Thursday, March 4, 2010

Off to ALPS

I'm off to the ALPS conference in DC.  Hope to see some of you there!

Ben Barros

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March 4, 2010 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

United States Land Loss to Sprawl

A new study published in PLoS One attempts to quantify land loss to sprawl during the 1990s.  Here's the paper abstract:

Urban growth reduces open space in and around cities, impacting biodiversity and ecosystem services. Using land-cover and population data, we examined land consumption and open space loss between 1990 and 2000 for all 274 metropolitan areas in the contiguous United States. Nationally, 1.4 million ha of open space was lost, and the amount lost in a given city was correlated with population growth (r(272) = 0.85, P<0.001). In 2000, cities varied in per capita land consumption by an order of magnitude, from 459 m2/person in New York to 5393 m2/person in Grand Forks, ND. The per capita land consumption (m2/person) of most cities decreased on average over the decade from 1,564 to 1,454 m 2/person, but there was substantial regional variation and some cities even increased. Cities with greater conservation funding or more reform-minded zoning tended to decrease in per capita land consumption more than other cities. The majority of developed area in cities is in low-density neighborhoods housing a small proportion of urban residents, with Gini coefficients that quantify this developed land inequality averaging 0.63. Our results suggest conservation funding and reform-minded zoning decrease per capita open space loss.

In case you're curious, "reform-minded zoning" for the authors means zoning "characterized by efforts to restrict development and sometimes to channel it to existing urban areas."

Ben Barros

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March 4, 2010 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 3, 2010

Property Theory and HBO's Deadwood (part 5)

I previously discussed how Deadwood portrays the link between property and power -- i.e., how property creates a sphere of sovereignty that can be used as a force both for tyranny and liberty.  In this final post on Deadwood, I'd like to focus on what the show suggests about the link between property and identity.

Most discussions of this subject begin with Hegel's philosophy, which posited that individuals need property to become self-actualized.  Hegel defined a "person" as "a consciously free will . . . consist[ing] in a formal, simple and pure reference to itself as a separate and independent unit."  A chief problem for the person, so defined, is that it lives in a world of physical things and, therefore, must somehow interact with those things in order to express itself.  This is where property comes in, providing the material mechanism by which the will achieves some objective realization.  As most propertyprofs know, Margaret Jane Radin built on these ideas in her influential article, Property and Personhood, 34 Stan. L. Rev. 957 (1982).  In that article, Radin argued for a continuum of property rights based on the degree to which the property at issue formed a part of its owner's identity.  Radin suggested that property can be more than just an object or bundle of rights; rather, in certain cirucmstances it also can be something that is "almost part of [oneself]," id. at 959.

These ideas loom large in Deadwood, where the gold seems to be the driving agent behind almost all of the characters' activities.  In Hegelian fashion, the residents of Deadwood seem to find initial actualization by relating to their physical environments.  The surrounding gold deposits act as the catalyst that both draws them to the camp and determines their actions once there.  The gold becomes a part of who they are as persons.  But in their individualistic quests for the gold, something else happens -- a community beings to emerge.  Their separate relationships with the gold -- an external commodity -- begin to bind them together in deep and powerful ways.  The gold not only becomes a part of each individual's own personal story, it also entwines those stories with the stories of others, forming a common narrative in the process.  This, too, seems to comport with Hegel's ideas, which suggested that the self-actualization that begins with property ultimately leads to better expressions of the self in the context of relationships with other persons -- primarily in the family and the state.

An vivid example of this occurs in Season Three, where Hearst's machinations against the town are in full vigor.  As noted in my last post, the only significant counter to the threat posed by Hearst comes from the gold claim of Alma Garrett, which has alluded Hearst's grasp.  The rest of the town, understanding the significance of her claim and the strength it provides, gradually begins to identify with Garrett.  At one point, Hearst's gunmen take shots at Alma as she is walking down the street, an act that seems to be more about intimidation than a desire to take her life.  The town nonetheless rallies to her rescue, including some of her former enemies who had designs on her claim themselves.  Through their shared relationships with the gold, the residents of Deadwood begin to relate and identify with one another.

In Deadwood, we see how property can help shape both individual and collective identity.  As the characters' individual relationships to property become bound up with the individuals themselves, and those individuals become bound up with each other, a larger collective is formed that is also linked to (and by) property.  Thus, the property in Deadwood simultaneously serves as a means of promoting both individual freedom and community welfare.

Mike Kent

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March 3, 2010 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

AALS Program on Water Law for Next Annual Meeting

Professor Kali Murray of the Marquette University Law School and Chair of the 2010 AALS Section on Property Law is pleased to announce that the Section will be doing a joint program with the Agricultural Section (where Professor David Myers of Valparaiso University School of Law is the current chair) for the annual meeting next year (January 2011) in San Francisco.

The joint program will focus on "Changing Conceptions of Water in Law."

If you would like to submit a paper, we would love to hear from you by March 30, 2010. Please send us a working title and a brief description of your paper.  The paper will be published in a law review so we can only consider unpublished articles for possible inclusion in the AALS panel. If interested, please contact us at, or Please be sure to include both of us on your email submissions.

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March 2, 2010 in Conferences, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Eminent Domain Battle in Virginia

Fox News reported yesterday about an eminent domain battle in Virginia over the amount properly awarded in just compensation.  The city that condemned the property offered approximately $20 million, but the landowner claims he received market offers for more than twice that amount prior to the condemnation.  In addition to the differing numbers, though, the story raises the larger question of whether property owners are truly made whole by awards limited to fair market value only.  Finally, the story reveals an interesting fact that I did not know -- in Virginia, jurors in an eminent domain case must be property owners.

Mike Kent

P.S.  Thanks to Stetson law student James Kannard for bringing the story to my attention.

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March 2, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)

Monday, March 1, 2010

Property Theory and HBO's Deadwood (part 4)

In my last post, I discussed what the television series Deadwood suggests about the tensions that arise when naturalist expectations about property meet the reality of government and positive legislation.  As formal law slowly makes its way to the mining camp of Deadwood, the labor-based view of its early settlers meets head on the more positivist attitudes of the Dakota territorial leaders.  In the process, the balance of power inside the camp begins to shift away from the pioneers and toward the newcomers, who are directed primarily by gold tycoon George Hearst.  At the end of Season Two, Hearst himself arrives in Deadwood, providing a compelling illustration of the link between property and power.

Hearst's property interests, both in Deadwood and elsewhere, provide him with considerable influence.  His wealth gives him political sway over Dakota’s territorial leaders, who help him destabilize the existing gold claims.  His wealth supplies the boldness for his actions inside the camp, which consist of ransacking the local newspaper office, ordering the murder of a union organizer, and threatening the owner of the one gold claim that has alluded his grasp.  Hearst personifies the notion that property creates a sphere of sovereignty, what Charles Reich described as a "circle of freedom," around the activities of its holder.  To quote Reich: "Within that circle, the owner has a greater degree of freedom than without.  Outside, he must justify or explain his actions, and show his authority.  Within, he is the master . . . ."  See Reich, The New Property, 73 Yale L. J. 733, 771 (1964).  By exercising the sovereignty that property creates, its holder has the ability to influence resource allocation, economic production, the actions of other persons, and even the mechanisms of governance.   As Hearst's example vividly demonstrates, abuse of this ability can easily lead to a myopic view that ignores, or in some cases destroys, the rights and interests of other persons or groups.  In Hearst, the worst potential of property as a tool for tyranny is on full display.

But this sphere of sovereignty has a positive aspect, as well, which Deadwood also reveals.  As noted above, until the very end of the series, one substantial gold claim remains outside of Hearst's control -- that belonging to a widow named Alma Garrett.  And it is Garrett's claim that ultimately provides whatever freedom the town continues to enjoy.  As the only landowner in Deadwood whose holdings can in any way compete with Hearst’s, Garrett's claim acts as a counterbalance to the Hearst machine.  It provides her with a sphere of sovereignty also, one that gives her (and, by extension, the other members of the community) the ability to resist Hearst.  Here, we see property as a source of liberty.  Even as Hearst uses his property to threaten and coerce, Garrett's property serves as the town's protection against those threats.  Garrett's gold claim, a vestige of the labor-based view of the town's pioneers, acts as the community's last, best hope for independence.  And as the town coalesces around the strength and freedom her claim provides, the identities of the town's residents (and the town itself) are changing.

Mike Kent

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March 1, 2010 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Cemeteries, Land Use, and a Survey Invitation

My current scholarly obsession is cemeteries.  I am fascinated by the enormous cultural change in the American approach to "final disposition" (burial, cremation, etc.) over the past 100+ years and the interplay with the law.  In many important respects, the law has remained remarkably static and has failed to register important changes in American culture.  I also suspect that Americans are in the midst of another important cultural shift that is being actively discouraged by a range of outdated laws.  

I realize that I'm being vague, but I would like to invite you to take part in a short (5-10 minute) survey related to this project and I don't want to prejudice the results.  The survey asks about your own funeral and final disposition plans as well as your understanding of the law on several key issues.

The survey can be found here:

I would like a large and diverse range of respondents, so please feel free to forward this invitation.

I promise to explain where all of this is going and what it has to do with property law soon!

Tanya Marsh

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March 1, 2010 in Land Use | Permalink | Comments (0) | TrackBack (0)