PropertyProf Blog

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Univ. of Kentucky College of Law

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Wednesday, June 30, 2010

Restitution and history lessons

Imagine this:

2,500 innocent residents of country A are kidnapped by the armed forces of country B, transported across the seas and held in forced labor camps, and held as trade bait for country C.  Sounds like something from antiquity, yes?  Something involving the Greeks and Persians, perhaps.  Or, at the very least, something involving Kim Jong-Il.

Except: Country A is Peru, country B is the United States (the forced labor camps were in Texas), country C is Japan, and the years were 1942-1945.

We are all familiar with the internment of Japanese-Americans in camps and the infamous Korematsu decision that upheld that practice. 

But did you know that 2,500  Latin Americans of Japanese descent -- men, women, and children -- were kidnapped by the United States military from Bolivia and Peru, transported to the U.S. in deplorable conditions, and held for years in forced labor camps in the Texas desert?

One result of researching restitution issues is that you discover the most unbelievable stories. 

The U.S. apparently thought the Japanese would be willing to trade Americans held by Japan for these innocents.  They weren't. 

Worse still: when the war ended, these innocent people were deported for having entered the United States illegally(!) and forcibly patriated (not re-patriated, mind you) to war-ravaged occupied Japan, where most had never been before.  Many could not speak Japanese.   

A final insult to add to the injury: Congress passed the Civil Liberties Act of 1998, under which Japanese-Americans interned during the war received restitution of $20,000 each.  But these victims weren't Japanese-Americans, so they didn't qualify under the Act.  Instead, through a class-action lawsuit, most received a settlement of $5,000 each (see Mochizuki v. United States, 43. Fed.Cl. 97 (1999)). 

Chief Judge Smith of the Federal Court of Claims attached to his moving settlement order the affidavits of several victims.  They make for sobering, shocking reading.  These were people well-settled in their lives in Peru and Bolivia, business owners and farmers, many born there.  They lost everything.  One affiant recounts the haunting image from his childhood of his father being dragged away, shouting to him, but being unable to hear what his father was trying to tell him.

Restitution, to my mind, is the most difficult of all property issues.  Restitution is almost never adequate, and usually it does not even come close.  Moreover, the effects of time often make claims for restitution untenable -- the property taken is no longer there, or the entities that took it no longer exist, or the person from whom it was taken is dead, or the person who currently holds it is innocent too.

But one benefit of restitution issues is that they require us, to the extent possible, to look history squarely in the face.  Sometimes the view is suprisingly uncomfortable.

Mark Edwards

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June 30, 2010 | Permalink | Comments (2) | TrackBack (0)

Are cell phones a nuisance? Maybe to the bees.

Colony collapse disorder (in which bees inexplicably leave their hives and never return) seems like it has been pulled from the plotline of a M. Night Shyamalan horror movie.  Given the integral role that bees play in food production, this issue is fairly disturbing. 

But even more disturbing is a recent study from Chandigarh's Punjab University which places the blame squarely on mobile phones.  Read a report in The Daily Telegraph here or watch a bee video on CNN.com here.  

Ved Prakash Sharma and Neelima Kumar, the authors of the report in the journal Current Science, wrote: "Increase in the usage of electronic gadgets has led to electropollution of the environment.  Honeybee behaviour and biology has been affected by electrosmog since these insects have magnetite in their bodies which helps them in navigation."

"There are reports of sudden disappearance of bee populations from honeybee colonies. The reason is still not clear. We have compared the performance of honeybees in cellphone radiation exposed and unexposed colonies.  A significant decline in colony strength and in the egg laying rate of the queen was observed. The behaviour of exposed foragers was negatively influenced by the exposure, there was neither honey nor pollen in the colony at the end of the experiment."

This is just one study, so obviously the science is still out on the issue.  Laying aside my question of whether this information will impact my planned purchase of an iPhone 4, it seems that this raises interesting questions for first year Property students to struggle with:

Would a farmer suffering from a lack of bees have a nuisance claim against a neighbor who has a cell phone tower on their land?  If the flowers in my back yard are looking a little peaked, would I have a nuisance claim against my neighbor who lounges in the back yard all day talking on their cell phone?

Tanya Marsh

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June 30, 2010 in Nuisance | Permalink | Comments (0) | TrackBack (0)

Treanor from Fordham to Georgetown

As Dan Filler reports, Bill Treanor is leaving his post as Dean of Fordham Law School to take up the position of Dean of Georgetown Law.  As many readers know, Bill is a noted legal historian, and has written the authoritative histories of the Just Compensation Clause.  He was also my professor for first-year Property, Land Use, and two independent studies on takings issues.  This is a great appointment for Georgetown, and a big loss for Fordham.

Ben Barros

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June 30, 2010 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Sunday, June 27, 2010

We are Under-Selling Property. Debate.

Tanya's recent post on devising a first-year property curriculum, and my recent experience teaching and researching in the Czech Republic, have brought to the fore of my mind an important -- I'd say critical -- misstep in many property courses: we are under-selling the importance of property rights.

Now, that may seem counter-intuitive: it's a required course, after all, and usually the one that eats up the most credits.  It covers, as Tanya discusses, such a wide range of issues that it runs the risk of dissolving into a coreless hodgepodge.  So how can we be under-selling property rights?

Here's how: how many of us take the time to teach our students that property rights are at the center of the most massive struggles in world history?  That the fundamental, irreducible core of capitalism is a particular conception of property rights, that the fundamental, irreducible core of communism is a different conception of property rights, and that these two conflicting ideas dominated the course of the 20th century and may yet dominate this one?  That conflicting systems of property rights determined the courses of colonial empires and colonized cultures?  That millions upon millions died as a result of these struggles?

Property, in other words, isn't so much about lost brooches as it is about lost generations.

What I think we are underselling is both the political economy of property rights, and the flesh and blood (with an emphasis on blood) results of ideas about property. This year I'll be revising my first-year property syllabus to include readings on the capitalist and communist conceptions of property rights and the concrete, historical results of these ideas.  I'll be expanding the readings about colonialism beyond just Johnson v. McIntosh.  And I'll be adding recent cases from places such as South Africa that may bring into sharper relief than our domestic cases that these struggles are not consigned to history, but are part of the present and future as well.

I'd love to hear your thoughts.

Mark Edwards

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June 27, 2010 | Permalink | Comments (5) | TrackBack (0)