Thursday, March 22, 2012
Nate Berg looks that the geography of the earliest cities:
[New techniques show] that these very simplistic, environmentally-driven models for where people should live long term can fail very clearly when places develop a meaning that goes beyond this environmental determinism," Ur says. "Clearly this place had some cultural meaning, some cultural significance that we don’t fully understand."
Shelley Saxer (Pepperdine) has posted Managing Water Rights Using Fishing Rights as a Model (Marquette Law Review) on SSRN. Here's the abstract:
This Article addresses the need to view water rights as licenses subject to government revocation, without just compensation, in the same way that fishing rights are viewed as licenses subject to government management. It focuses specifically on the methods used to address water resource allocation in the Sacramento-San Joaquin River Delta in California, and on fish allocation issues in the Pacific Northwest. It explores property rights in water and fish, particularly in regard to Fifth Amendment takings challenges when government regulations diminish water rights and fishing rights. The Article concludes by recognizing that both water and fish resources should be managed as ecosystems and governed by the public trust doctrine, and rejecting private property rights in either fish or water as a violation of the public trust doctrine, in which public resources are given away to private interests.
Wednesday, March 21, 2012
Mark Roark points us toward this delightful discussion of church pews and servitudes:
In general, the entitlement to seating in a church in English Common Law was perceived to be a common right of the parishioners. That is, the community held the same equal right of access to sit wherever they like. But some instances warranted greater certainty of seats for some over others. So how does one enforce such expectations (you know, without being so tacky as having the pastor withhold holy communion from someone that won’t agree) — property. And particularly, either creating a servitude or a prescriptive claim.
Amy Bowers and Kristen Carpenter (Colorado) have posted Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association (book chapter) on SSRN. Here's the abstract:
In Lyng v. Northwest Indian Cemetery Protection Association (1988), the Supreme Court held that it would not violate the Free Exercise Clause for the U.S. Forest Service to build a road through the “High Country,” an area that is sacred to Yurok, Karuk, and Tolowa Indians living in Northern California and Southern Oregon. Unable to show “coercion” of their religious beliefs, the Indian plaintiffs could not rely on the First Amendment to protect their interests in aboriginal territory now owned by the United States. As Justice O’Connor wrote: ‘‘Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.’’ Scholars have criticized the case as narrowing individual Free Exercise rights and expanding the government’s property rights, to the detriment of religious freedoms. While Lyng deserves this notoriety, an exclusive focus on defects in the holdings obscures other important dimensions of the case. In particular, the Supreme Court’s opinion comes close to silencing altogether the Indians’ perspective on their sacred High Country. Law and religion scholarship, with few exceptions, also ignores tribal voices both on the religious practices and advocacy strategies that were so key to the Lyng case and its aftermath. Indeed, the Forest Service road was never built and the tribes continue to practice their religions in the High Country.
This article offers a tribally-centered version of Lyng, one that is rarely told, at least outside of tribal communities. Based on interviews with tribal members who participated in the case, as well as interdisciplinary research into the anthropology and religion literature, this is a story of cultural revival fueled by the Indian way of life. It is a story of a community forced to defend itself against the assimilationist agenda of the federal government — and developing a contemporary political identity in the process. It is a story of the inextricable relationship between Indian people and lands, in which the Tribes’ attachment to their sacred sites ultimately triumphed over the Supreme Court’s narrow application of religion and property laws. In the final analysis, we argue, the Indian story of religious and cultural persistence has prevailed over Lyng’s ostensible narrative of conquest. Today, as Lyng’s doctrinal legacy threatens to undermine advances made under the Religious Freedom Restoration Act of 1993, the broader story told here is potentially revealing for everyone concerned with religious liberties in the United States.
Tuesday, March 20, 2012
As I did 3 nights ago, I'm watching live at http://www.ustream.tv/timcast as the New York Police Department forcibly prevent people from exercising their 1st Amendment rights on public space. It's an amazing experience to sit in my house in Minnesota, watching in real time as police and protestors confront one another in New York City. The democratization of media is astonishing. The link above is to 'Timcast'; Tim is apparently an intrepid independent reporter who has been streaming and commenting live on police / protestor confrontations. The tension of his broadcasts can be excruciating. I spend half the time worrying that he's going to get hurt.
As they did 3 nights ago, the police drove the peaceful protestors from the park (this time Union Square Park) and barricaded it. The park was closed to the public. It was an extremely odd spectacle, because in essence dozens of police became the occupiers of the park instead, standing awkwardly as hundreds of people watched them from across the police barricades. At least tonight was much less violent than 3 nights ago. The only apparent medical issue this time was a protestor who went into labor. 3 days ago one woman was clobbered into a seizure, and many others were injured.
I understand that some occupy protestors come across as self-righteous and naive. So what? Find me dissidents in history who haven't seemed self-righteous or naive. They have a legitimate point of view that they have expressed peacefully and often very, very eloquently. Isn't the purpose of the 1st Amendment to protect the unpopular, peaceful expression of dissent? And frankly, I don't think their speech is all that unpopular. I, for one, completely agree that far too much economic and political power is concentrated in the hands of the very people who triggered our economic crisis, and I'm deeply grateful that these people are making real sacrifices to say it.
To me it seems that the exercise of state power in this instance is directly related to the content of the speech being prevented. This is no mere time, place and manner restriction. When else are people prevented from peacefully congregating in public parks in Manhattan on a nice evening? And it goes far beyond evictions from parks. As the New York Times has been reporting, occupy activists are subject to constant harassment and surveillance.
I am deeply troubled by the repression of democratic dissent on public property. Are you? It makes me wonder what, exactly, I should teach my property students this semester about the use of public space to disseminate speech. Will these events effect in any way what you teach your property students?
Mark A. Edwards
"Thousands of slum dwellers including those under threat from forced eviction are taking part in a week of action across Africa supported by Amnesty International and partners.
Activists in Chad, Ghana, Kenya, Nigeria, Egypt and Zimbabwe will call on their governments to stop forced evictions and make sure that people living in slums have equal access to water, education, health care and other essential services.
'Hundreds of thousands of people across the continent are left homeless each year by forced evictions. In most cases, these evictions are conducted with complete disregard for international law and even the most basic human rights standards,' said Erwin van der Borght, Amnesty International’s Director for Africa."
Mark A. Edwards
Photojournalist Peter Menzel's Material World may be of interest to PropertyProfs. "In each of the 30 countries, Menzel found a statistically average family and photographed them outside their home, with all of their belongings. The result is an incredible cross-cultural quilt of possessions, from the utilitarian to the sentimental, revealing the faceted and varied ways in which we use “stuff” to make sense of the world and our place in it." Check out some of the pictures here.
The N.Y. Times runs a profile of 15 Central Park West - Manhattan's most expensive luxury building:
After descending to the lobby on a recent Saturday, we walked past three gas-burning fireplaces on the way to the library, which had dozens of books and several comfy chairs. The dining room was closed (it isn’t open on weekends), but Ms. Baekgaard assured me that “it is the best place to eat in the city.” There is no dress code; some residents wear shorts to lunch, she said.
Update: Link fixed
Message in a Mortgage: What Dodd-Frank's 'Qualified Mortgage' Tells Us About Ourselves (Boston U. Review of Banking and Financial Law). Here's the abstract:
This essay outlines the ethics that shape federal housing finance policy and situates them in the context of the Dodd-Frank Act. In a way, however, it asks a simpler question: what do our mortgages tell us about our society? The essay proceeds as follows. First, it outlines three ethics that inform American housing finance policy generally. Second, it contrasts two mortgages: the one from the subprime boom of the early 2000s and the other from Dodd-Frank, the “Qualified Mortgage.” It concludes by using the three ethics to answer the question posed above and outlining what is at stake in the housing sector given the choices that we might make.
Monday, March 19, 2012
Eduardo Penalver has a intriguing post about the difficulty of enforcing small property claims:
I've been thinking about small claims, becuase in the property context they are pervasive and pose a real challenge but for some reason don't get much attention.
First off, let me explain why I think small (and even medium-sized) claims pose a particular problem in the property context. (I'm not making a strong claim, here, and I don't think much hangs on the idea that this is a problem unique to property. So please forgive me if you think I'm way off base on this.)
The biggest reason is that the class action mechanism is usually not available for property disputes. Small and medium-sized property disputes, especially land conflicts, tend to be relatively small-n affairs, and the facts of each case are usually sufficiently distinct that even litgiation against a repeat player (e.g., a large landlord) may not justify class treatment.
The whole thing is worth your time.
Over at The Atlantic, Harvard philosophy professor Michael Sandel looks at the hidden costs of the "market thinking" that permeates our society:
While it is certainly true that greed played a role in the financial crisis, something bigger was and is at stake. The most fateful change that unfolded during the past three decades was not an increase in greed. It was the reach of markets, and of market values, into spheres of life traditionally governed by nonmarket norms. To contend with this condition, we need to do more than inveigh against greed; we need to have a public debate about where markets belong—and where they don’t.
The Law of the Body (Emory Law Journal) on SSRN. Here's the abstract:
This article posits that a “law of the body” is overdue. In the absence of clarity about the legal status of the human body, courts have constructed a collection of circumstantially-defined categories for resolving question of human body ownership and use. This patchwork approach is awkward, unwieldy, incoherent, and, by many lights, ultimately unjust. Many able minds have been applied to critiquing the distributive consequences of a regime in which we cannot – at any point in our lives – “own” our own bodies (or its constituent parts), but other people can and do. But what has been missing from these conversations is a conceptual foundation for understanding the living human body as property. This article supplies that piece of this byzantine puzzle. Specifically, the thesis presented here holds that by employing a property framework to understanding the legal status of the human body we can explain with coherence and consilience our existing legal commitments concerning the treatment of the human body.
Moreover, the article addresses the standard objections to explicitly acknowledging the human body as an object of property and demonstrates that these objections are predicated on a series of misunderstandings. These misunderstandings generally fall into three categories: misunderstandings about the nature of “property;” conceptual misunderstandings about bodies and selves and the capacity to own oneself; and misunderstandings about the necessary consequences of adopting a property framework with respect to the human body. Once these misapprehensions are clarified, the intellectual path will be cleared for a “law of the body” to emerge, and legislators, courts, and scholars can begin the important work of shaping it into a doctrine that is consistent with our normative ends.