October 13, 2012
My dad grew up in southeast Nebraska (Verdon, to be precise), which is less than 20 miles from the Missouri state line. When he pronounces the name of the neighboring state, he says "Missouruh." So of course I say it that way too. My sister, on the other hand, who attended law school at Washington University in St. Louis, pronounces it "Missouree". This has been a friendly inter-familial battle for years, so I was happy to see the New York Times weigh in on the debate today. Apparently, the pronounciation that Dad and I favor is "country" and "old fashioned." My sister says it the way city folk do.
The Times mentions that Missouri is the only state where the natives differ on how to pronounce its name. One theory is that Interstate 70 serves as a sort of Mason-Dixon line, those above the line pronounce it Missouree, and those below pronounce it Missouruh. I'm no linguist, but when I moved to the Piedmont of North Carolina from Indianapolis, I recognized the accent -- its very similar to the accent that I heard visiting my Grandma in southeast Nebraska and driving through rural Missouri. That area of Nebraska, like southern Missouri, and southern Indiana for that matter, was settled 150 years ago by folks from Virginia, North Carolina, Tennessee, and Kentucky. Generations later, you can still hear the accent in the pronounciations of some words.
So, all that being said, I'm sticking with my pronounciation of "Missouruh."
October 12, 2012
Sioux Race to Purchase Sacred Ground
The New York Times highlights the Sioux's attempt to buy back their sacred land in South Dakota:
The Black Hills, the rolling range of mountains that rise out of the badlands of western South Dakota, are considered sacred to the Sioux, who for 150 years have fought on battlefields and in courtrooms for the return of the land.
And so the Great Sioux Nation exulted this summer when a long-sought parcel in the mountains called Pe’ Sla by the Lakota was put up for sale and a bid from the Sioux was accepted by the family that had controlled the land since 1876, the year that Gen. George Armstrong Custer died not far to the west at Little Bighorn.
But now, anxiety has replaced optimism as more than a half-dozen Sioux tribes, which include some of the nation’s poorest people, race to come up with the $9 million purchase price before the deadline next month. Not only poverty stands in the way, but also the charged history: many Sioux ask why they should have to pay for land that already belongs to them, given numerous treaties broken by the United States and a landmark federal court decision in 1979 that called the government’s seizure of the Black Hills one of the most dishonorable acts in American history.
Prum on Property Insurance for the Green Building
Darren Prum (Florida State - Business) has posted The Next Green Issue: Considering Property Insurance for the Green Building on SSRN. Here's the abstract:
As government policies across the country try to encourage more environmentally friendly buildings, the next green issue facing the owners of the completed structure is obtaining the proper insurance coverage to protect their investment. A typical property insurance policy covers the costs to reconstruct or replace property damaged as the result of a casualty, so the Insurance Service Organization and other carriers offer specific green building endorsements in an effort to augment the underlying property policy. However, these buildings maintain unique characteristics, which becomes relevant to the owner and policy underwriter as well as other stakeholders like the holder of a mortgage and major tenants. Accordingly, this article seeks to address the issues associated with a property insurance policy and the applicable endorsements that provide coverage for a green building.
October 11, 2012
Etzioni on Organ Donation
Amitai Etzioni (GW - International Affairs) has posted Organ Donation: A Communitarian Approach (Kennedy Institute of Ethics Journal) on SSRN. Here's the abstract:
Recently, various suggestions have been made to respond to the increasingly great shortage of organs by paying for them. Because of the undesirable side effects of such approaches (commodification, injustice, and costs), a communitarian approach should be tried first. A communitarian approach to the problem of organ shortage entails changing the moral culture so that members of society will recognize that donating one's organs, once they are no longer of use to the donor, is the moral (right) thing to do. This approach requires much greater and deeper efforts than sharing information and making public service announcements. It entails a moral dialogue, in which the public is engaged, leading to a change in what people expect from one another. Among the devices that could help to change the moral culture are a public statement, endorsed by community members and leaders, that expresses the community sense that donation "is what a good person does" and a community-specific web page that lists those who have made the commitment. A change in law so that a person's wishes in the matter are recognized as final and binding is also desired. This position paper deals only with cadaver organs and not living donors.
October 10, 2012
On Pittsburgh & Parking Chairs
Over at the Faculty Lounge Mike Madison has a fun post about the customary practice of reserving an empty parking space with old kitchen chairs. For those who didn't grow up in the Rust Belt, the practice works something like this: If there's a significant snowfall and you shovel out your car on the street, you have a possessory claim to that parking space until the snow melts. When you leave your spot to go to school or work, you then mark your territory with a couple of chairs. The furniture serves a notice function, letting neighbors (and outsiders) know that the spot is claimed. Mike writes:
[T]he customary practice of "reserving" an empty parking space with a lawn chair (or equivalent piece of worn furniture, etc.) has now been formalized in the code of one nearby municipality. Social norms are become law.
It is always interesting to observe the emergence and refinement of governance mechanisms for shared resources, and that's what I think the parking chair phenomenon represents. In Canonsburg, are municipal authorities capitulating to and channelling citizen resistance to public law? Is this simply a formal expression of community- and citizen-driven justice? Something else?
I think what's going on falls under the category of "something else." But before getting to that, a little bit of background is necessary. I'm from Pittsburgh. The city will always be home. I think it's the greatest place in the world (Paris is just the Pittsburgh of the Seine and all that). And one of the things that defines you as a Pittsburgher is the utter and absolute respect for another person's snow chairs (this, and pretending to really like fries on sandwiches, and the civilized custom of the Pittsburgh Left). My favorite sweatshirt (see above) is even snow chair related.
Despite all this, deep down I'm not sure how I feel about the snow chair phenomenon. My concerns stem primarily from problems with enforcement. I remember one night when I was still in high school, I came home from a movie and found that someone had moved our snow chairs and taken our parking spot. At that moment, there was no higher power to call for help and I didn't recognize the car. I had to shovel another spot, late at night, in the dark cold. It's difficult to describe the terrible, blinding rage this induced. I knew immediately that I had to resist this invasion. To let someone move your chairs without immediate retaliation marked you as a sucker. After shoveling, I did something that still fills me with a lot of horror and some shame (but maybe some pride, too); I keyed the offender's car. I made a real mess of his hood and side door.
So, this is my problem with snow chairs and the reason that I applaud any move to codify informal law -- customs ultimately must be enforced through some kind of personal violence. And that's a nasty business that can quickly get out of hand when left to the honor norms of teenage boys.
AALS Call for Papers
From the 2013 AALS Workshop on Poverty, Immigration and Property:
We are seeking proposals for presentations and papers for the 2013 Mid-Year Meeting Workshop on Poverty, Immigration and Property. The Workshop will be held on June 10-12, 2013 in San Diego, California. [...] For these sessions we are seeking proposals that are in various stages of development. We are exploring the possibility of publication opportunities with various law journals.
We invite any proposal on the topic of the Workshop theme. Possible topics within the purview of the Workshop theme include:
- Access to Justice (Labor Camps, Counsel, Language)
- Property Implications of Immigration Enforcement
- International: Land Distribution, Land Reform, Forced Migration
- Race and Property/Race and Immigration
- Climate Refugees: Property, Poverty, Immigration
- Progressive Property: Pro and Con
- Welfare Rights for Immigrants
- Employer Sanctions and Licensing
- Property Formalization
- Home, Housing and Culture
- Property and Citizenship
We expect to select three or four presentations for each of the concurrent sessions. Each presentation will be about 15 minutes, followed by questions from the moderator and the audience.
Interested faculty members should submit a brief written description (no more than 1000 words) of the proposed presentation or paper, along with their résumés. Please email these materials to email@example.com by Friday, October 26, 2012. We will notify selected speakers by December 1, 2012. Please indicate if you would like the opportunity to receive comments from a senior scholar.
For more information, see here.
Engle on Comparative Property Law
Karen Engle (Texas) has posted Comparative Constitutional Law and Property: Responses to Alviar and Azuela (Texas Law Review) on SSRN. Here's the abstract:
pleased to have the opportunity to comment on two very rich and
provocative articles: Property in the Post-post-revolution: Notes on the
Crisis of the Constitutional Idea of Property in Contemporary Mexico by
Antonio Azuela and The Unending Quest for Land: The Tale of Broken
Constitutional Promises by Helena Alviar García. Both articles offer
historical and contemporary accounts of the role of the social function
of property in the constitutional framework of the countries they study
(Mexico for Azuela and Colombia for Alviar).
I begin this Commentary with a few general thoughts on comparative method, and then engage in a comparison of the articles by discussing three issues they raise. In particular, I consider the tension between individual property rights and social function examined in each article, the possibilities the authors imagine for collective rights and conservation within the property rights regimes they examine, and the views about the role of law the articles express.
October 9, 2012
World on Fire: How Much of the Earth is Disputed Property?
Slate asks how much of the planet’s land is subject to disputed ownership?
At most, 300,000 square miles. There’s no official running tally of property under dispute, but it amounts to less than one-half of 1 percent of the Earth’s landmass. There are currently around 60 legitimate disputes, counting only disputes between nations over parcels of land, not separatist regions within existing countries. A couple of major disagreements in Asia account for a large portion of that area. Kashmir, for example, covers about 86,000 square miles, with India, Pakistan, and China all staking claims. The unsettled border regions between India and China—it’s not one continuous swath of land, but it’s all wrapped up in the same Sino-Indian dispute—represent about 48,000 square miles. Most of the other disputed territories are far smaller, ranging from minuscule rock islands to a few thousand square miles.
Hirokawa on Northern Ohio's Surprising Influence on Property Law
Keith Hirokawa (Albany) has posted From Euclid to the Development of Federal Environmental Law: The U.S. District Court for the Northern District of Ohio and the Regulation of Physical Space (Book Chapter) on SSRN. Here's the abstract:
In 1969, the Cuyahoga River burned. Although it was not the first time that the River was in need of assistance, it was the 1969 fire that helped to compel a radical transformation in the way that we interact with the environment. The U.S. District Court for the Northern District of Ohio was not called upon to adjudicate the liabilities resulting from this pivotal event. But in the years preceding the Cuyahoga fire, the district court was asked to navigate conflicting jurisprudential approaches to the use of land, air, and water. This chapter explores a handful of these cases in order to illustrate the nation's struggle over suspicious conceptions of economic advantage and fairness, flexible distinctions of private and public property, and evolving ideas of nature and health. The chapter begins with the 1924 decision in Ambler Realty Corporation v. Village of Euclid, which remains the most famous challenge to the constitutionality of zoning regulations. It then turns to the 1930 decision in Swetland v. Curtiss Airports Corporation, where the district court addressed the inevitable limitations in property rights above land following the advancement of powered human flight. Finally, it considers an opinion released on the eve of the Cuyahoga River fire, when the court was asked to choose between saving a town and protecting railroad operations in Biechelle v. Norfolk Western Railway Company. Although the district court's decisions in these controversies do not bear the indelible character that we often attribute to law, the federal district courts for the Northern District of Ohio contributed to a legal framework in which the fire could occur and, perhaps more significantly, in which the fire could be perceived as an important event.
October 8, 2012
The Indians Sold Manhattan For How Much?
On of the most persistent myths in American history is that the Dutch purchased the island of Manhattan from local Indian tribes for $24 worth of beads and trinkets. Matt Soniak investigates:
In the Dutch National Archives is the only known primary reference to the Manhattan sale: a letter written by Dutch merchant Pieter Schage on November 5, 1626, to directors of the West India Company, which was instrumental in the exploration and settlement of “New Netherland.” In the letter, he writes, “They have purchased the Island of Manhattes from the savages for the value of 60 guilders.” ...
Nineteenth century historians converted those 60 guilders to U.S. dollars and got what was then $24. That same figure has been repeated for almost two centuries since, frozen in time and untouched by changes to the value of currency—but those guilders don’t stand at $24 today. According to this converter from the International Institute of Social History at the Royal Netherlands Academy of Arts and Sciences, 60 guilders in 1626 was equivalent to 734.77 euros in 2011. The exchange rate to the US dollar varies, but a conversion as I’m writing this gets us $951.08 USD, which puts us more in the ballpark.
While $951.08 is less of a steal than $24, there are still some other confounding factors to the deal. For one thing, Schagen’s letter does not mention who actually made the deal with the Dutch or the tribe on whose behalf it was sold, and the deed for the land has been lost. Without confirmation from a primary source, historians are left to infer who the island was purchased from, and can’t seem to agree. A few accounts say that the Dutch got the wool pulled over their eyes, and bought the land from a group of natives that lived on Long Island and were only traveling through Manhattan. Coming upon the European rubes, they traded away land they had no claim to and continued on home with the Dutch loot.
(HT: Andrew Sullivan)
Supreme Court Grants Cert in Takings Case
Tim Mulvaney has an extensive post on the Supreme Court's decision to grant cert in the “exaction” takings case of Koontz v. St. John’s River Water Management District. The rub:
The Koontz case raises two important questions: (1) whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands; and (2) whether the Nollan/Dolan test is applicable at the point in time when an exaction is merely proposed. Drawing from several of my earlier posts on Koontz (available here and here), below I will attempt to provide a primer on the facts and the issues at stake.
The whole post is worth reading - Tim is an expert on exactions and breaks the case down in a very succinct and intelligible way.
Michelman on The Baseline Dignity of the Common Law
Frank Michelman (Harvard) has posted Comment: The Common Law as Baseline? (A Reading of the Judgments of the Supreme Court of Appeal of South Africa in the Case of Minister of Minerals and Energy v. Agri South Africa) on SSRN. Here's the abstract:
Comment presents a reading of the judgments of the Supreme Court of
Appeal of South Africa in the recent case of Minister of Minerals and
Energy v. Agri South Africa. The judgments reject a claim of
unconstitutional expropriation of property by force of a recent, major
statutory revision of laws governing acquisition, retention, exercise,
duration, and transfer of mining rights in South Africa.
The Comment makes no attempt to provide a complete account of these judgments (which will undergo review by South Africa’s Constitutional Court) or all of their reasoning. Its scope is restricted to questions regarding the appearance in the judgments, and certain arguments to which the judgments respond, of what I have called “the baseline dignity of the common law,” which comes to the fore when the rule or model of the common law is taken to provide a baseline of justified expectation, by reference to which to measure claims of excessive or otherwise impermissible deprivations or expropriations by the state.