PropertyProf Blog

Kelo Update

Tom Blumer at BizzyBlog has an update on recent developments in New London, including election results that put two candidates from the upstart New London Party on the City Council.  Hat tip:  Todd Zywicki.

Ben Barros

Georgia v. Randolph

On the general subject of Home as Castle, the Supreme Court recently heard argument in Georgia v. Randolph.  Wife and husband were involved in a domestic dispute; wife gave police consent to search the house for drugs; husband then comes home and tells the police to stop the search; police continue to search anyway, and find straw with cocaine on it.  I'm far from a Fourth Amendment expert, but it seems to me that the key fact is that the husband revoked consent to search; each person in a shared home may be presumed to be able to consent to a search of the house, but it seems to me that this presumption should be overridden when another resident of the home explicitly revokes the consent.  If you are interested in the issue, you should check out the debate going on over at the Volokh Conspiracy between Orin Kerr and Tom Goldstein about the case; Goldstein argued for Randolph in the Supreme Court.  Also, Dahlia Lithwick has a characteristically entertaining recap of the oral argument over at Slate.

Ben Barros

More on Rybczynski on Bruegmann on Sprawl

If you are interested in the issue of sprawl, check out the comments to my earlier post on Rybczynski on Bruegmann on Sprawl.

Ben Barros

Des Moines Restricts Sex Offender Residency

NPR has a story on Des Moines regulations that make almost the entire city off-limits to sex offenders.  Neighboring municipalities are starting to pass similar laws, leaving some people with no place to live.  Like private covenants against sex offenders, these regulations seem to be spreading rapidly throughout the country. 

Ben Barros

The Evolution of Home as Castle

The common-law cliche that a man's home is his castle has become a dominant part of the rhetoric of American property law.  In its most common incarnation, the castle doctrine is used to convey the image of the home as a sanctuary from government interference.  Interestingly enough, though, the castle doctrine had a radically different meaning when it was first introduced.  I discuss this evolution and its legal significance at greater length in my article Home as a Legal Concept, but this post gives a summary of the high points.

The castle doctrine dates back to at least 1505, when it originated in cases involving the right to defend the home against invasion by other private individuals.  In Seymayne's Case, decided in 1604, the court held that:

[T]he house of every one is to him as his castle and fortress, as well as for his defence against injury and violence, as for his repose; and although the life of a man is a thing precious and favored in law; . . . if thieves come to a man's house to rob him, or murder, and the owner or his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing.

The court immediately went on to state, however, that "[i]n all cases where the King is party, the sheriff (if the doors be not open) may break the house, either to arrest or do other execution of the King's process."

Gradually, however, the castle doctrine started to be used as a rhetorical tool by those resisting government invasions of the home.  Perhaps the most influential example of this usage was James Otis's argument in the 1761 Writs of Assistance Case, where he argued that the writ at issue was "against the fundamental Principles of Law" because "[a] Man, who is quiet, is as secure in his House, as a Prince in his Castle, not with standing all his Debts, and civil Process of any kind."  As Leonard Levy noted, "Any fastidious legal historian must acknowledge that Otis's argument compounded mistakes and misinterpretations. . . . That Otis distorted history is pedantic; he was making history."

Two years after Otis argued in the Writs of Assistance Case, William Pitt made a powerful statement of the castle doctrine in a speech to Parliament:

The poorest man may in his cottage bid defiance to all the forces of the crown.  It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter -- all his force dares not cross the threshold of the ruined tenement!

This type of rhetorical use of the castle doctrine caused the doctrine to change meaning.  As William Cuddihy put it, "A man's house is his castle (except against the government)" yielded to "A man's house is his castle (especially against the government."  In its new form, the castle doctrine featured prominently in Revolutionary-War-era complaints about abuses of government power, and was an important intellectual foundation of the Fourth Amendment.

Ben Barros

Rybczynski on Bruegmann on Sprawl

Over at Slate, Witold Rybczynski has a post on Robert Bruegmann's new book Sprawl: A Compact History.  Here's a taste:

What this iconoclastic little book demonstrates is that sprawl is not the anomalous result of American zoning laws, or mortgage interest tax deduction, or cheap gas, or subsidized highway construction, or cultural antipathy toward cities. Nor is it an aberration. Bruegmann shows that asking whether sprawl is "good" or "bad" is the wrong question. Sprawl is and always has been inherent to urbanization. It is driven less by the regulations of legislators, the actions of developers, and the theories of city planners, than by the decisions of millions of individuals—Adam Smith's "invisible hand."

Ben Barros

Using Superprecedent to Save the Commerce Clause

Warning:  this post contains very little property-related content, though it does touch on the FHA.

The idea of superprecedent has generated a lot of commentary recently, and is likely to be a major topic in the Alito confirmation hearings.  The basic idea seems to be that the Supreme Court should be even more reticent than usual about overturning a precedent if that precedent has been repeatedly affirmed and has become a settled part of the public understanding of a particular Constitutional issue.  Although the issue is often discussed in the abstract, the focus of the debate has been on whether Roe v. Wade has achieved superprecedent status.

I have to say at the outset that I have some doubts about the entire idea of superprecedent -- the Justices take their oath to uphold the Constitution, and if they truly believe that a precedent is contrary to the Constitution, then they should vote to overturn that precedent, super or not.  But I want to suggest a possible strategic use of the concept of superprecedent by those who (like me) believe that the Constitution actually means what it says when it created a federal system in which the federal government has limited and enumerated powers.

The modern Supreme Court has interpreted the power of the federal government to regulate interstate commerce so broadly that it has essentially written the Commerce Clause, and with it the idea of limited federal power, out of the Constitution.  The idea of interstate commerce at the margins can be fuzzy, but at its core it really isn't a hard idea to understand.  It also isn't hard for ordinary people to figure out whether a particular law passed by Congress constitutes a regulation of interstate commerce.  Every year, I go over the text of the Fair Housing Act with my Property students and ask them whether Congress was regulating interstate commerce when it passed the FHA.  Usually about 15% of the students raise their hands.  I then ask those students if they had an undergraduate course in Constitutional Law; invariably they all did.  To the other students, who have not yet had their minds polluted with the Court's Commerce Clause jurisprudence, the nature of the FHA is abundantly clear:  it is a law prohibiting discrimination in local housing markets, not a regulation of interstate commerce.

The unfortunate result of reading the Commerce Clause to mean what it says is the conclusion that the FHA is unconstitutional.  And so, of course, would be every other Civil Rights law passed by Congress that has had its constitutionality grounded by the Supreme Court in cases relying on the Commerce Clause.  (Some Civil Rights laws have their constitutionality grounded in the Civil War Amendments, and so do not rely on the Commerce Clause for their constitutionality).  These laws, quite plainly, were Civil Rights Laws, not regulations of interstate commerce.  (I should note that this view is not based on a "strict constructionist" reading the Commerce Clause.  I'm not sure that anyone on the planet is actually a strict constructionist as caricatured by many commentators, but in any event you reach the same result if you either rely on the plain language of the text or look to the very clear normative idea behind the Commerce Clause, i.e., that the federal government has limited powers).

I'm personally a fan of the FHA and the Civil Rights laws, and this result makes me uncomfortable.  It also makes it impossible to have an intelligent discussion about the scope of the Commerce Clause.  Advocates for reading the Commerce Clause to have actual meaning constantly have to deal with the "but that interpretation will lead to the invalidation of the Civil Rights laws" argument.  On the more-federal-power-is-better side of the debate, the desire to protect the Civil Rights laws forces scholars to engage in herculean feats of analytic gymnastics to explain why their view does not drain the Constitutional text of any meaning whatsoever.

Here's where the idea of superprecedent might come in to save the day.  Why don't advocates for a meaningful reading of the Commerce Clause say, "okay, the cases upholding the Civil Rights laws (including the FHA) are superprecedent.  Can we have an honest debate about the limited scope of federal power now?"  Indeed, the cases upholding the Civil Rights laws seem to be a very settled and uncontroversial part of the Constitutional landscape (at least as far as public reliance goes), and therefore would seem to have a stronger claim to superprecedent status than Roe v. Wade.  (I think, by the way, that because public reliance is an important part of the idea of superprecedent, the scope of superprecedent status has to be somewhat fact specific.  So no arguing for giving superprecedent status to the vacuous Wickard v. Filburn unless you're talking about regulating the sale of wheat).

Beyond promoting honesty in the Commerce Clause debate, giving these cases superprecedent status would force liberal commentators (most of the time I count myself in this category) to confront the differences between substantive due process issues and commerce clause issues.  Personally, I am not willing to accept the proposition that either the federal or state governments could enact a law that, say, limited parents to having only one child.  I'm also not willing to accept the proposition that the federal or state governments can prohibit a grandchild from living with his grandmother, which is why Moore v. East Cleavland is my favorite substantive due process case.  (I hope that Judge Alito is asked about these fact patterns during his confirmation hearings.  If he can't find the rights reflected in these positions in the due process clause, as conservative commentators like to say, maybe he could try looking at the Ninth Amendment or the Privileges and Immunities Clause).  I recognize that these results require a normative interpretation of ambiguous constitutional text that as a practical matter may devolve into Constitutional law that is shaped by the policy preferences of the Justices of the Supreme Court.  Accepting this type of judging in the context of the ambiguous Due Process Clause or the Ninth Amendment, however, does not mean that judges should be able to impose their policy preferences in the face of Constitutional text that, like the Commerce Clause, is far more clear in both its plain and purposive meanings.  Combining superprecedent status for the Civil Rights laws with recognition that some of the Constitution's text isn't so indeterminate as to be devoid of meaning might, among other things, reduce the number of liberal commentators that seem to lose all sense of reason when confronted with a judicial nominee who actually tries to take the text of the Constitution seriously.

Ben Barros

[Comments are open but require approval before they post, so there may be some delay]

Weekly Top Ten

More changes this week as some older articles drop off.  Jim Salzman's article on Ecosystem Services, which I discuss here, makes an appearance on the list at Number 10.

1. (269)  How City Hall Causes Sprawl: A Case Study, Michael Lewyn (George Washington University Law School)

2. (208)  Suburban Sprawl, Jewish Law, and Jewish Values, Michael Lewyn (George Washington University Law School)

3. (183)  Sprawl, Growth Boundaries and the Rehnquist Court, Michael Lewyn (George Washington University Law School)

4. (94)  Home as a Legal Concept, Benjamin Barros (Widener University - School of Law)

5. (79)  Efficient Trespass: The Case for 'Bad Faith' Adverse Possession, Lee Anne Fennell (University of Illinois College of Law)

6. (74) Property Rights in Spectrum: Taking the Next Step, Dale Hatfield (University of Colorado at Boulder) and Phil Weiser (University of Colorado at Boulder - School of Law)

7. (72)  Testimony Before Pennsylvania House of Representatives State Government Committee Re: Eminent Domain, Benjamin Barros (Widener University - School of Law)

8. (52)  Substituting Complements, Giuseppe Dari-Mattiacci and Francesco Parisi (Universiteit van Amsterdam - Amsterdam Center for Law and Economics, George Mason University School of Law)

9. (51) Leasing, Ability to Repossess, and Debt Capacity, Andrea L. Eisfeldt and Adriano A. Rampini (both from Northwestern University - Department of Finance)

10. (43) Creating Markets for Ecosystem Services: Notes from the Field, James Salzman (Duke University - School of Law)

Ben Barros

Textbooks on Eminent Domain

A reader who will be teaching a seminar on eminent domain next semester wrote to ask for textbook suggestions.  As far as I know, there aren't any takings casebooks out there.  Steven Eagle's book on Regulatory Takings is more of a treatise.  If you know of anything, please leave a comment.  Also, if you've taught a takings or constitutional property seminar and would be willing to share your syllabus, please leave a comment or send me an e-mail.  [As always, comments require approval before posting, so there might be some delay].

Ben Barros

Hatfield and Weiser on Property Rights in Spectrum

Dale Hatfield (Univ. of Colorado at Boulder) and Phil Weiser (University of Colorado and Boulder School of Law) have posted Property Rights in Spectrum: Taking the Next Step on SSRN.  Here's the abstract:

On the views of almost all commentators, the primary obstacle to recognizing property rights in spectrum is either a lack of economic sophistication or political will by the relevant policymakers. To such commentators, the FCC (or a court) could simply enforce property rights at the geographic boundary of a coverage area as well as at the boundaries (or edges) of different frequency bands. On such a view, if a spectrum licensee did not respect such boundaries - i.e., trespassed onto a neighboring geographic area or frequency band - the FCC (or a court) should issue an injunction to prevent such conduct.

This paper explains that the transition to a property rights model for spectrum is far more complex than commonly portrayed. First, unlike real property, radio spectrum does not allow for clear boundaries, as radio waves propagate in varying ways depending on a variety of circumstances and practical filtering constraints prevent total isolation between adjacent frequency bands. Second, if property rights are granted in a manner that would allow injunctions for trespass, it is quite possible that parties could bring actions solely to threaten an injunction and obtain a license along the lines of the much-criticized patent trolls. Finally, and most significantly, any workable system of property rights will need to rely on (at least to some degree) the predictive models - i.e., statistical predictions as to how often interference is likely to occur - that generally govern how spectrum is used today. Notably, any such reliance begs the question of how such models will be integrated into an enforcement system and with the reality of whether interference is actually present.

We do not have all of the answers worked out for how a property rights system for spectrum would work in practice. We do, however, believe that the overly simple assumptions underlying the claims of most property rights advocates could lead to unfortunate results and unintended consequences. To avoid such results, commentators - particularly those integrating technological, economic, and legal expertise - need to engage on the merits of a critically important policy challenge. Although we do not yet grasp all of the particulars of the ideal model for property rights in spectrum, we do believe that it will look quite different from its real property counterpart to which it is often inaccurately compared.

Ben Barros

Google Maps in Property Class

Over at Concurring Opinions, Joseph Liu has a cool post on using Google Maps to illustrate property cases like Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.

Ben Barros

Taking Drug Patents

I'll probably have more to say on this at some point in the future, but there has been some interesting discussion in the blogosphere about using eminent domain to take patents on drugs used to treat avian flu.  If you are interested in this issue, check out an open letter to President Bush on the issue by Stephen Gordon at the Speculist and a comment on Gordon's letter by Tyler Cowen at the Marginal Revolution.

Ben Barros

Agan and Tabarrok on What are Private Governments Worth?

Amanda Agan and Alexander T. Tabarrok (Both of George Mason University Economics Department) have posted What are Private Governments Worth? on SSRN.  Here's the abstract:

Homeowners associations (HOAs) and other local private governments are expanding in number both in the United States and around the world. Local private governments are also expanding in scope, with many offering private security and a few even offering services such as day care, schools, and local courts to arbitrate homeowner disputes. How valuable are those services to association-members? Our data indicate that houses in HOAs in Northern Virginia are worth, on average, more than 5 percent more than similar houses in the same neighborhood but outside of HOAs. Given those large advantages, it is not surprising that HOAs are growing rapidly.

Ben Barros

GELPI Conference: The Trouble With Conservation Easements

On the surface, conservation easements seem like a pretty good idea.  What could conceivably be wrong with allowing private parties to agree to preserve land in an undeveloped condition?  Well, as it turns out, lots of things.

Greg Bialecki (of the abundantly-named DLA Piper Rudnick Gray Cary US LLP) and Daniel Halperin (Harvard Law School) gave a presentation at the GELPI Conference on some of the issues raised by conservation easements.  They were joined for the Q&A by Jeff Pidot (Maine AG's Office), who is the author of an excellent report issued by the Lincoln Institute for Land Policy titled Reinventing Conservation Easements:  A Critical Examination and Ideas for Reform.

Bialecki and Halperin's discussion focused on the tax issues surrounding conservation easements.  I often tell my business organizations students that tax issues shape almost every business transaction; it turns out that tax also drives conservation easement transactions.  Bialecki explained that the gift of a conservation easement allows the donor to take a charitable deduction from their tax liabilities.  Combined with state legislation that ironed out some enforcement issues, this tax treatment caused the number of conservation easements in the United States to explode.

Like any other tax deduction, gifts of conservation easements are subject to abuse.  A series of articles by the Washington Post exposed some questionable conservation easement transactions that created a high deduction for the donor in relation to public benefit conferred by the easement.  This led to Senate and IRS investigations.  It is still an open issue as to whether there are only a few abuses or whether there is a more widespread problem with conservation easements.

Halperin, who is a tax professor, elaborated on the tax policy concerns raised by conservation easements.  As the Treasury Department's Deputy Assistant Secretary for Tax Policy in 1979, Halperin had raised a number of concerns about conservation easements that seem very prescient today.  The core problem is that there is no assurance that the cost to the public (the tax deduction) is equivalent to the benefit to the public (the restriction on the land created by the easement).  It is very difficult to value a conservation easement.  One approach would be to look to the reduction in value of the land caused by the easement.  Halperin, however, said that the better measure is the benefit conferred to the public, using the analogy of a used car donated to a charity.  The person donating the car might place a hypothetical value on it that is significantly higher than the price that the charity actually gets for the car.  The public benefit of the charitable donation, and the deduction the donor can take under current tax law, is represented by the price the charity gets for the car.  Of course, this approach still presents valuation difficulties, because with donated conservation easements there is no transaction that places a value on the easement.

Halperin also discussed conservation buyer transactions, where a land trust would buy property (say for $1 million), then place a conservation easement on the property.  The land trust would then sell the property to a developer for $600,000 and the developer would make a charitable donation to the land trust of $400,000.  These transactions have a smell test problem.  Halperin explained that developers often prefer to do the transaction this way because the deduction is done as a direct gift to charity (which is likely to get less IRS scrutiny than a typical conservation easement donation) and because the donation is often made with appreciated securities, allowing the donor to avoid paying capital gains tax.  Halperin also noted that these transactions can also be structured where the developer's parents pay for the donation to the charity, amounting to a non-taxed transfer from one generation to the next.  All of this amounts to a significant loss of tax revenue, though exactly how much is anyone's guess -- Halperin said that no one, at the Treasury Department or elsewhere, has any idea how much revenue is lost to conservation easement donations.

On top of the tax issues, there are a host of other potential problems with conservation easements.  For example, as things stand now, there is no standard for the type of land that can be made subject to a conservation easement.  Conservation easements placed on ordinary land can contribute to sprawl and can place development pressure on more ecologically-sensitive land.  In most areas, there also are no mechanisms in place to coordinate conservation easements with local land use regulation and planning.  Indeed, in most states, there is no oversight or tracking whatsoever of conservation easements.  All of these issues together show a strong need for reform of our current conservation easement system.

Ben Barros

New Leiter Rankings

Brian Leiter's latest rankings of top law schools by faculty citation and student LSAT scores are available on a new site: Leiter's Law School Rankings.

Ben Barros