facilities meeting the definition of an integrated auxiliary likewise cannot be burdened. The article proposes that the rationale behind providing protection for accessory uses under the RLUIPA and the rationale behind offering tax relief for religious auxiliary uses are the same: that religious exercise should not be unnecessarily burdened by the government. Therefore, the article suggests a consolidated approach be created wherein an auxiliary use that qualifies for tax exempt status likewise should warrant protection under the RLUIPA as an accessory use, and vice versa. By combining the approaches for tax exemption and land use regulation, religious freedom will be more consistently secured. To avoid violating the Establishment Clause, the article warns, the government must not become so entwined with legislating or acting in the area of religious worship as to express a preference for one religion over another, or religion over irreligion. Ultimately, it is a difficult line that the state or federal government must walk: avoiding interference with religious exercise on one side and benefiting or preferring a certain religion over another on the opposite side. The article concludes that the laws governing tax exemptions can inform land use cases struggling with the issue of accessory uses and constitutional protection under RLUIPA. There are three reasons why tax laws are helpful: 1) tax courts and legislatures have struggled to answer the same basic question of what constitutes an accessory use; 2) tax laws have embraced a more cooperative approach, allowing religious institutions to define which accessory uses are reasonably devoted to church purposes (and therefore deserving of tax exemption); and 3) tax courts have increasingly recognized that the term religious use constitutes some activities, such as recreation and social gatherings, not traditionally considered religious in nature. On the other hand, land use decisions have not provided any consistent approach to identifying accessory religious uses, and some courts have required the religious institution to independently establish the religious nature of the use without the benefit of referencing the primary religious function of the organization. Finally, the article proposes that the RLUIPA be broadly construed to protect all accessory uses that contribute directly to the religious mission of the institution, regardless of whether their independent religious nature is established.

Ben Barros

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February 18, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

I'm Back

Sorry for the lack of posting in the last week.  I had the flu for one part of the week, and was on the road for the other.  Not a good combo.

Ben Barros

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February 18, 2008 in About This Blog | Permalink | Comments (0) | TrackBack (0)