PropertyProf Blog

Bromley on Land Formalization

The Journal of Land Use Policy has an article in press by Daniel W. Bromley (Wisconsin, Applied Economics) called Formalising Property Relations in the Developing World: The Wrong Prescription for the Wrong Malady.  I can't find a link now, but will post one if it becomes available.  Here's the abstract:

Formalisation of property relations through the registration of land and the issuance of titles is but the latest in a long history of optimistic policy prescriptions imposed on the poor nations of theworld. As with the discreditedWashington Consensus, the imperative of formalisation flows from the flawed inductive logic that says” “rich countries have formalised tenure, therefore formalisation of tenure will help make you rich.”Unfortunately,empirical research on formalisation of tenure as a stimulus to agricultural investment is unable to establish any robust and reliable connection between “more secure” tenure and enhanced agricultural productivity. Urban slum dwellers who get titles but who are without work cannot possibly leverage credit from the banking sector. Formalisation erodes and displaces existing social networks and arrangements that do offer security. Formalisation offers little assurance that beneficial outcomes are inevitable. As with a long list of previous simple solutions to complex problems, this too shall pass.

This should be of interest to folks who are interested in Hernando de Soto's work (either pro or con).

Ben Barros

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Two from Smith

Henry E. Smith (Yale) has posted two new articles on SSRN.

Community and Custom in Property

Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This paper provides an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else equal, informationally demanding customs require an audience with a high degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can piggyback on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e. outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information cost theory of custom sheds some light on the history and controversies over the numerus clausus (standardization and limitation of the set of basic property forms) and on the question of baselines of property entitlements in the law of takings.

Governing Water: The Semicommons of Fluid Property Rights

This Article applies an information-cost theory of property to water law. Because of its fluidity, exclusion is difficult in the case of water and gives way to rule of proper use, i.e., governance regimes. Looking at water through this lens reveals that prior appropriation employs more governance and riparianism rests more on a foundation of exclusion than is commonly thought. The development of increasing amounts of exclusion and governance are both compatible with a broadly Demsetzian account that is sensitive to the nature of the resource. Moreover, hybrids between prior appropriation and riparianism are not anomalous. Exclusion strategies based on boundaries and quantification allow for rights to be formal and modular, but this approach is particularly challenging in the case of water and other fugitive resources. The challenges of exclusion that water and other fugitive resources present often lead to a semicommons in which elements of private and common property both coexist and interact.

Ben Barros

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Dagan on Just and Unjust Enrichments

Hanoch Dagan (Tel Aviv) has posted Just and Unjust Enrichments on SSRN.  Here's the abstract:

In exploring the most fundamental question in restitution theory of what separates just from unjust enrichments, this essay undertakes three interconnected missions. The first is to situate the types of cases that prompt liability in restitution within a wider universe of enrichments, including those that trigger taxation as well as those deemed benevolent. My second mission is to defend the view that the concept of property cannot serve as the baseline for distinguishing just from unjust enrichments, and we should instead resort to the normative guidance of the foundational liberal values of autonomy, utility, and community. My third task is to show that this orientation need not generate legal indeterminacy or strip the law of restitution from its constitutive characteristics as one part of our private law. Rather, I argue that my approach to restitution theory can yield a happy doctrine, composed of sharp rules and not vague standards, and responsive to the properly interpreted injunction of correlativity that underlies the legitimacy of private law.

Ben Barros

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Rose on Public Infrastructure and Environmental Resources

Carol M. Rose (Arizona) has posted Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources on SSRN.  Here's the abstract:

Two types of public infrastructure-roads and property rights-are often thought critical to economic development; this article compares their impacts on the natural environment. Both roads and property rights draw unfamiliar persons to remote areas, undermine existing informal resource practices, and enhance wide commercial trade, creating wealth but also reducing local resource diversity. New kinds of property rights hold much promise for environmental protection, but unlike roads and conventional property rights, environmental property rights would be tasked with curtailing commerce, as in roadless areas and caps on resource use. This sharp divergence from the traditional commercial mission of public infrastructure can limit support for environmental property rights, creating an opening for fuzzier and more consultative versions of environmental property.

Ben Barros

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Parent on Takings Constraints

Colin P. Parent (DLA Piper) has posted Takings Constraints: Mechanisms to Minimize the Uncompensated Increment and Limit the Government's Power to Take Property on SSRN.  Here's the abstract:

The breadth of takings scholarship has left useful ideas diluted amongst an ocean of theories. This article addresses that problem by creating a clear and useful taxonomy for takings constraints by which takings theories can be categorized and analyzed. These new categories are (1) compensatory restraints on how much government must compensate property owners, (2) categorical constraints which absolutely limit which property can be taken and for what purposes, and (3) processes constraints which limit how property is condemned.

Furthermore, this article suggests that compensatory restraints are appropriate to minimize economic harms, and categorical constraints are only appropriate to minimize the destruction of property owners' autonomy. This new theory is only possible with the use of the new taxonomy to describe takings constraints.

This paper does not attempt to argue which interests of property should be protected - a topic already developed in the scholarship. However, its new theory provides a framework for policymakers to apply when deciding what takings constraints to use when seeking to advance their substantive values in property, whatever those values may be.

Ben Barros

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Epstein on Kelo

Richard A. Epstein (Chicago) has posted Public Use in a Post-Kelo World on SSRN.  Here's the abstract:

The aftermath of Kelo gives rise to urgent land use issues, both theoretical and historical. On the former, I argue that the analysts should be aware of the close and positive connection between restrictive land use policies on the one hand and a willingness to condemn parcels for private development on the other. The inability to overcome local opposition with private development forces developers to get in essence, pre-acquisition approval through public condemnation. One way, therefore, to ease the pressure on public use is to retreat from aggressive land use regulation to a scheme that more closely approximates that of the common law rules on nuisance and restrictive covenants, which will be hard to achieve since local systems of voting give little weight to the interest of potential buyers who live outside the governance area. Historically, this opportunity was lost when the United States Supreme Court in Berman v. Parker distanced itself from the thoughtful decision of Judge Prettyman below in Schneider v. District of Columbia, which sought to cabin in the ends for which the eminent domain power could be used, even if it gave too much deference to local governments on any means/ends connections.

Epstein graciously refers to my essay on the Berman and Midkiff conference notes, which discussed Judge Prettyman's opinion in Schneider.  In this essay, Epstein develops an interesting substantive defense of Prettyman's position.  Given the author, obviously a must-read for anyone interested in public use issues.

Ben Barros

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Penalver on the Ambiguities of Gentrification

Over at Prawfs, Eduardo Penalver has a great post on gentrification.  Eduardo's post is reacting to a story from the NY Times on gentrification in Harlem.

Ben Barros

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Scarborough on Property Purchase v. Payment in Kind in Taxation of Property Exchanges

Robert H. Scarborough (Freshfields Bruckhaus Deringer) has posted Property Purchase or Payment in Kind? The Oxford Paper Conundrum on SSRN.  Here's the abstract:

If a taxpayer undertakes an obligation or assumes a liability in exchange for property, how is the transaction characterized? Did the taxpayer buy the property, paying with its promise? Or did the taxpayer receive the property as payment for its undertaking or assumption?

To anyone other than a tax lawyer, the question may seem semantic, but the tax consequences of the two ways of seeing the same facts are quite different. Under the first characterization (the Purchase Model), the taxpayer can have no income from receiving the property, since a purchase (even at a bargain) is not a taxable event. The taxpayer‘s costs are treated as purchase price and are generally capitalized as incurred, except to the extent treated as interest on a deferred payment obligation. Under the second characterization (the Fee Model), the taxpayer is deemed to receive a payment equal to the value of the property as consideration for what it has agreed to do, and then takes that as its basis in the property. This deemed payment may or may not produce current income, depending on whether the obligation is treated as debt, or if not, on the rules governing advance payments for the kind of obligation undertaken. The taxpayer then takes its costs into account as costs of performing its obligation, the timing of recognition of which depends on the kind of obligation, rather than as purchase price of property.

Whether to apply the Fee Model or the Purchase Model is a persistent issue, and it has arisen repeatedly since the early days of the income tax. This question was presented squarely by the 1936 transaction considered in the three Oxford Paper decisions, which are discussed in detail in this paper. It was hotly debated by the Justice Department and the Internal Revenue Service in 1970, and was faced again recently by the Treasury Department and the Service in drafting 2006 regulations on application of section 338 to taxable acquisitions of insurance companies.

The Oxford Paper issue is also a pervasive one, arising in a variety of contexts. Commentators have discussed extensively the law‘s general adoption of the Purchase Model in one setting: taxable acquisition of the assets of a business subject to its liabilities, and some have considered in detail arguments for and against adopting the Fee Model in that setting. But the same issue can arise in other settings where, as in Oxford Paper, only one obligation and one asset are involved and the obligation is not related to the asset.

This paper illustrates the choice between the Purchase Model and the Fee Model with a series of examples showing how it can arise in a variety of settings. This paper then surveys the judicial decisions and IRS rulings that have faced this issue, showing that - with a few notable exceptions - they have adopted the Purchase Model. Finally, this paper considers whether there is a "right answer", from a tax policy standpoint, as to which of these two models should apply and concludes that there is not.

Ben Barros

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McLaughlin on Eminent Domain, Open Space, and Electric Transmission Corridors

Nancy A. McLaughlin (Utah) has posted Condemning Open Space: Making Way for National Interest Electric Transmission Corridors (or Not) on SSRN. Here's the abstract:

The Energy Policy Act of 2005 authorizes the Secretary of Energy to "designate any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers as a national interest electric transmission corridor." In 2007, the Secretary formally designated the Southwest Area National Corridor (which includes counties in California and Arizona) and the Mid-Atlantic Area National Corridor (which includes counties in Ohio, West Virginia, Pennsylvania, New York, Maryland, and Virginia, as well as all of New Jersey, Delaware, and the District of Columbia). Once the Secretary designates a National Corridor, the Federal Energy Regulatory Commission can issue permits to public utilities authorizing them to exercise the power of eminent domain to acquire rights-of-way to construct electric transmission facilities in the corridor. Questions have been raised in Virginia regarding the extent to which public utilities can exercise this power of eminent domain to condemn land encumbered by conservation easements. Some worry that land encumbered by conservation easements, which by definition is largely undeveloped, will be a natural target for condemnation because of the political difficulties associated with locating steel towers supporting high voltage transmission lines in populated areas. Others believe that encumbering land with a conservation easement can insulate the land from condemnation. This article discusses the extent to which public utilities may or may not have the right under either federal or Virginia law to condemn conservation easements.

Ben Barros

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Demsetz on Frischmann and Toward a Theory of Property Rights

The newest issue of the Review of Law and Economics includes an essay by Harold Demsetz (UCLA) titled Frischmann’s View of “Toward a Theory of Property Rights”.  Here's the abstract:

In this brief article, Professor Harold Demsetz defends his seminal paper "Toward a Theory of Property Rights" against the most recent critique to his theory made by Brett Frischmann in “Evaluating the Demsetzian Trend in Copyright Law” (Review of Law and Economics, 2007).

Ben Barros

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Ostrow on Judicial Review and RLUIPA

Ashira Ostrow (Hofstra) has posted Judicial Review of Local Land Use Decisions: Lessons from RLUIPA on SSRN.  Here's the abstract:

This Article questions whether traditional judicial deference to local land use regulators is justified in light of the highly discretionary, and often corrupt, system of modern land use regulation. In 2000, Congress determined that unlike other forms of economic legislation, land use regulation lacks objective, generally applicable standards, leaving zoning officials with unlimited discretion in granting or denying land use applications. Congress further concluded that this unlimited discretion lends itself to religious discrimination. Congress therefore enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires courts to strictly scrutinize land use decisions that impact religious land users.

Since its passage, the constitutionality of RLUIPA has been extensively debated. Many scholars maintain that RLUIPA is an overly broad exemption that creates a privileged class of land users and allows religious institutions to avoid a community's reasonable land use concerns. In contrast, this Article argues that Congress, through RLUIPA, identified a global flaw in land use regulation which impacts all land users, but limited its remedy to religious land users. While RLUIPA's strict scrutiny review is clearly inappropriate for land use cases that involve neither fundamental rights nor suspect classes, traditional judicial deference is equally inappropriate in light of the discretionary nature of modern zoning. Fortunately, the Supreme Court established the appropriate standard of review in its earliest zoning cases. Thus, this Article maintains that RLUIPA is significant because it highlights a global flaw in local land use and because its bifurcated approach to judicial review of zoning decisions revives an early facial/as-applied dichotomy in land use jurisprudence and encourages more meaningful judicial review of all as-applied land use decisions.

Ben Barros

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Penalver on Land Virtues

Eduardo M. Penalver (Cornell) has posted Land Virtues on SSRN. Here's the abstract:

This article has two goals. First, I explore some of the descriptive and normative shortcomings of traditional law and economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other commodities. The complexity of land - its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it - undermines the notion that owners will focus on a single value, such as wealth, in making decisions about their land. Adding to the equation land's memory, by which I mean the combined impact of the durability of land uses and the finite quantity of land, calls into question the normative assessment that owners whose behavior is guided by a unitary measure like market value are using their land wisely, or at least more wisely than other modes of decision-making might hope to accomplish. The shortcomings of traditional law and economics theories of land use point toward the benefits of a pluralist theory of property based on the Aristotelian tradition of virtue ethics. Setting forth the broad outlines of such a theory as it applies to the law of land use is the second goal of this article. Virtue theory, I will argue, is capable of incorporating the valuable insights that have made economic analysis so appealing to land use theorists without distorting our moral vision or treating economic consequences as the only considerations that ought to matter.

Ben Barros

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McLaughlin on Condeming Conservation Easements

Nancy A. McLaughlin (Utah) has posted Condemning Conservation Easements: Protecting the Public Interest and Investment in Conservation on SSRN. Here's the abstract:

The public is investing substantial financial and other resources in conservation easements and the conservation and historic values they protect. Yet little has been written about who should be entitled to what when land encumbered by a conservation easement is condemned in whole or in part. This Article explores these issues. It first demonstrates that conservation easements should constitute a compensable form of property for purposes of the Takings Clause of the Fifth Amendment. Then, using well-settled eminent domain valuation principles, it describes how just compensation should be calculated and apportioned between the holder of a conservation easement and the owner of the encumbered land upon the taking of all or any portion of the encumbered land. The Article explains that paying the economic value attributable to a conservation easement upon its condemnation to the owner of the encumbered land would confer an undue windfall benefit on the owner at the public's expense. The Article also explains that allowing condemning authorities to take easement-encumbered land without paying for the easement would have the perverse and counterproductive effect of making land protected for its conservation or historic values cheaper to condemn than similar unprotected land.

Ben Barros

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Carillo on ARMs

Jo J. Carrillo (Hastings) has posted Dangerous Loans: Consumer Challenges to Adjustable Rate Mortgages on SSRN. Here's the abstract:

This article analyzes the relationship between innovative mortgage
products, like adjustable-rate mortgages, and the first wave of consumer legal
challenges brought against those products under the Truth in Lending Act
(TILA), 15 U.S.C. section 1601, et seq. (TILA).

Ben Barros

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Davies on Assured Supply Laws

Lincoln Davies (Utah) has posted Just a Big, 'Hot Fuss'? Assessing the Value of Connecting Suburban Sprawl, Land Use, and Water Rights Through Assured Supply Laws on SSRN.  Here's the abstract:

States and localities increasingly recognize the need to link land use and water supply planning. As the populace grows and sprawl continues, the strain on available natural resources, particularly water, makes this recognition all the more important. This Article addresses an increasingly common type of this planning link "assured supply" laws that require developers to prove they have secured adequate water stock before commencing construction. The Article performs a qualitative analysis of the potential benefits and costs of such laws and finds that, on balance, assured supply laws provide at least five significant benefits: consumer protection, greater holistic project- and agency-level planning, improved efficiencies in water rights allocation, and increased water conservation. Notably, however, these laws appear to do very little to diminish sprawl and, if designed incorrectly, may actually exacerbate it. The Article then extracts five dimensions around which localities might design their assured supply laws to maximize their benefits and minimize possible costs, concluding that such laws are most likely to deliver optimal benefits when they are (1) mandatory, (2) stringent, (3) statewide, (4) broadly applicable, applying to more than only large projects, and (5) interconnected with broader land-water and environmental lanning mechanisms.

Ben Barros

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Heller and Hills on Land Assembly Districts

Dan Kelly's response (see post below) reminded me that the Harvard Law Review has posted Land Assembly Districts, by Michael Heller (Columbia) and Rick Hills (NYU), online.  Here's the abstract:

Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or “LADs.” This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and moral intuition underlying LADs is simple: when the only justification for assembly is over-fragmentation of land, neighbors should be able to decide collectively whether their land will be assembled. Our legal theory solution is equally simple: use property law to retrofit communities with a condominium-like structure tailored to land assembly. Let’s try giving those burdened by condemnation a way to share in its benefits and to veto projects they decide are not worth their while.

Ben Barros

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Two by Kelly

Daniel B. Kelly (Olin Fellow, Yale) has posted two pieces on eminent domain on SSRN.  They are:

The Limitations of Majoritarian Land Assembly 

In their article, Land Assembly Districts, Professors Michael Heller and Rick Hills address the collective action problem arising from excessively fragmented land. They propose an innovative solution: Land Assembly Districts (or LADs). In this Article, I raise several concerns regarding LADs in particular and majoritarian land assembly in general. LADs rely on majority voting by a neighborhood's existing owners. Yet majority voting, coupled with the possibility of heterogeneity, means that LADs may both approve socially undesirable assemblies and disapprove socially desirable ones. LADs also permit owners to bargain over a project's surplus. But such bargaining creates additional costs for developers, as well as a potential bilateral monopoly problem, both of which may result in fewer desirable assemblies. There is thus no reason to believe a priori that LADs are superior to either eminent domain or private assembly. Finally, because LADs require courts to delineate the circumstances in which eminent domain would continue to be permitted, LADs may not even offer an administrability advantage. Indeed, LADs ultimately may rely on judicial expertise to an extent the authors themselves believe is problematic. Still, LADs constitute a creative proposal worthy of consideration.

Pretextual Takings

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a particular private party is to allege that the taking is "pretextual." This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motivations, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between the government and private parties. When the state lacks information regarding the optimal site for an assembly, the state may need to rely on a private party to identify, as well as develop, a particular site. However, when the state itself possesses information regarding the site, precondemnation private involvement, as well as post-condemnation involvement by a preferred private party, is generally unnecessary. Such involvement increases the likelihood of a pretextual transfer without any corresponding public benefit. The Article concludes that, based on these differences, a burden-shifting framework, analogous to Title VII's test for identifying pretext, can be adopted in the takings context. The new framework is then applied to several situations in which allegations of pretext are likely to arise.

Ben Barros

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Sprankling on Owning the Center of the Earth

The UCLA Law Review has posted John G. Sprankling's Owning the Center of the Earth online.  Here's the abstract:

How far below the earth’s surface do property rights extend? The conventional wisdom is that a landowner holds title to everything between the surface and the center of the earth. This Article is the first legal scholarship to challenge the traditional view. It demonstrates that the “center of the earth” theory is poetic hyperbole, not binding law. Broadly speaking, the deeper the disputed region, the less likely courts are to recognize the surface owner’s title. The emergence of new technologies for use of the deep subsurface—such as heat mining and carbon sequestration, both of which may help mitigate global climate change—requires that we develop a new model of subsurface ownership. Accordingly, this Article proposes and evaluates four alternative approaches to subsurface property rights. The preferred model would recognize the surface owner’s title for only 1000 feet downward. If adopted, this approach would eliminate over 99 percent of the supposed real property ownership in the United States.

Very cool!

Ben Barros

Public domain image from NASA via Wikicommons

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Semeraro on Sweet Land of Property

Steven Semeraro (Thomas Jefferson) has posted Sweet Land of Property?: The History, Symbols, Rhetoric, and Theory Behind the Ordering of the Rights to Liberty and Property in the Constitutional Lexicon on SSRN.  Here's the abstract:

This article critiques the property rights movement‘s position that courts should scrutinize property regulation to the same extent that they now scrutinize fundamental liberty-based claims. At its root, the debate over the proper degree of scrutiny for property rights claims is a debate about the appropriate scope of a society‘s freedom to organize and reshape itself in search of a greater good. Strict scrutiny of regulation truncates the debate, demanding that we privilege what has been to guard against the hazards of the unknown. Greater judicial deference, by contrast, frees us to seek, through governmental actors pursuing the public interest, a better, more fulfilling society at the risk that we will fail.

Reviewing an array of arguments based on (1) intellectual and social history, (2) the rhetoric of modern jurisprudence, and (3) property law theory, this article shows that the movement‘s adherents have failed to make their case for strict scrutiny of property regulation. This article‘s critical assessment of the property rights movement cannot establish that judicial deference to legislative judgment in property rights cases is necessarily morally superior to more probing scrutiny. That the property rights movement has made virtually no progress more than two decades after it began, however, casts some measure of doubt on the possibility that it ever will.

Ben Barros

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Property and Progress: Antebellum Landscape Art and Property Law

(Doing some cross-posting from thefacultylounge.org this morning....)
My time in Tuscaloosa is rapidly drawing to a close.  Yesterday I had the pleasure of attending graduation and on Thursday I'm going to give a lecture on the relationship between landscape art and property law in the years leading into Civil War at one of my favorite--and one of our country's finest--art museums, the Westervelt Warner Museum.  (The Westervelt Warner owns one of Hiram Powers' statute's The Greek Slave, which is under discussion over at Althouse's shop. The statue served for antebellum Americans as a reminder that Greek Christians could be put into slavery and that we should treat others as we would want to be treated.  In essence, it tried to put Americans into a mindset that would cause them to oppose slavery.  That trope has a distinguished lineage in antislavery advocacy.)

The talk centers around my favorite work of American art, Asher B. Durand's Progress (1853), which just so happens to be owned by the museum.  This will be a huge treat for me, to have the chance to talk about that most magical of paintings at its home.  And, in fact, this talk is part of welcoming it home from travels to the Brooklyn Museum of Art and then out to San Diego for a major exhibit on Durand.  (Alice Walton's  Kindred Spirits , which is the centerpiece of her art museum Crystal Bridges was also a centerpiece of the show.)

I try to join two themes here--first, the centrality of property and particularly humans' footprints on the land, in antebellum landscape art; second, the ways that antebellum property law reflected and amplified those values.  I don't think either of those themes is controversial; however, I have not seen them put together.  The correlation between them is not perfect--a substantial part of landscape art reveals concern over increasing human intrusions on nature.  Just not Durand's Progress.  It’s a great canvass for seeing all sorts of images of what "progress" meant-–the shift from the native Americans over on the left (the state of nature), then moving across the canvass to the right, the telegraph wires, the steam boats, the canal, the peddler, the boy bringing the cattle to market, the church, the railroad roundhouse....

I've written about pieces of this talk in a bunch of places--years ago back at co-op, then here at propertyprof (focusing on Hawaiian landscape art) and ratio juris, and earlier this year at legalhistoryblog.  So major chunks of this have already been "workshopped" on blogs already.  I'll be posting a paper about this by the end of the summer.  In the meantime...

What's the evidence from the art side look like?  One of the highlights is Thomas Cole's Notch in the White Mountains (at left).  Though because this is at the Warner Museum, I'm going to use some of their fabulous collection, including Thomas Cole's Catskill Mountain House.  And, as I say, some of the artists are rather apprehensive about the market.  Thomas Cole, for one, is bothered by the imposition of railroads on the landscape, the interference of them with the quiet of the River in the Catskills.  And what he and a lot of other people celebrate--including Frederick Church's Above the Clouds at Sunrise   (another painting in the Westervelt Warner collection) is nature freed from humans.  It's just wild nature and God.

The romantics of the antebellum era worried that someone tried to own the landscape.  So when Natural Bridge was offered for sale, John Thompson protested it in the pages of the Southern Literary Messenger.  Jefferson thought that the  Natural Bridge, which he had once owned, should be treated as a public trust.   I'm going to use one of the Westervelt's paintings of the Natural Bridge, but I have at right Frederick Church's image, which is owned by the University of Virginia.

Yet, at the same time, people begin to understand and celebrate the role of human institutions (like law) in bringing order to nature.  So we have paintings--and certainly a lot of culture--that celebrates law, that draws a distinction between civilization and wild nature.  We see this in judicial opinions like Johnson v. M'Intosh. 

Landscape painters also captured farms and parcels of land, such as Thomas Cole's Ox Bow in the Connecticut River (right).  It shows the landscape around Mount Holyoke.  Look from left to right and see the increasing civilization.  On the left is wild nature, twisted trees; over towards the right are fields, orchards, roads.  That was completed in 1836, the same year that Emerson completed Nature.  You may recall that Emerson said of  landscape that:

The charming landscape which I saw this morning, is indubitably made up of some twenty or thirty farms. Miller owns this field, Locke that, and Manning the woodland beyond. But none of them owns the landscape. There is a property in the horizon which no man has but he whose eye can integrate all the parts, that is, the poet. This is the best part of these men's farms, yet to this their warranty-deeds give no title.

The slides I use are largely of landscape paintings that show not just nature, but property being used.  The theme here is the way that Americans love property–-and how we celebrate the way that we impose our stamp on nature.  But many pictures depict the celebration of humans on the landscape.  I'm also going to use some of the museum's other art like a Jonathan Fisher image of Maine landscape.  (The one at right, A Morning View of the Bill Hill Village, is similar to the one owned by the Westervelt; it's from the Farnsworth Museum in Rockland Maine, which has a fabulous collection of Fisher paintings).   What extraordinary images of property--fences, houses, fields, humans and their animals.   

The idea here is to show the ways that humans put their stamp on nature--and how artists celebrated that stamp.  So the usual standbys like George Inness' Lackawanna Valley (below).  Look at the machine going through the the fields of cut-stumps; the railroad roundhouse in the background; the smoke stack even further off; what a strange juxaposition (it seems at first) of humans and nature. While it seems strange at first, my point is that landscape art is part of the celebration of human's use of land.   The boy sitting in the foreground reminds one of Thoreau who talks in Walden of setting his watch to the railroad whistle.  Where the image of Walden is of a secluded place, that solitude was often disturbed by the train whistle and then the sounds of the engine:

The whistle of the locomotive penetrates my woods summer and winter, sounding like the scream of a hawk sailing over some farmer's yard, informing me that many restless city merchants are arriving within the circle of the town, or adventurous country traders from the other side.  As they come under one horizon, they shout their warning to get off the track to the other, heard sometimes through the circles of two towns.  Here come your groceries, country; your rations, countrymen!  Nor is there any man so independent on his farm that he can say them nay.  And here's your pay for them! screams the countryman's whistle; timber like long battering-rams going twenty miles an hour against the city's walls, and chairs enough to seat all the weary and heavy-laden that dwell within them.  With such huge and lumbering civility the country hands a chair to the city.  All the Indian huckleberry hills are stripped, all the cranberry meadows are raked into the city. Up comes  the cotton, down goes the woven cloth; up comes the silk, down goes the woollen; up come the books, but down goes the wit that writes them.

When I meet the engine with its train of cars moving off with planetary motion -- or, rather, like a comet, for the beholder knows not if with that velocity and with that direction it will ever revisit this system, since its orbit does not look like a returning curve -- with its steam cloud like a banner streaming behind in golden and silver wreaths, like many a downy cloud which I have seen, high in the heavens, unfolding its masses to the light -- as if this traveling demigod, this cloud-compeller, would ere long take the sunset sky for the livery of his train; when I hear the iron horse make the hills echo with his snort like thunder, shaking the earth with his feet, and breathing fire and smoke from his nostrils (what kind of winged horse or fiery dragon they will put into the new Mythology I don't know), it seems as if the earth had got a race now worthy to inhabit it.  If all were as it seems, and men made the elements their servants for noble ends!  If the cloud that hangs over the engine were the perspiration of heroic deeds, or as beneficent as that which floats over the farmer's fields, then the elements and Nature herself would cheerfully accompany men on their errands and be their escort.

I watch the passage of the morning cars with the same feeling that I do the rising of the sun, which is hardly more regular. Their train of clouds stretching far behind and rising higher and higher, going to heaven while the cars are going to Boston, conceals the sun for a minute and casts my distant field into the shade, a celestial train beside which the petty train of cars which hugs the earth is but the barb of the spear.  The stabler of the iron horse was up early this winter morning by the light of the stars amid the mountains, to fodder and harness his steed.  Fire, too, was awakened thus early to put the vital heat in him and get him off.  If the enterprise were as innocent as it is early!  If the snow lies deep, they strap on his snowshoes, and, with the giant plow, plow a furrow from the mountains to the seaboard, in which the cars, like a following drill-barrow, sprinkle all the restless men and floating merchandise in the country for seed.  All day the fire-steed flies over the country, stopping only that his master may rest, and I am awakened by his tramp and defiant snort at midnight, when in some remote glen in the woods he fronts the elements incased in ice and snow; and he will reach his stall only with the morning star, to start once more on his travels without rest or slumber.  Or perchance, at evening, I hear him in his stable blowing off the superfluous energy of the day, that he may calm his nerves and cool his liver and brain for a few hours of iron slumber.  If the enterprise were as heroic and commanding as it is protracted and unwearied!

There’re some neat connections here between property law’s reverence for private property (and its preference for use of land) and the kind of art that Americans produced. It's fun cultural history, I think. And every now and then there are some unexpected connections between judges and landscape art. For instance, in a lecture in 1844 at Dartmouth, United States Supreme Court Justice Levi Woodbury referred to Thomas Cole’s Course of Empire to illustrate how nations evolved–“starting first in the rudeness of nature; then maturing to high refinement and grandeur-till, amid the ravages of luxury, time and war, sinking into utter desolation.” The series of five paintings depict the same landscape (look for the mountain in the background), as the country goes from a state of nature, to civilization, consummation, destruction, and then desolation. Sort of sobering, but in keeping with many nineteenth-century Americans’ belief in the cycle of nations.

Others, including Justice Woodbury, saw an unbroken chain of upward progress, often facilitated by the increasing respect for private property.  And so there's an odd contrast between Cole, who was ambivalent about humans' imposition on nature and Woodbury and a lot of other jurists, who were enamored of the market.  And you know what Woodbury's talk is called?  How could it be anything other than "Progress"?!

Yup, colleges in the antebellum era were deeply interested in progress--technological, economic, and moral (though what that meant was unclear).  And so it should not surprise anyone that Jasper Cropsey painted the University of Michigan in 1855 (right).  It has everything--the school buildings and church (at right), the fields, the roads, a horse drawn wagon, domesticated  animals.  The college in the garden, to paraphrase Leo Marx' brilliant book The Machine in the Garden.  And another important source for this talk is Angela Miller's fantastic book The Empire of the Eye.

The talk is particularly meaningful for me, too, because it's the last lecture I'm giving in Tuscaloosa.  So if you're around Tuscaloosa on Thursday at 5:30, stop by the Warner Museum.  It promises to be a ton of fun!

Alfred Brophy

Gardner on International Application of Regulatory Takings

Royal C. Gardner (Stetson) has posted Taking the Principle of Just Compensation Abroad: Private Property Rights, National Sovereignty, and the Cost of Environmental Protection on SSRN. Here's the abstract:

Part I of this article provides a brief background of the United States takings jurisprudence. It examines how the Fifth Amendment protects private property rights and when environmental regulation implicates the payment of just compensation. Part II reviews the methods by which the United States government seeks to protect the environment without infringing on private property rights, focusing on financial incentives and disincentives. Part III compares the many parallels between private property rights and national sovereignty. Part IV explores how lessons derived from the United States experience in balancing private property rights and environmental concerns are relevant to international environmental issues. It focuses on how the United States seeks to influence the environmental policy of other states through financial incentives and disincentives in multilateral and bilateral contexts. Concluding that such conditional assistance is consistent with the domestic principle of just compensation, the article offers a framework for when such assistance is justified.

Ben Barros

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Antiquities under Siege: Cultural Heritage Protection after the Iraq War

The University of Chicago's Cultural Policy Center has just released Antiquities under Siege: Cultural Heritage Protection after the Iraq War.  Its website describes the book:

As Saddam Hussein's government fell in April 2003, news accounts detailed the pillaging of from the Iraq Museum. The looting of nearly 15,000 items from the Museum's collection grabbed headlines and briefly focused international attention on Iraq's threatened cultural heritage and the efforts to recover missing items. Less dramatic, though far more devastating, has been the subsequent epidemic of looting at thousands of archaeological sites around the country. Illegal digging on a massive scale continues to this day. If unaddressed, the same fundamental deficiencies that left Iraq's museums and sites vulnerable to looters will threaten the cultural heritage of other politically unstable regions.

Antiquities under Siege examines the criminal activity that continues to erode the traces of Mesopotamian, Judeo-Christian and Islamic cultures buried in the desert of Iraq, and investigates the global implications of this ongoing catastrophe. This book demonstrates that the disasters that have befallen Iraq's cultural heritage in the wake of the US-led invasion are both the result of the general failures of postwar planning and specific shortcomings in U.S. and international cultural policies protecting cultural heritage sites and artifacts.

Looks like a fantastic book!

Alfred Brophy.

Frishmann on Environmental Infrastructure

Brett M. Frischmann (Loyola Chicago) has posted Environmental Infrastructure on SSRN.  Here's the abstract:

This essay explores how my recent work on infrastructure and commons applies to environmental resources. Part I briefly describes the core idea, which is developed extensively elsewhere. Part II suggests how it might apply to the natural environment. Specifically, Part II (a) frames the difficult environmental valuation and management problems; (b) applies the infrastructure criteria and delineates environmental infrastructure; (c) offers a few insights regarding environmental management and regulation; and (d) considers how infrastructure theory relates to the literatures on ecosystem services and multiple use management.

The essay is based on a presentation at a panel on infrastructure commons at the 2007 Law & Society Annual Conference in Berlin, Germany. It will be published in the Ecology Law Quarterly along with three essays on infrastructure commons written by David Driesen, Gregory Mandel, and Marc Poirier.

I saw this paper presented at Law & Society.  Very interesting!

Ben Barros

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McCall on North Carolina Eminent Domain

Jamie R. McCall (UNC-Chapel Hill School of Gov't) has posted The Use of Eminent Domain by North Carolina Counties: Historical Patterns, Current Trends, and Decision Variables on SSRN.  Here's the abstract:

A 2006 report by the Government Accountability Office states that little data or research exists on the use of eminent domain by state or local governments. In an effort to help fill this knowledge gap, this capstone examines how eminent domain is used and what variables are important in the execution of eminent domain action by North Carolina county governments. This analysis uses data from a survey of county managers about eminent domain policies and practices. The data show a wide variation of how counties utilize eminent domain, but also suggest that the bulk of eminent domain action is for public infrastructure and public facilities. A wide variety of factors influence county government decisions to condemn property, and the presence of certain structures like religious institutions discourage counties from using eminent domain. Additionally, some counties also engage in alternative strategies before deciding to use their eminent domain authority.

Ben Barros

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Power on Constitutional Property

Garrett Power (Univ. of Maryland) has posted Constitutional Property' a Chronicle of the Construction of a Concept on SSRN.  Here's the abstract:

In the American constitutional system the sovereign has the power to enact "regulations which are necessary to the common good and general welfare." But the Fifth Amendment to the United States Constitution proscribes that: "No person shall be. . .deprived of. . .property, without due process of law; nor shall private property be taken for public use, without just compensation." And the question of whether a sovereign regulation has "taken" private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles the leading cases and finds that the Court's present interpretation of "regulatory takings" sits upon a shaky foundation of split decisions; the Court's construction of the "constitutional property" remains a work in progress.

It finds today's Supreme Court is fundamentally split into two blocs. This "Great Divide" is sometimes attributed to a difference in judicial philosophy. Those in the Court's conservative wing are typically described as practitioners of "judicial restraint." Those in the Court's liberal wing are said to be "judicial activists" who are intent on reconstructing the Constitution's language to meet the exigencies of the times.

The Court's "constitutional property" jurisprudence belies this stereotype. Its right wing is seeking to define the Takings Clause, beyond its original meaning, so as to discourage government activity. Conversely the left wing is more than willing to give wide discretion to legislative bodies to impose regulations without paying compensation to disappointed property owners.

Ben Barros

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Katz on Exclusion and Exclusivity

Larissa M. Katz (Queen's University) has posted Exclusion and Exclusivity in Property Law on SSRN.  Here's the abstract:

In this article, I propose a model for understanding the concept of ownership that I call the exclusivity model. Like many of the contemporary critics of the bundle of rights approach to Ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of these contemporary critics, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the boundary approach to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for them to explain adequately the many subsidiary rights in things that co-exist with the rights of owners. Indeed, when we look more closely at the structure of ownership in property law, I argue that its central concern is not the exclusion of all non-owners from the owned thing, but rather the preservation of the owner's position as the exclusive agenda-setter for the owned thing. So long as others - whether they be subsidiary property right- holders or strangers to the property - act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda-setter.

Ben Barros

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Barr, Mullainathan, and Shafir on Behaviorally Informed Home Mortgage Regulation

Michael S. Barr (U. Michigan), Sendhil Mullainathan (Harvard), and Eldar Shafir (Princeton) have posted Behaviorally Informed Home Mortgage Regulation on SSRN.  Here's the abstract:

Choosing a mortgage is one of the biggest financial decisions an American consumer will make. Yet it can be a complicated one, especially in today‘s environment where mortgages vary in dimensions and unique features. This complexity has raised regulatory issues. Should some features be regulated? Should product disclosure be regulated? And most basic of all, is there a rationale for regulation or will the market solve the problem? Current regulation of home mortgages is largely stuck in two competing models of regulation - disclosure and usury or product restrictions - neither of which take adequate account of behavioral psychology or market incentives. This paper seeks to use insights from both psychology and economics to provide a framework for understanding both these models as well as to suggest fundamentally new models. We understand outcomes as an equilibrium interaction between individuals with specific psychologies and firms that respond to those psychologies within specific markets. Regulation must then account for failures in this equilibrium.

Ben Barros

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Oliveri on Landlord-Tenant Issues and Anti-Illegal Immigrant Ordinances

Rigel Christine Oliveri (U. Missouri) has posted Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination on SSRN.  Here's the abstract:

In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.

This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants. Faced with penalties for renting to unauthorized immigrants, landlords have the clear incentive to screen their tenants' immigration status. However, given the difficulty of ascertaining legal status (and the absence of any reliable mechanism for doing so), landlords are instead likely to resort to short-cuts, such as refusing to rent to "foreign-seeming" people and discriminating based on accent, surname, appearance, or other ethnic markers. As a result, these restrictions are likely to (1) cause landlords to violate the federal Fair Housing Act, which prohibits discrimination on the basis of national origin, and (2) lead to discrimination against all ethnic minority groups whose members look or sound "foreign," regardless of their immigration or citizenship status. In addition to the violations of federal fair housing law that are likely to occur, there are significant public policy arguments against immigration-related housing restrictions.

Federal intervention is therefore necessary. Congress must act to prevent municipalities from enacting and enforcing such restrictions. Moreover, Congress must itself resist pressure to enact immigration-related housing restrictions as a matter of national policy. But this is not enough. Historic and current levels of housing discrimination against national origin minorities and immigrants indicate that these groups are already in need of greater protection, yet the law contains significant gaps in coverage. Both alienage and legal status remain permissible bases for discrimination under the Fair Housing Act. As long as this is the case, discrimination against national origin minorities who are citizens and legally present non-citizens is encouraged to continue. Thus, the Fair Housing Act should be amended to contain explicit protection for both alienage and legal status.

Ben Barros

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Garnett on Taking Without Touching

Nicole Stelle Garnett (Notre Dame) has posted 'No Taking Without a Touching?' Questions from an Armchair Originalist on SSRN.  Here's the abstract:

This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided well into the nineteenth century to elucidate the meaning of a late-eighteenth-century legal provision. Finally, the paper asks whether the state decisions frequently cited for the "no taking without a touching" principle might have been answering different questions than the modern "regulatory takings" problem.

Ben Barros

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Villazor on Blood Quantum Laws

Rose Cuison Villazor (SMU) has posted Blood Quantum Land Laws and the Race Versus Political Dilemma on SSRN.  Here's the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose - to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws, what I collectively refer to as blood quantum land laws, as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law's interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.

Ben Barros

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Eagle on Kelo, Directed Growth, and Municipal Industrial Policy

Steven J. Eagle (George Mason) has posted Kelo, Directed Growth, and Municipal Industrial Policy on SSRN.  Here's the abstract:

This article explores trends towards increased local government land use regulation to spur economic development and towards partnering with private redevelopers. It notes that while Kelo v. City of New London has intensified these trends, the use of condemnation for retransfer for private redevelopment endorsed by Kelo is only one tool by which local government advances what the author terms municipal industrial policy. While Kelo expresses confidence in the ability of courts to distinguish between permissible economic development takings primarily for public benefit and impermissible takings primarily for private benefit, the author maintains that any such distinction is illusory.

The article also explores how public choice considerations augur in favor of unnecessary and inefficient condemnations. Finally, it suggests some alternatives that would better effectuate urban redevelopment while avoiding unfair and inefficient exercises of eminent domain. There include greater recognition of fractional property interests, and facilitating owner participation in post-condemnation redevelopment. Other salutary alternatives are localizing neighborhood redevelopment control, and making blight redevelopment open and transparent by replacing condemnation with abatement and foreclosure.

Ben Barros

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