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Wednesday, February 23, 2011

Dagan's New Book - Property: Values and Institutions

Oxford University Press has just published Hanoch Dagan's new book Property: Values and Institutions.  Here is the publisher's description:

Property: Values and Institutions, by Hanoch Dagan, offers an original understanding of property, different from the dominant voices in the field, yet loyal to the practice of property. It rejects the misleading dominant binarism in which property is either one monistic form, structured around Blackstone's (in)famous formula of sole and despotic dominion, or a formless bundle of rights. Instead, it conceptualizes property as an umbrella for a set of institutions bearing a mutual family resemblance. It resists the prevailing tendency to discuss property through the prism of only one particular value, notably efficiency. Dagan argues that property can, and should, serve a pluralistic set of liberal values. These property values include not only autonomy and utility, which are emphasized by many contemporary scholars, but also labor, personhood, community, and distributive justice.

Dagan claims that property law, at least at its best, tailors different configurations of entitlements to different property institutions, with each such institution designed to match the specific balance between property values best suited to its characteristic social setting. Dagan develops this theoretical account and applies it to key doctrinal contexts. In particular, he analyzes the normative underpinnings of the doctrines regulating the interactions between landowners and governments (both eminent domain and regulatory takings doctrines) and those regulating the governance of property owned by multiple owners (such as co-ownership, marital property, and the law of common interest communities).

I always value Dagan's work, and look forward to reading the book.  For those of you who will be at the upcoming ALPS conference, there will be a session devoted to the book.

Ben Barros

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February 23, 2011 in Books, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 25, 2010

Orth's Reappraisals in the Law of Property

Orth_Reappraisals John Orth's charming and insightful Reappraisals in the Law of Property has just appeared in Robin Paul Malloy's "Law, Property, and Society" series. The book collects a series of Orth's essays, many of which have appeared in the Green Bag. Here's the description from Ashgate's website:

Some of the most basic doctrines of property law are very old, many dating to the medieval era. How can legal rules that were born so long ago remain viable today? In Reappraisals in the Law of Property, author John V. Orth considers various topics in order to discover the forces that have been made and are continuing to remake these areas of the law. Orth proposes three forces in particular that have shaped the development of property law over time: the inertial force of tradition, the reforming power of judicial and legislative activism, and the constant challenge of academic criticism. Together, these themes form the foundation of a critical and challenging work, one that re-evaluates property law and demonstrates both its enduring consistency and the unique and often drastic ways in which it has evolved in the modern era.

I am certain that property profs will enjoy reading Orth's commentary on areas of property, such as tenancy by the entirety, leases, and easements, as well as his speculation on the importance of "driving forces," like intention, competition, and fiction.  And I hope that you'll encourage your library to add this to their collection.

Al Brophy

August 25, 2010 in Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 15, 2010

Rose Cuison Villazor on Gross' What Blood Won't Tell

Rose Cuison Villazor has another new essay up on ssrn, "Reading between the (Blood) Lines," which appeared in the Southern California Law Review.  It responds to Ariela Gross' new book, What Blood Won't Tell.  Here is the abstract:

Legal scholars and historians have depicted the rule of hypodescent - that "one drop" of African blood categorized one as Black - as one of the powerful ways that law and society deployed to construct racial identities and deny equal citizenship. Ariela J. Gross’s new book, "What Blood Won’t Tell: A History of Race on Trial in America," boldly complicates the dominant narrative about hypodescent rules in legal scholarship. On the one hand, "What Blood Won’t Tell" argues that the legal and social construction of race was far more complex, flexible and subject to manipulation than the scholarship regarding the rules about blood distinctions has suggested. On the other hand, "What Blood Won’t Tell" highlights circumstances, both historically and in recent memory, of the ways in which blood distinctions played crucial roles in shaping the identity of people of color, including indigenous peoples. Importantly, "What Blood Won’t Tell" also examines how blood quantum rules relate to contemporary efforts to reassert indigenous peoples’ sovereignty and claims to lands.

This Review highlights the important contributions of "What Blood Won’t Tell" to our understanding of the racial experience of indigenous peoples and the contemporary methods used to remedy the present-day effects of indigenous peoples’ colonial experience. "What Blood Won’t Tell" advances a more robust account of the racialization of people of color through rules about blood differences in at least three ways. First, it places the colonial experience of indigenous peoples within the larger historical contexts of racial subordination and efforts to promote White domination and privilege. Second, it underscores the federal government’s ongoing responsibility to counteract the long-standing effects of its past misdeeds by addressing indigenous peoples’ unresolved claims to lands that have been stolen from them. Third, it allows us to take a careful look at the relationship between blood quantum rules and the right of indigenous peoples to exercise self-determination. Taken together, these three perspectives reveal the immense challenges inherent to remedying the long-term effects of the racialization and colonization of indigenous peoples. 

Post by Alfred Brophy

June 15, 2010 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Hernando de Soto and Property in a Market Economy

De Soto Book I'm delighted to announce the publication of Hernando de Soto and Property in a Market Economy, a book that I edited for Ashgate.  Here's the back-cover blurb:

Hernando de Soto is one of the world's leading public intellectuals. His books The Mystery of Capital and The Other Path have had a tremendous impact on debates about international development. But his work also has been controversial, and some of his arguments have received sustained criticism.  One of de Soto's core ideas is that the institution of private property is necessary for the proper functioning of a market economy.  Yet even though many property scholars closely follow de Soto's work, his ideas have been neglected in property law scholarship.  And although his work has been widely discussed in the context of property in developing countries, it has not had the same impact on the property issues that arise in mature market economies like the United States. This new collection seeks to remedy this neglect, bringing together a diverse group of scholars to apply de Soto's work to a wide range of contemporary issues in property law and theory. The important contribution it makes to debates and controversies in property law, as well as in related economic fields, will appeal to scholars of both law and economics.

And the table of contents:

Introduction, D.Benjamin Barros

The costs of regulation or the consequences of poverty? Progressive lessons from de Soto, Eduardo M. Peñalver

Invasions, innovation, environment, Carol M. Rose

Culture and capitalism: a comment on de Soto, Gregory S. Alexander

Hernando de Soto and the histories of property law, Alfred L. Brophy

Anticipating de Soto: allotment of Indian Reservations and the dangers of land-titling, Ezra Rosser

Leaving the body of property law? Meltdowns, land rushes, and failed economic development, Rashmi Dyal-Chand

The bell jar and the bullhorn: Hernando de Soto and communication through title, Nestor M. Davidson

Red tape and gridlock, Larissa Katz

Mercantilism, American style, Nicole Stelle Garnett

Hernando de Soto, formal property systems, and the intangible asset paradox, Juliet M. Moringiello

The economics of welfare: of Hernando de Soto and Susette Kelo, Denis J. Brion

And some nice things that have been said about the book:

'In Hernando de Soto and Property in a Market Economy, leading property scholars masterfully illuminate, challenge, and build on de Soto’s work, connecting it to central questions of property theory and social policy. This perceptive and multi-faceted exploration of how ownership works (or fails to work) offers essential insights to anyone interested in property rights and institutions.'  Lee Anne Fennell, University of Chicago Law School, USA

'This collection is a rich exploration and critique of Hernando de Soto's contributions to our understanding of the relation between the institution of property and the market economy. It is an essential resource for all interested in the theoretical, social, economic and historical underpinnings of land titling, and more generally property law and institutions, as a tool in economic development.' Claire Priest, Yale Law School, USA

You can read the introduction here.

Thanks to all the contributors, and to Lee and Claire.

Make sure your library has a copy!

Ben Barros

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March 29, 2010 in Books, Mortgage Crisis, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 22, 2010

Ordering the City Book Club at Prawfs

This week, PrawfsBlawg is hosting a book club on Nicole Garnett's great new book Ordering the City.  I'll post links as the contributions go up:

Ben Barros, Complexity and the City

Tracey Meares, Ordering the City

Chris Serkin, Ordering the City

Lee Fennell, Ordering the City

Steve Clowney, Order and the Poor

Michelle Wilde Anderson, Ordering the City

Nicole Stelle Garnett, Ordering the City, Redux

Michelle Wilde Anderson, The Purposes of Planning (the Good Kind): Ordering the City Part II

Ben Barros

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March 22, 2010 in Books, Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 25, 2010

Atticus Finch: Friend or Foe?

The year 2010 marks the fiftieth anniversary of the publication of To Kill a Mockingbird.  Of course, this novel has been very influential both inside and outside the legal profession, and it was again the subject of headlines a few months back.  Many readers will recall that, last August, Malcolm Gladwell published an article in the New Yorker critical of the central hero in the book -- lawyer Atticus Finch.  Given Finch's iconic status, several writers quickly rose to his defense (see here, for example).  Others suggested that Gladwell's criticism did not go far enough.

I am happy to report that my colleague at John Marshall, Lance McMillian, has entered the fray with his new article, Atticus Finch as Racial Accommodator:  Answering Malcolm Gladwell's Critique, which he recently posted on SSRN.  Here's the abstract:

Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

I think these discussions of Finch raise interesting and important questions about our role as lawyers, and the role models we choose.  And it's worth pointing out that there is a tenuous connection to property law here.  Finch's fictional law practice included property matters, and the most notable case in which he was engaged in the book (aside from the criminal trial of Tom Robinson) was helping Walter Cunningham overcome issues arising from an entailed estate.

Mike Kent

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January 25, 2010 in Books, Miscellaneous, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, December 11, 2009

Peñalver and Katyal's Property Outlaws

Yale University has just published Property Outlaws, by Eduardo M. Peñalver (Cornell) and Sonia K. Katyal (Fordham).  Here's the burb from the YUP website:

Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.

The authors employ wide-ranging examples of the behaviors of “property outlaws”—the trespasser, squatter, pirate, or file-sharer—to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of “property outlaws” and legal innovation should be cultivated in order to maintain this avenue of legal reform.

Ben Barros

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Eduardo Moisés Peñalver is a professor at the Cornell Law School.


Sonia K. Katyal is a professor of law at Fordham Law School.

December 11, 2009 in Books, Property Theory, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Tuesday, August 18, 2009

Lee Fennell's The Unbounded Home

9780300122442 Yale University Press has just released Lee Fennell's book The Unbounded Home.  Here's the publisher's description:

The Unbounded Home grapples with a core metropolitan reality -- that the value and meaning of a home extend beyond its property lines to schools, shops, parks, services, transportation, neighbors, neighborhood aesthetics, and even market conditions. Lee Anne Fennell unpacks the resulting tension between the homeowner’s desire for personal autonomy at home and the impulse to control what happens in surrounding areas to safeguard the home’s value.

 

The stakes are high; this conundrum carries implications for nearly every facet of residential life, including the many neighborhoods in the United States that are segregated by race and social class. Fennell shows how a new understanding of homeownership and  innovations that increase the flexibility of property law can address critical issues of neighborhood control and community composition that have been simmering unresolved for decades.

I've read the book, and it is fantastic.  It is a must-read for anyone interested in (among other things) land use and local government issues.

 

Ben Barros

 

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August 18, 2009 in Books, Land Use, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Thursday, March 26, 2009

Does Patty Salkin Ever Sleep?

I recently received a press release announcing the publication of the new five-volume American Law of Zoning from West, edited by Patty Salkin.  Given the absurd number of other publications that Patty produces, not to mention her blog The Law of the Land, I wonder whether she has reached a higher stage of human evolution that does not require sleep.

Ben Barros

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March 26, 2009 in Books, Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2009

Treanor on Epstein's Supreme Neglect

William Michael Treanor (Fordham) has posted Supreme Neglect on SSRN.  Here's the abstract:

In Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the clause nor original understanding support Epstein's broad doctrine of regulatory takings. Indeed, both text and the early history of the clause indicate that the clause did not apply to regulations at all; it applied only to physical seizures by the government- situations where the government physically take[s] property by, for example, building a road or a school on it.

Ben Barros

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February 19, 2009 in Books, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2008

Glaeser and Gyourko on Federal Housing Policy

Edward L. Glaeser (Harvard Economics) and Joseph Gyourko (Wharton) have a new book out from AEI called Rethinking Federal Housing Policy.  The book is available as a pdf from the AEI website through the previous link.  Here's the publisher's blurb:

Despite the recent drop in house prices, housing remains unaffordable for many ordinary Americans. Particularly along the coasts, housing remains extremely expensive. In Rethinking Federal Housing Policy: How to Make Housing Plentiful and Affordable, Edward L. Glaeser and Joseph Gyourko explain why housing is so expensive in some areas and outline a plan for making it more affordable.

Policymakers must recognize that conditions differ across housing markets, so housing policies need to reflect those differences. The poor and the middle class do not struggle with the same affordability issues, so housing policy needs to address each problem differently. The poor cannot afford housing simply because their incomes are low; the solution to that problem is direct income transfers to the poor, rather than interference with the housing market. 

In contrast, housing is unaffordable for the middle class because of local zoning restrictions on new home construction that limit the supply of suitable housing. The federal government can sensibly address this issue by providing incentives for local governments in these markets to allow more construction.

Ironically, current subsidies for construction of low-income housing only tie impoverished Americans to areas where they have limited job prospects. These supply subsidies also crowd out private-sector construction and benefit politically-connected developers. Mortgage interest deductions, which are intended to make housing more affordable for the middle class, simply allow families who can already afford a house to purchase a bigger one. In restricted, affluent markets, these deductions increase the amount families can pay for a house, driving up prices even higher.

Glaeser and Gyourko propose a comprehensive overhaul of federal housing policy that takes into account local regulations and economic conditions. Reform of the home mortgage interest deduction would provide incentives to local governments to allow the market to provide more housing, preventing unnecessary price inflation. Federal subsidies for the production of low-income housing should be eliminated and the funds reallocated to increase the scope of federal housing voucher programs which allow poor households to relocate to areas of greater economic promise.

A radical rethinking of policy is needed to allow housing markets to operate freely--and to make housing affordable and plentiful for the middle class and the poor.

Ben Barros

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December 16, 2008 in Books, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2008

Teaching With Popper's Bordering on Madness

Popper_book Carolina Academic Press is issuing a second edition of Andrew F. Popper's novel Bordering on Madness:  An American Land Use Tale:

Bordering on Madness is a novel about a battle between a university and a community over proposed construction of a new campus facility. As the land use fight ripens, the homeowners and university become combatants. The opposition becomes the enemy, depersonalized and reprehensible.

From a teaching perspective, the novel allows for discussion of conventional and unconventional land use strategies as well as the development of a number of issues: When does one person have the right to control the lawful use of property owned by another? When does aggressive advocacy become unethical, unacceptable misconduct? What is the role of government when it comes to disputes between those opposed to development and those seeking approval of a proposed project? What are the best ways to handle the anger and frustration of individuals threatened by what they perceive as destructive change?

At the same time, CAP is publishing a companion casebook, co-authored by Popper and land-use experts Patty Salkin David Avitable:

Professor Andrew F. Popper’s new innovative casebook A Companion to Bordering on Madness: An American Land Use Tale delves into the legal, political, and strategic issues raised in his recent novel, Bordering on Madness, a tale about a university and a community who go to war over a building proposal.

Using the plot of the novel as a starting point, the Companion provides commentary as well as numerous edited cases and articles to discuss the conflict between those who seek to develop land and those who oppose that development.

“The notion of using fiction as a building block to teach a field is fairly common – but the idea of a casebook that addresses in depth the areas raised in a full-length novel is unique,” said Popper. “The novel touches on cutting-edge legal issues that could not be explored adequately. The Companion provides a wonderful opportunity to set out those issues and strategic challenges and explore the pertinent judicial decisions and scholarship in the field, something that cannot – and should not – be done with fiction.”

The story in the novel is a familiar one in higher education and many other fields. Battles between local residents and universities or other institutions are legendary and the novel and Companion build on one of those legends: the complex dispute some years ago between American University Washington College of Law and some of the surrounding residential communities over the construction of a new law school building.

“At any one time, throughout the United States, there are thousands of battles of this type,” Popper said. “Universities, hospitals, churches, commercial developers and even homeowners who want to put an addition onto their homes find quickly that owning land does not mean necessarily having the right to use land – even when those uses are perfectly consistent with the laws and regulations applicable to the subject property.”

Looks like a very innovative way of presenting these issues!

Ben Barros

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October 6, 2008 in Books, Land Use, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2008

Wolf on Euclid

Euclid Propertyprofs will want to check out Michael Allan Wolf's new book The Zoning of America: Euclid v. Ambler, which is appearing next month in the University Press of Kansas' important series on Landmark Law Cases.  Here is the description from the Kansas website:

When the Cleveland suburb of Euclid first zoned its land in 1922, the Ambler Realty Company was left with a sizable tract it could no longer sell for industrial use—and so the company sued. What emerged was the seminal zoning case in American history, pitting reformers against private property advocates in the Supreme Court and raising the question of whether a municipality could deny property owners the right to use their land however they chose.

Reconstructing the case that made zoning a central element in urban planning for cities and towns throughout America, Michael Allan Wolf provides the first book-length study of the Supreme Court’s landmark Euclid v. Ambler decision. Wolf describes how the ordinance, and the defense of it, burst onto the national stage and became the focus of litigation before moving all the way to the nation’s highest court. He subsequently reveals how and why Justice George Sutherland broke from the Court’s conservative bloc to support the urban reform movement eager to protect residential neighborhoods from disturbances created by rapidly expanding commercial, industrial, or multifamily uses of land. Following that decision, America saw the rapid proliferation of zoning ordinances, which greatly increased the power of local government to control and rationalize urban planning.            

As Wolf attests, many of today’s environmental and land use laws might not have been deemed legal had Euclid v. Ambler been decided differently. But he also points out the potential dangers that emerged from the decision, such as its anticompetitive impact on the real estate market, its catalyzing effect on suburban sprawl, and its establishment of a legal basis for excluding minority groups from neighborhoods.

Wolf’s compelling account makes it clear that Euclid v. Ambler fundamentally altered how we think about the urban landscape, changed the way our cities and suburbs are organized, and left a long shadow over subsequent cases such as the controversial Supreme Court decision in Kelo v. New London (2005).

I'm looking forward to reading it.

Alfred Brophy

July 23, 2008 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, July 14, 2008

Michael Heller's The Gridlock Economy

This past weekend, I read Michael Heller's new book The Gridlock Economy:  How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.  The "this past weekend" part of the previous sentence says a lot of good things about the book -- I have two young kids, and not a lot of free time on the weekends.  The Gridlock Economy is one of those rare books that makes important theoretical points while being an easy, enjoyable read.  Like Hernando de Soto's The Mystery of Capital, The Gridlock Economy is clearly written and illustrates its points with engaging examples.  You could assign the whole book for a week's reading in a class and not feel guilty about overwhelming your students.

The book's core points build on insights that Heller first developed in The Tragedy of the Anticommons: Property in the Transition from Marx to Markets.  The basic idea of the anticommons is that highly-divided ownership of property can lead to the underutilization of resources.  If too many people have control over a resource, decisionmaking gets gummed up, transaction costs multiply, and resources are underused.  Heller's iconic example of the anticommons is Moscow storefronts, where the right of many "owners" to veto various uses led to stores that remained vacant while kiosks thrived on the sidewalks just outside.  If the tragedy of the commons can be seen as being caused by an absence of property rights, the tragedy of the anticommons can be seen as being caused by an overabundance of property rights.  Heller argues that we should be seeking the sweetspot between too much and too little property:  "Well-functioning private property is a fragile balance poised between the extremes of overuse and underuse." (p. 19).

The Gridlock Economy explores this theme in a number of interesting settings, including biotech patents, broadcast spectrum, land use regulation, and land assembly.  My one quibble is that the book occasionally crams problems that don't seem to fit into the anticommons category.  One example is the fiasco of underutilized broadcast spectrum owned by television broadcasters. (p. 96)  If the broadcasters had stronger property rights in this spectrum, it probably would not be underutilized to such a degree.  This particular problem therefore seems to be more about too little property, rather than too much property.  Another example is the problem of highly-fractionated interests that results from multiple generations of a family passing property through intestacy.  After a few generations, a single plot of land can have scores of owners.  These multitude of owners can lead to real anticommons problems -- just imagine trying to get the consent of thirty cousins to do anything with a piece of property.  As a remedy for this sort of multiple-ownership problem, the law allows the property to be partitioned.  For property with many owners, partition is usually achieved through a judicial sale of the property, with the proceeds divided among the owners.  As Heller describes (p. 121)the partition process has a ton of flaws, and needs to be reformed.  But Heller's complaints about partition are about the flaws in a remedy for an anticommons problem, not the anticommons problem itself.

As noted, these are just quibbles.  This is a great book.

Ben Barros

Crossposted to PrawfsBlawg

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July 14, 2008 in Books, Property Theory, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Friday, August 31, 2007

Freyfogle: On Private Property: Finding Common Ground on the Ownership of Land

Freyfogle The proofs of Eric Freyfogle's On Private Property: Finding Common Ground on the Ownership of Land, forthcoming in November from Beacon, has just appeared in my mailbox.  Beacon Press provides the following description:

Private property poses a great dilemma in American culture. We revere the institution and are quick to protect private-property rights, yet we are troubled when landowners cause harm to their neighbors and communities, especially when new development fuels sprawl and degrades the environment. Recent Supreme Court cases and new state laws around eminent domain have generated great controversy, and yet many people are unsure where they stand on this issue.

In this wide-ranging inquiry, law professor Eric Freyfogle explores the inner workings of the familiar but poorly understood institution of private property. He identifies the three threats it currently faces: government mismanagement, the recently reinvigorated property rights movement, and conservation groups' efforts to buy tracts of land in order to protect them. He then offers a solution in the middle ground between the extreme sides of these debates.

In On Private Property, Freyfogle gives glimpses of landownership's surprising past, revealing its complex links to liberty and ultimately showing why private property rights must remain consistent with a community's overall good. In conclusion, Freyfogle constructs piece by piece a provocative new vision of landownership, at once respectful of private interests yet responsive to communal needs.

It's a great combination of history--with chapters like "The Lost Right to Roam"--as well as contemporary areas of much contention--with chapters on "When We Should Pay" and a concluding chapter on "The Responsible Landowner: A Bill of Rights."

The search for common ground is a noble purpose.  I think you will enjoy the book and I think it's destined for lots of class adoptions.  And I hope to have a few more thoughts about this important book later.

Alfred L. Brophy

August 31, 2007 in Books | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 7, 2007

Love Cemetery: Restoring Access to a Slave Cemetery

Lovecemetery_2 Just read China Galland's charming Love Cemetery, which has just appeared from HarperCollins.  It  combines just about all of my interests, for it is a story about an African American cemetery in East Texas (that dates to the 1830s), which a community pulled together to clean up from 2003-06.  Garland links the account of the clean-up with her exploration of the community's history with taking land from some of its black residents.  Ah, cemeteries and land loss, memory and reparation.  Now those are some topics I'm interested in!

Here's the description from HarperCollins:

Love Cemetery is the story of one woman trying to come to terms with racism––on both personal and public levels. When China Galland visited her childhood hometown in east Texas, she learned of an unmarked cemetery for slaves––Love Cemetery. Her ensuing quest to reclaim the ground, to mark it, unearths racial wounds that have never completely healed.

Research into county historical records and interviews with local residents in Harrison County––at one time the largest slave–owning county in Texas––led Galland to the discovery of Love Cemetery, an African–American communal burial ground that the local community had been locked out of for forty years. Research became activism as she helped organize a grassroots, interracial committee, made up of local religious leaders and lay people, to work on restoring community access to Love.

Metaphorically, Love Cemetery is only one example of a much larger body of unearthed history. The author presents material that reaches back to the time of slavery and post–civil war Reconstruction, of lynchings and "landtakings" (the theft of land from African Americans). Love Cemetery shines a light on the national legacy and shame of slavery through an inspiring story of one community's reconciliation in their united effort to mark a piece of American history. The history of Love Cemetery is the history of slavery in the United States––a history that touches us all–black or white. The message of Love Cemetery is ultimately one of tremendous hope as members of both black and white communities come together to right an historical worng, and in so doing, discover each other's common dignity.

But my favorite line in the whole book:

[I]n Texas, he land belongs to the dead; descendants have a right of access to their deceased family members, regardless of how much private property they have to cross. [41]

Ah, cemetery law!

Alfred L. Brophy
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August 7, 2007 in Books | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 25, 2007

Why Conservation Is Failing and How It Can Regain Ground

Freyfogle Why Conservation Is Failing and How It Can Regain Ground is Eric Freyfogle's new book from Yale University Press.  The YUP description is as follows:

Critics of environmental laws complain that such rules often burden people unequally, restrict individual liberty, and undercut private property rights. In formulating responses to these criticisms, the conservation effort has stumbled badly, says Eric T. Freyfogle in this thought-provoking book. Conservationists and environmentalists haven’t done their intellectual homework, he contends, and they have failed to offer an understandable, compelling vision of healthy lands and healthy human communities.

Freyfogle explores why the conservation movement has responded ineffectually to the many cultural and economic criticisms leveled against it. He addresses the meaning of good land use, describes the many shortcomings of “sustainability,” and outlines six key tasks that the cause must address. Among these is the crafting of an overall goal and a vision of responsible private ownership. The book concludes with a stirring message that situates conservation within America’s story of itself and with an extensive annotated bibliography of conservation’s most valuable voices and texts—important information for readers prepared to take conservation more seriously.

Propertyprofs ought to be familiar with Freyfogle's important 2003 book The Land We Share: Private Property and the Common Good.

Alfred L. Brophy
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July 25, 2007 in Books | Permalink | Comments (0) | TrackBack (0)

Friday, May 4, 2007

Are Book Reviewers Out of Print?

So asks the New York Times in this important article, which comments on the Los Angeles Times' recent decision to merge the book review and style sections of its Sunday paper.   I fear reviews are increasingly being relegated to on-line discussions.  Dedicated propertyprof readers may recall that we talk about book reviews every now and then.  And at the Law and History Review, a journal for which I have immense respect and affection, there has been some discussion of whether we should move to an all on-line format for reviews.  It would certainly cut down lag time in publication dramatically and also allow us to run more reviews.  However, taking a page out of the history of the book literature, I think that print confers status.

I have a few more (very few more) thoughts on this topic, which should be up next week in the inaugural issue of the CONNtemplations, the Connecticut Law Review's on-line supplement.  One of these days we ought to talk about exclusively on-line journals and their implications for the future of legal scholarship.

Alfred L. Brophy
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May 4, 2007 in Books | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 7, 2007

Fox on Conceptualising Home

Lorna Fox (University of Durham) has a new book out called Conceptualising Home.  Here's the blurb:

It is difficult to overstate the everyday importance of home in law. Home provides the backdrop for our lives, and is often the scene or the subject of legal disputes. In addition, in recent decades there has been growing academic interest in the meaning of home, which has prompted empirical studies and theoretical exploration in a wide range of disciplines. Yet, while the authenticity of home as a social, psychological, cultural and emotional phenomenon has been recognised in other disciplines, it has not penetrated the legal domain, where the proposition that home can encapsulate meanings beyond the physical structure of the house, or the capital value it represents, continues to present conceptual difficulties. This book focuses on the competing interests of creditors who lend money against the security of the property and the occupiers who dwell in the property, in the context of possession actions. By mapping the concept of home as it has evolved in other disciplines against existing legal frameworks, Conceptualising Home examines the possibilities for developing a coherent concept of home in law.

I've been a fan of Lorna's previous work on home, and I'm looking forward to getting my hands on a copy of her book.  As many readers know, this is a subject near and dear to my heart.

Ben Barros

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March 7, 2007 in Books, Property Theory, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Thursday, September 14, 2006

Call For Authors: New CAP Series on Comparative Law

Andrew J. McClurg (University of Memphis) is editing a new series of comparative law texts for Carolina Academic Press.  They are seeking authors for various subjects, including property:

Dear Colleagues:

Carolina Academic Press (CAP) is beginning a series of comparative law texts called the “Contextual Approach Series” (CAS).  I’m serving as editor.  CAP and I are looking for U.S. law professors in a variety of subject areas to serve as lead authors for entries in the series.

The goal of the CAS is to create a series of interesting, student-friendly, self-contained, accessible comparative law books that—using co-authors from the U.S. and two other countries—clearly and concisely explain how law works in practice around the world in different subject areas.  The books will be paperbound and roughly 200 pages.
The first book, Practical Global Tort Litigation: U.S., Germany and Argentina (McClurg, Koyuncu and Sprovieri) (PGTL), is in publication production and available for use as a model.  Detailed guidelines for authors in the series also are available.

As the title of the series suggests, each book will be based on a set of case or problem facts raising prototypical, universal legal issues in the particular subject area. This contextual approach is intended to bring comparative law to life and make it digestible and understandable to law students by giving them a foundation to attach the law to.

As an example, PGTL takes a simple products liability case involving a shattering glass jar through the legal systems of the U.S., Germany, and Argentina.  Other examples: a criminal law text could take a simple theft case through the U.S. and two other legal systems; a family law text could take a divorce problem through the U.S. and two other systems; a criminal procedure book could compare the handling of a search, arrest and confession in the U.S. and two other systems; a wills and trusts book could address property disposition upon death in the U.S. and two other legal systems, etc.

The three co-authors will explore and analyze issues raised by the problem facts from the perspective of their respective legal systems in side-by-side country-specific sections.

The U.S. author will serve as the lead author and will enlist, with the editor’s help, the two non-U.S. authors.  The U.S. author has primary responsibility for supervising, editing, and integrating the contributions of the non-U.S. authors.  This will require learning the relevant law of the two non-U.S. countries.  In selecting countries for study, one goal is to choose legal systems that are representative of major world regions, legal traditions or both.

Prospective authors should possess the following: (1) expertise in the relevant subject matter from a U.S. perspective; (2) excellent writing and composition skills; (3) dependability and reliability; (4) an eye for detail in consistency of organizational structure, style, formatting, and citation style; and (5) the time and resources to pursue the project to completion on deadline (roughly 18 months from signing of contract).

A lack of experience or background in comparative law is not a bar if you possess the above qualifications and an interest in studying and learning about other legal systems.  The non-U.S. co-authors are expected to provide the primary expertise regarding foreign law.  I had no prior background in comparative law before writing PGTL with Adem Koyuncu in Cologne and Luis Sprovieri in Buenos Aires.  On the other hand, as a former faculty member at the Florida International University College of Law, I did have access to international resources, which proved essential.

All subjects are open to consideration, although we are particularly interested early on in first-year courses and core upper-level courses.

If you have an interest in becoming an author in this series, please send a preliminary inquiry to amcclurg@memphis.edu that includes: (1) the subject area you would be interested in writing about; (2) a c.v.; and (3) any early ideas you might have regarding a set of problem facts and candidates for the two non-U.S. countries (and co-authors in those countries).

I look forward to hearing from you.  When I was teaching at FIU and living in Miami, I became convinced that comparative law will be a cornerstone of U.S. legal education.  Writing GPTC was one of the most interesting experiences of my academic career.  I learned more than in any year since my first year of law school.

Regards,

Andrew J. McClurg
Herbert Herff Chair of Excellence in Law
Cecil C. Humphreys School of Law
The University of Memphis

Ben Barros

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September 14, 2006 in Books | Permalink | Comments (0) | TrackBack (0)