Friday, March 26, 2010

The Sidewalk at the Corner of Property and Norms

In my last post, I wrote about the predictable malfunction legal institutions face when behavior regarding property is illegal but normatively acceptable: selective enforcement.  Today I want to write about the opposite dynamic -- behavior that is legal but normatively unacceptable – and the predictable problem it presents for legal institutions: 'popular justice.'  The state cannot (or at least, should not) prevent such behavior, because it is legal; but, in the absence of formal sanctions, a community might apply its own informal sanctions, sometimes violently (for those interested, I write about these dynamics in more detail here).

Consider the use of public property. Many cities formally prohibit performances for money on public sidewalks, but in many places, it is normatively acceptable for some aspiring talent to croon, twang and pass the hat.  Most likely the musician won’t be subject to formal sanctions, because the imposition of formal sanctions tends to follow the limits of normative acceptability, rather than the law.

Now imagine a religious zealot standing in the same spot, demanding that you repent or go to hell.  That behavior is probably legal regardless of local ordinances.  But, regardless of its legality, that behavior is also probably normatively unacceptable.  The state can’t impose formal sanctions on the zealot, so the community may impose informal ones.  Passers-by might cross the street, shoot hard stares or laugh.

Or much worse.  Members of the infamous Westboro Baptist Church proselytize from public sidewalks near soldiers' funerals, holding signs that say, among other charming things "Thank God for Dead Soldiers," "He's Going to Hell," and "God Hates Fags."  The hateful sect apparently believes God is punishing the United States for tolerating homosexuality.

The Fourth Circuit recently ruled that the First Amendment prohibited the father of a soldier killed in Iraq from imposing private legal sanctions on the group in the form of damages, after it picketed his son's funeral.  Although the Supreme Court recently granted certiorari, it seems highly unlikely that the Court will find that the group can be held liable, for reasons Daniel Solove explains here

If legal institutions can't allow formal sanctions against normatively unacceptable behavior, the predictable consequence is that ‘popular justice’ will follow.  And, in fact, is has.  One motorcycle club has made it its mission to drown the sect out at soldiers' funerals.  More ominously, in at least one instance, on-lookers have violently attacked demonstrating sect members. 

The controversy has been framed as a First Amendment issue, but the right to use public space is also property rights issue.  The inability -- appropriate inability, but inability nonetheless -- of legal institutions to sanction legal but normatively unacceptable behavior with regard to the use of public property has predictably lead to vigilantism instead.  The question now facing the Supreme Court is: how, if at all, should legal institutions respond?  It can't change the normative acceptability of the sect’s behavior.  It must decide, therefore, whether to insist upon the legality of that behavior.  It will be fascinating to see whether strongly felt norms drive a change in the right to use public space. 

Mark Edwards

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March 26, 2010 in Property Theory, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, March 22, 2010

How Many Credits For First-Year Property?

How many credits should the first-year Property course have?  I was recently asked whether we've taken on this topic here before, and much to my surprise I don't think we have.  I recall it coming up a few years ago on the propertyprof listserv, and from what I recall, the opinions varied widely.

I've taught Property both as a four-credit, one-semester course (at Catholic U.) and as a six-credit, two-semester course (at Widener, both as 3-3 and 4-2).  I might get kicked out of the PropertyProf's union for saying this out loud, but I think that Property can be taught well as a four-credit class.  Sure, I like having six credits, and I can usefully fill the time.  A four-credit Property course is a bit superficial, but to me that's okay.  I view the first-year Property course as an introduction to the subject, and I would rather give my students an overview of a wide-range of topics than go into great depth on everything.  For example, I think it is educational malpractice to teach Property without doing at least the basics of recording (the indexes, how the different kind of statutes work, the shelter rule, inquiry notice), but I don't think there is great value in going into depth on difficult and obscure recording problems.  The same point can be made for most of the other subjects that we teach in Property. 

Even though I like having six credits, and I think that the subject can be done well in four, the ideal is probably five.  Four seemed a bit too rushed, and six seems like a bit too much.  The big problem with five credits is that it doesn't help with the Associate Dean's scheduling problems -- most five credit courses would be taught as 2/3 or 3/2 over two semesters, taking up two teaching slots for a professor.  As far as the other option that I've seen at some schools - three credits - there comes a point where the superficiality of an intro course reaches a point of absurdity.

So, what do you think?  Three, four, five, or six?  Anonymous posts are okay, but not preferred.

Ben Barros

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March 22, 2010 in Teaching | Permalink | Comments (3) | TrackBack (0)

Norms, File-Sharing and the Latest from the Thomas Case

Legal institutions struggle when the legality of behavior, and the normative acceptability of that behavior, diverge.  Sometimes behavior that is formally illegal is normatively acceptable; sometimes behavior that is legal is normatively unacceptable.  Want proof?  When you drive home today, drive 1 mph under the speed limit.  You'll find that behavior that is illegal -- speeding -- is normatively acceptable, but that legal behavior -- driving below the speed limit -- is normatively unacceptable. 

Legal institutions facing those divergences falter in predictable ways.  Behavior that is legal but normatively unacceptable cannot trigger a formal response from legal institutions, so tends to trigger 'popular justice' responses -- sometimes as mild as tailgaiting, sometimes as severe as violent vigilantism.  Behavior that is illegal but normatively acceptable usually does not trigger a formal enforcement response, but it can -- at the enforcer's discretion.  The danger here is selective enforcement.  Consider again the speeding example: what is racial profiling but selective enforcement against illegal but normatively acceptable driving behavior?

The same dynamic is at work with regard to property rights, as the recent lawsuits brought against Jammie Thomas and Joel Tennenbaum demonstrate.  At least among the young and computer-savvy, non-commercial file-sharing seems to be normatively acceptable, even though it is illegal.  According to the Electronic Freedom Foundation, one in five American Internet users is a file-sharer.  Ask the next class you teach for a show of honest hands, and you'll probably find that estimate accurate.

The predictable danger when there is is such a wide divergence between the legality and normative acceptability of behavior is selective enforcement.  Courts aren't good at avoiding being used as vehicles for selective enforcement.  In both the Thomas and Tennenbaumcases, Judges Davis and Gertner openly lamented their inability to prevent their institution from being so used.  Judge Davis in the Thomas case expressed serious misgivings about the unfairness of singling Thomas out for liability, stating that Thomas "acted like countless other Internet users.  Her alleged acts were illegal, but common."  Judge Davis recently slashed the damagesawarded against Thomas by 97%, from $1.92M to $54,000.  He clearly is intent on fighting back against the perceived unfairness of selective enforcement against illegal but normatively acceptable behavior.  But the RIAA isn't giving up, either; they have filed a motion for new trial on damages.

But even the RIAA must realize that it cannot hope to use the courts to selectively enforce against normatively acceptable behavior forever.  Usually, eventually, property rights catch up to notions of normative acceptability.

Mark Edwards

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March 22, 2010 in Intellectual Property, Property Theory, Recent Cases | Permalink | Comments (2) | TrackBack (0)

Ordering the City Book Club at Prawfs

This week, PrawfsBlawg is hosting a book club on Nicole Garnett's great new book Ordering the City.  I'll post links as the contributions go up:

Ben Barros, Complexity and the City

Tracey Meares, Ordering the City

Chris Serkin, Ordering the City

Lee Fennell, Ordering the City

Steve Clowney, Order and the Poor

Michelle Wilde Anderson, Ordering the City

Nicole Stelle Garnett, Ordering the City, Redux

Michelle Wilde Anderson, The Purposes of Planning (the Good Kind): Ordering the City Part II

Ben Barros

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March 22, 2010 in Books, Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, March 21, 2010

Understanding the Conflict Behind Stop The Beach

Today's NY Times Magazine has a fantastic story by Andrew Rice about the conflicts in Destin, Florida that led to the Stop The Beach Renourishment case now before the Supreme Court.  (We've blogged before about Stop The Beach Renourishment, especially here and here.)  I talked at some length with the reporter, and learned a lot from our conversation.  I learned even more from reading the article.  Great stuff.

Ben Barros

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March 21, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)