May 22, 2012
Adverse Possession, Takings and the State
William Marra, Harvard Law School, has posted Adverse Possession, Takings, and the State on SSRN.
Here's the abstract:
Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be allowed to adversely possess land in the same manner as private individuals? Second, when the government commits adverse possession, does this constitute a constitutional “taking” that requires the payment of just compensation? These two questions are of practical importance because they affect the resolution of numerous property claims, and they are of theoretical significance because they implicate both the appropriate scope of private property rights and the proper relationship between the individual and the state. Part I provides an introduction to adverse possession, and Part II studies the law of government adverse possession, detailing how nearly every jurisdiction permits the government to adversely possess private land in the same manner as private individuals. But as Part III demonstrates, government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions — that the landowner has a property rule entitlement to her land, that the trespasser develops robust reliance interests, and that society’s primary interest is in quieting title — that do not necessarily hold when the government is the adverse possessor. Part IV concludes that because the current rules of adverse possession incentivize government trespass upon private land, special rules should apply to the government. When the government adverse possessor trespassed in good faith, a longer statute of limitations should apply; when the government trespassed in bad faith, it should be entirely denied the right to adverse possession. One quick fix to the problem, proposed by a federal court and endorsed by some commentators, is to call government adverse possession a constitutional taking and require the state to pay just compensation. Part V explains that the problem cannot so easily be wished away, and contends that the text of the Constitution, its history, and Supreme Court precedent all suggest that government adverse possession is not a taking. The solution to the problem presented by government adverse possession rests in righting property law, not distorting constitutional law.
By way of comparative comment:
- It is interesting how "takings" issues are such a significant part of constitutional discourse in the US, and in my nearer neighbour, Australia. New Zealand, without a formal written constitution, and without any "takings" provision, is in a different world in this sense. I have recently been exploring how the absence of this regime makes it easier to "propertise" resources (and also regulate them without having to worry about compensation issues) for a forthcoming article for the New Zealand Universities Law Review.
- Adverse possession was a part of my NZ Land Law course, as it remains part of US property courses. In New Zealand the law is statute based, and there would be very few adverse possession cases in New Zealand: one of the recent ones concerned a fairly isolated block of farm land with a fence in the wrong place (rather than the "squatter's rights" (of an abandoned house, for example) I imagined at law school).
- Marra hasn't steered away from takings.
- An empirical study of adverse possession (comparative, Commonwealth or otherwise) would seem to deserve attention.
May 01, 2012
One of the benefits of a blog (I am told) is the chance to introduce topics and ideas I know I'll never have the chance to turn into full articles. Here is the first - an abstract of the beginning of a response to Henry Smith's "Property as the Law of Things":
"Henry’s Myth; or, The Baby, the Bathwater, and the Bundle of Rights
Professor Smith’s recent article “Property as the Law of Things” (2011) 125 Harv L Rev [forthcoming] argues that the legal realists’ notion of property as a “bundle of rights” should no longer be considered useful to property lawyers and jurists. This paper argues otherwise, pointing out that (a) Smith has misrepresented the intellectual origins of the idea of property as a bundle of rights; (b) the “bundle” is more appropriately seen as a metaphor, rather than a description, and Smith has misrepresented this metaphor; (c) Smith’s new “modular architecture” metaphor bears more resemblance than Smith will admit to the idea of the bundle; and (d) there remain a number of examples for which the bundle of rights is a better analogy than modular architecture. This paper criticises the notion that the bundle of rights metaphor must give way to a modular architecture analogy as “Henry’s myth”, and concludes that we should not too easily abandon an enduring metaphor like the bundle of rights without being aware of what else might be lost: the bundle of rights remains something of a “baby” within the bathwater of property law theory."
Mostly, I think, it is just a good title. It begins from an assessment that Smith - and others - treat the "bundle" as a realist idea, when the phrase significantly pre-dates the realists and the legal realist movement. Further, a bundle is something we can picture quite well - "agenda setting" (as per Katz) or "modular architecture" less so. That said, the abstract is less nuanced than an article would be (as Smith's article is itself more nuanced than its title).
Comments welcome, but as I said, it's not likely to be something I have time to turn into a proper article, so as much as anything, I hope perhaps someone else can pick up on it.
September 02, 2011
Rahmatian on Dematerialized Property
Andreas Rahmatian (Glasgow) has posted two new articles on SSRN. The first is Intellectual Property and the Concept of Dematerialised Property:
A property right (ius in rem, real right) is an abstract legal concept which relates to an object, referred to as “thing” or “res,” or imprecisely, but commonly, “property.” This object of property is a product of legal categorisation; it may be represented by a physical thing or it can be an abstract legal creation itself, as is the case with an intellectual property right. In any event, for the law the “property-object” (whether tangible, intangible or purely intangible) is the product of a legal conceptualisation. The law (private law) creates any res or thing, whether corporeal or not, through the legal concept of real rights. That enables legal recognition of the res in question. The material object (if there is one) only becomes a res in law if real rights are attached to it. Therefore, real rights and res are both “property”, and particularly with (purely intangible) intellectual property, property rights and property objects merge into one. The abstract conceptual res typically has a reifier to make it recognisable in the material world and for the purpose of social interactions. This reifier can be a corporeal object, in which case it is a direct reifier (a table being a direct reifier and incident of a res, chattel), but, for example in case of copyright, a chattel may act not only as direct reifier of the notional personal (moveable) property right (e.g. a canvas of a painting, the score of a symphony, the paper of a manuscript), but also as an indirect reifier of the notional copyright (artistic work, musical work, literary work). The chattel in question represents directly the personal/moveable property (but does not constitute it, because the res remains a legal concept), and, in addition, the chattel represents indirectly the copyright in the work which is expressed and recorded in the chattel in question (a painting, sculpture etc.).
The second is Introduction: Lord Kames and His Principles of Equity:
One should regard the Principles of Equity by Lord Kames (1696-1782) as a work of applied legal philosophy rather than black-letter law. It is secondary whether the law was exactly as stated in the Principles of Equity, especially as that would have been the legal situation 250 years ago anyway. What is relevant is that the book contains a logically organised and principled jurisprudential discussion of scenarios of conflicts and proposed solutions by the law of equity. One should be able to detect and develop a set of legal solution mechanisms, abstract paradigms of concrete legal rules which may serve as an inspiring force for real life solutions without slavish adherence to the model. The Principles of Equity fill the gap between the philosopher who is often creative but not meticulous, and the lawyer who is often meticulous but exegetic. Where the lawyer has to be meticulous and creative and needs the approach of an applied philosopher as well as a legal specialist, particularly in the role as a legal theorist or as a draftsperson of statutes and contracts, he or she will find an excellent teacher in Kames. His work shows that law is not rote learning of statutes and cases and their mechanical application, but a craft as a basis for the art of justice, a craft that should be rooted more in reason than in authority.
[Comments are held for approval, so there may be some delay in posting]
May 19, 2011
Riding the Bus to Work
[W]hich cities were best at getting their residents to their workplaces in a timely and cost-effective manner? By researching coverage, service frequency and percent of total employed residents who can use public transportation, the report aimed to rank cities based on the most convenient overall commute.
May 09, 2011
A Ground Zero Update
From the New York Times - and update on the rebuilding underway at the World Trade Center site.
April 21, 2011
A New Urbanist Call to Arms
New Urbanist heavyweight, Andres Duany, has come out swinging in the recent issue of Metropolis Magazine. Duany has penned a pretty stirring defense of New Urbanism's accomplishments, and makes time to attack the "postmodernists," "architecture students from elite schools," and members of the "avant-garde," that have poo-pooed the movement.
The New Urbanism is in reality an expanding web of ideas, techniques, projects, and people. The Congress for the New Urbanism (CNU) is an institution chartered 18 years ago with a budget, a board, and a staff. . . .New Urbanists wrote HUD’s HOPE VI standards and are thereby responsible for about 111,000 new and renovated units of affordable housing—virtually the entire supply of the last 15 years, with a good proportion designed by CNU members. . . . A diverse array of techniques has been rescued from oblivion and tested in hundreds of built projects. New Urbanist architecture’s visible “nostalgia” is easily dismissed by critics, but its power is really in software and other methods . . .
February 12, 2011
Shameless Self-Promotion Department
For those interested, my article Acceptable Deviance and Property Rights has now been published in the Connecticut Law Review. Here's the abstract:
Compliance with - or deviance from - law is often dependent upon the law’s convergence with - or divergence from - normative sensibilities. Where the legality and social acceptability of behavior diverge, some deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in legal institutions created by divergences in the legality and social acceptability of behavior with regard to property rights. Law functions as an anchor on behavior, providing stability, but also space for deviance which permits the evolution of property rights.
Mark A. Edwards
[Comments are held to make sure they are absolutely dripping with praise, so there may be some delay in posting]
August 11, 2010
Please Suggest A Note Topic
Cross-posted from thefacultylounge....
Well, it's time for that annual ritual: the visits to faculty offices by students looking for a note topic. Many congratulations to you all on making whatever review. It's going to be a lot of work and also some fun (I hope) and also it'll be a nice line on the resume.
So, you want a note topic. Well, I've thinking mostly about property and trusts and estates and legal history these days, so I'm going to re-post some ideas from a few years back here at propertyprof and add a couple of new ideas in here ....
Lo' those many years ago Eben Moglen suggested a topic to me, on federalism in the Taney Court. I am eternally grateful to him. And over the years I've suggested a bunch of topics to students. Some of the better ones in recent years include Amy Wilson's on the jazz influence in property law (got to read it--I'm not going to give away the punchline); Kitty Rogers' on integrating the city of the dead (catchy title, eh?); Leah Green's on the Erie Canal in American legal thought; Elizabeth Bates on statutes of limitations for reclamation of artwork produced by slaves; Chris Williams on an empirical study of smart growth; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law. In terms of a really excellent execution of a remedies topic, I'd point you to Grace Long's The Sunset of Equity: Constructive Trusts and the Law-Equity Dichotomy. It's darn good and it's about reconciling equity doctrine in a couple of diverse areas (injunctions and constructive trust), which I think shows a ton of both creativity and facility with doctrine. It's a model of strong scholarship.
The key to a good student note topic is: that it's do-able over the course of the second year. What's that mean? First, it's a topic that hasn't yet been over-written. That means stay away from takings (exception to follow). Some years ago (like nine at this point) one of my favorite students of all time asked me about writing on takings. And I said, well, spend the weekend looking at what's been done and reading (the then most recent case), Palazzolo and if you can find something new to say, let me know. So the next week she said, "seems like everything has been taken. [pause] I guess that was your point."
Second, find something that's at least a little interesting. You're going to be living with it for a while. Third, find something that's narrow enough that you can read everything on the topic and come to a reasonable conclusion in the time you have available. Fourth, find a topic on which you can say something about the law (this usually means finding a place where law is in flux). It's not a great idea to rehash the arguments against a particular Supreme Court decision. That's been argued and answered, even if you don't like the result. (This advice applies to faculty, as well.) The Columbia Law Review used to have a rule: you can't criticize the Supreme Court in your note. Good advice for second year law students, I think. Not that the Supreme Court has always done everything right; it's just that it's good to stay away from a topic on which you know going in you can't have much effect.
That means that narrow doctrinal topics are really good; brief empirical pieces, are also very good. And I think historical pieces are ideal, because there is so much that's left to be said about legal history. Talk to people at work; often times, the best note ideas come from practicing attorneys who see issues as they're just beginning to make their way through litigation. Some ideas below the fold....
Here are a few things that are on my mind this summer, which might be good student note topics. Just remember, you got these ideas from Brophy. First--and breaking the rule against takings: there are a couple of places in takings where we student work could help us. What procedures have state courts developed to protect against abuses of public use. Some years ago Thomas Merrill published an important study in the Cornell Law Review on this. I think there's a lot to do with this at the state level.
Amidst all this talk about how regulatory takings hurt little people, I think there's room for empirical work on who benefits from the expanded takings jurisprudence. I had a student write a very good paper that studied takings claims in the Fourth Circuit. She found that virtually everyone who successfully sued was a developer. (No surprise here, but I think there's some good work to be done on this topic--looking at reported cases and also studying the process before it reaches the courts. Though the later is much harder.)
I think that there's some fabulous empirical work to be done on the probate process. Last year Jason Kirklin wrote a really terrific piece that looked to Hamilton County in Indiana and examined the probate process there before the Civil War. It provided a pointed comparison with the antebellum testators who Stephen Davis and I studied in Greene County, Alabama -- a county very different in terms of wealth. Jason's essay (available at ssrn here) already set the model for how to do this kind of study; it's some work in terms of data collection, but you can immediately fit into a vibrant debate on who used the probate process and for what purposes. Basically, while it's some work, you're guaranteed to get some pretty exciting stuff. And you never know what you're find in those wills.
I continue to think that we need better measures of the contours of popular constitutional ideas. How much did ideas in Congress in the years leading into Civil War, for instance, influence what was happening in the Supreme Court? And how did those popular ideas relate to one another. One could write about the "doctrine" of popular constitutionalism, but I think we could do some other even more creative things here. For instance, study quantitatively the key terms of Democrat and Whig constitutional theorists -- or get even more regionally specific and study the differences between southern Democrats and southern Whigs. This can bring some nice precision to the nature of Constitutional thought in the years leading into Civil War.
We could use some recent empirical work on how the restatement (third) of servitudes has been interpreted by state courts. How's the progress on replacing touch and concern with a more general "reasonableness" inquiry going?
Doctrinal notes are very helpful and are actually cited. What are the areas of property doctrine that could use updating? I think there's some good work to be done on recent cases on damages for breach of land sale contracts (and specific performance). But there are plenty of places where we could use some more work, especially in property and equity (like agreed boundaries and easements by estoppel).
Property and equity is a topic of growing importance. For instance, are we seeing state courts beginning to limit constructive trusts? Are courts changing their attitudes towards injunctions for violations of servitudes? Are courts invoking property rules or liability rules with more frequency? Are they changing their frequency for invoking either? (Grace Long's already set the model for dealing with these kinds of issues.)
You might take advantage of the miracle of full-text searching on lexis and westlaw and study how various phrases have been used. When do courts criticize something as feudal, for instance. Or you might take a page from Randall Kennedy's book on the n-word and make a comprehensive study of how courts have reacted to the n-word. Quantitative legal history anyone?
There's a ton more to do here -- like looking at citation patterns; which judges are being cited in the pre-Civil War era, for instance? And how far do their ideas migrate?One could focus on one judge and trace out the citations to his opinions as a measure of his influence. (What other states cite him? What are the areas where a judge is influential?) Or you could take a single important case and then work backwards, which judges are cited, to create a picture of how judges spoke to one another through their opinions. There's some theoretical work on the history of the book that you'd want to work up here. Might be a tough project, but one that could pay real dividends.
If you're thinking about case notes, I recommend a serious look at Jones v. Flowers. There's some great work to be done on comparing the rhetoric of Jones and Kelo. I have some comments on that here.
Eugene Volokh and the UCLA law library have a website,lawtopic.com, which is a clearinghouse for law review topics. That's a great contribution to the community; I appreciate their generosity; we all need to start contributing to it. Here's another link, to Stanford Law Review's memo on note topics. I thought you might find it of some interest. And here is a link to University of California, Hastings Professor Roger C. Park's lengthy list of note topics.
June 13, 2010
Rose Cuison Villazor on Oyama
Rose Cuison Villazor has a new article up on ssrn, "Oyama v. California: At the Intersection of Property, Race and Citizenship." It is forthcoming in the Washington University Law Review. Rose's abstract is as follows:
Oyama v. California was a landmark case in the history of civil rights. Decided in January 1948, Oyama held unconstitutional a provision of California’s Alien Land Law, which allowed the state to take an escheat action on property given to U.S. citizens that had been purchased by their parents who were not eligible to become citizens. At the time, the country’s naturalization law prohibited Japanese nationals from becoming U.S. citizens. Thus, the Alien Land Law applied primarily to Japanese nationals and Japanese Americans. Critically, Oyama recognized that the state’s attempted taking of a citizen’s property because his father was Japanese constituted a violation of his equal protection rights. In so doing, Oyama created a paradigm shift in the treatment of property rights of Japanese Americans. Despite its significance, Oyama has received surprisingly little attention in legal scholarship. Leading constitutional and property law casebooks have virtually ignored the case. This Article seeks to correct that oversight. As this Article argues, Oyama fills a neglected void in our collective historical understanding of race, property law, and citizenship. Equally important, it provides a timely normative and prescriptive response to contentious contemporary debates about the validity of state and local law restrictions on leaseholds against a select group of noncitizens, namely undocumented immigrants. By calling attention to the historical and contemporary contributions of this largely unnoticed case, this Article argues why Oyama should be included in the canons of property and constitutional laws.
Posted by Alfred Brophy
April 26, 2010
Acceptable Deviance and Property Rights: a shameless plug and request for feedback
A draft of my article Acceptable Deviance and Property Rights (forthcoming, Connecticut Law Review, which I link to here because it has an uncommonly gorgeous website for a law review) is finally up and running at SSRN. Frankly, I already have some changes in mind for it. I would really appreciate any feedback anyone would care to give. You can e-mail me any suggestions at mark.edwards at wmitchell.edu, or post them in the comments section. Here's the (admittedly rather abstract) abstract:
Compliance with – or deviance from – law is often dependent upon the law’s convergence with – or divergence from – normative sensibilities. Where the legality and social acceptability of behavior diverge, deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in legal institutions created by divergences in the legality and social acceptability of behavior with regard to property rights. Law functions as an anchor on behavior, providing stability, but also space for deviance which permits the evolution of property rights.
[comments are held for approval, so there will be some delay in posting]
December 22, 2006
"Medium Rare Scrutiny"
I need a break from grading Con Law exams, so I thought I would share with my fellow Property Professors a gem of an article describing the Supreme Court's "tiers of scrutiny" for reviewing laws under the Constitution. Many of you may try to introduce the class to strict scrutiny, intermediate scrutiny, and the rational basis test when teaching some aspect of Constitutional Law to 1L property students. And if you are looking for an article that describes this area of the law--including the fact that the three standards of review are, in reality, many more than three--you need look no further than Prof. Michael Stokes Paulsen's six-page masterpiece, Medium Rare Scrutiny, 15 Const. Comm. 397 (1998).
My students love this article, because it is both informative and hilarious. Paulsen compares the Court's tiers of scrutiny to the way he barbecues steak in his backyard in Minneapolis on his Weber grill. Thus, he speaks of Rare Scrutiny, Medium Rare Scrutiny, Medium Scrutiny, Medium Well Scrutiny, and Well Done Scrutiny. Here is a short excerpt from the article, one describing "Romer-type rational basis with a bite" scrutiny, that should give you a feel for Paulsen's magic:
But Romer-type scrutiny is probably better labeled "rare to medium rare," or--if we're really being honest--"medium-well-to-well-done-but-call-it-rare-to-medium-rare-because-that's-hipper-and-I-don't-want-to-admit-what-I'm-really-doing" scrutiny. As everyone knows, rational basis with bite is really just another way of saying "singe the statute." As Gerald Gunther might (or might not) put it, such scrutiny is "rare" in theory and fatal in fact--dead, dead meat. It's amazing how many times "rare to medium rare" ends up being burned, when the Supreme Court is barbecuing the Constitution.
This is one of my all time favorite articles. If you get bored grading your exams, take a ten minute break and read Medium Rare Scrutiny. It will clear your palate for the next batch of blue books.
[Comments are held for approval, so there will be some delay in posting]