Thursday, April 15, 2010

Is that Property which the Law Declares to be Property?

In response to Virginia's celebration of confederate history month, and in connection with teaching takings this week, yesterday I had my property class read Henry Clay's argument against the emancipation of humans held as slaves.  Clay's argument was that if emancipation were to occur, it would constitute a taking, and thus was impermissible under the 5th Amendment without just compensation.  Since the government was not prepared to provide such compensation, emancipation would be an illegal and unconstitutional act.

Anticipating the rejoinder that there could be no taking if the thing taken were not property, Clay said, "That is property which the law declares to be property."  For at least 200 years, he said, both before and after the ratification of the Constitution, humans of African descent had been recognized as private property.  They were not just uncompensated labor; they could be alienated, possessed exclusively, and used like other forms of private property, including as security for debt.  Generations had relied on the law, and the law told them that slaves were property. 

Now, I was not about to ask first-year law students to argue the position that the emanicpation of slaves without full compensation of their former owners was a  legally wrong, unconstitutional act.  So, I took that position (and, in case there is any misunderstanding here, I'll say now what I said to my class: of course I don't think emancipation was wrong, and I'll kick the @*&%$ of anyone who says otherwise).  I then told my class to explain, if they thought I was wrong, why.

I made them focus on whether slaves had ever really been property, as the law had said they were.  I did not let them argue too long that the emancipation was not a taking (in the sense that it was merely a regulation that didn't go 'far enough'), or that compensation had already been provided through the slave's labor.  There are good arguments for those positions, perhaps, but they also allow us to dodge Clay's provocative claim.  So I insisted they tell me: is that property which the law declares to be property?   

It was a fascinating discussion, particularly in light of the typical skepticism with which my students had regarded the idea of unenumerated rights the week before when discussing zoning.  I'm as skeptical of 'natural law' as the next product of the Enlightenment, and yet . . . . try as we might, we just could not accept that humans had ever legitimately been property simply because the law had declared it.  But if that's true, then what is the source of authority that says otherwise?  Something greater than the Constitution?  And if we say yes, aren't we acknowledging and defending the existence of unenumerated rights, whether implied in the Constitution or not?  Isn't that the essence (so to speak) of natural law?

Regardless, it was a fascinating exercise, and one I highly recommend for your property classes.

Mark Edwards

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April 15, 2010 in Property in the Human Body, Property Theory, Takings, Teaching | Permalink | Comments (4) | TrackBack (0)

Tuesday, April 13, 2010

Neighbors v. Neighbors in New Jersey Beach Renourishment Dispute

The AP has a great story about a controversy brewing in Long Beach Island, New Jersey.  The beach is eroding, placing some beachfront homes at risk and endangering the community’s main recreational attraction.  But renourishment of the beaches would create dunes that would block some beachfront owners’ views of the beach.  When a nearby town used eminent domain to take an easement from some holdouts, the trial court gave a huge compensation award to the property owners.  So now the mayor and town officials of Long Beach Island are encouraging people to convince, and perhaps harass, their neighbors who are holding out.

Ben Barros

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April 13, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)

Monday, April 12, 2010


The New York Times ran a fascinating piece last week about tenant blacklisting.  Turns out there are over 600 firms in the country that collect and sell to landlords the names of people who've been in housing court eviction proceedings.  More startling, to me, is that at least in New York City, the courts themselves are selling the names to these firms. (To quote the Times, "As soon as an eviction case is put on the calendar by a clerk or lawyer, New York’s housing court system sells the names of tenants to screening companies. The court has sold case information since 1990.")

There are so many troubling things about this practice that it's difficult to know where to begin.

First, no distinction is made between tenants who are vindicated in court and those who aren't -- all are blacklisted.  The chilling effect on tenants who might otherwise rightfully withhold rent are obvious.

Second, names are collected -- so people with the same name as someone who once appeared in housing court are blacklisted.  But until recently, at least, they had no right to discover why their application to rent was denied.

Third, one of the most pernicious effects of the foreclosure crisis has been the eviction of blameless tenants.  When a property is foreclosed upon, leases are terminated -- even if the tenant has never missed a rent payment.  The practice is so normatively objectionable that the sheriffs of several major counties -- including, at various times, Cuyahoga, Cook and Wayne (homes to Cleveland, Chicago and Detroit, respectively) -- have refused to carry out evictions of blameless tenants.  Nonetheless, such tenants' names may be added to the blacklists, so that not only are they evicted through no fault of their own, but they may be unable to find another place to rent. 

Last, it is morally objectionable, in my opinion, that a housing court would have a profit interest in blacklisting tenants.  Nothing can or should prevent the companies from gathering the information for themselves, but courts have no business participating for profit in a practice that chills access by rightful claimants.

Fortunately, the New York City City Council just passed the Tenant Fair Chance Act, which requires landlords to disclose which companies they plan to use for background checks on potential tenants.  Tenants can then order their files from the companies, and at least have the chance to correct inaccuracies.

Mark Edwards

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April 12, 2010 | Permalink | Comments (2) | TrackBack (0)

The Policy Tensions of Non-conforming Uses

An article in this weekend's Sarasota Herald-Tribune provides a nice real-world example of the policy tensions that underlie the law of non-conforming uses, especially in developing areas that bring lots of new residents.  A family whose businesses have been allowed to continue since 1975, when the local zoning regime was adopted, appear to be coming under increasing pressure from newer residents who find the businesses incompatible with the current feel of the community.  As I've noted before, I like to provide students with examples of how the theories we study in class play out in real life situations, and these types of skirmishes help demonstrate the conflict that often arises between protecting individual property rights and establishing a more communitarian outlook.

Mike Kent

P.S.  Thanks to Stetson law student Kimberly Clark for bringing the article to my attention.

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April 12, 2010 in Land Use | Permalink | Comments (0) | TrackBack (0)