PropertyProf Blog

Burke on Kelo and Sweet Home

Marcilynn A. Burke (University of Houston - Law Center) has posted Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and other Tales from the Supreme Court on SSRN.  Here's the abstract:

This Article traces and analyzes an emerging trend in constitutional and land use law and the rhetoric that embodies it. The Article examines the potential impacts of rhetoric that the Supreme Court's ruling Kelo v. City of New London has fanned into a flame. The rhetoric paints a picture of imbalance, pitting small landowners against inept government officials who are taking private property. And purveyors of this rhetoric contend that activist judges are simply rubber stamping this land grab. A reform movement has emerged to solve the problems that the stories portray. Yet, there is a palpable disconnect between the rhetoric plied in the nation's media and the reality of eminent domain. This Article demonstrates that the rhetoric and suggested reform are best viewed in the context of what has been dubbed the "Constitution in Exile" movement. This movement seeks to restore what it considers the original meaning of many constitutional provisions including "public use." Exposing and challenging that movement, the Article contends that the movement merely seeks particular ideological outcomes that it masquerades as a rigorous interpretative theory.

Ben Barros

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Lovett on Easement Relocation

John Lovett (Loyola University New Orleans - School of Law) has posted A Bend in the Road: Easement Relocation and Pliability in the New Restatement (Third) of Property: Servitudes on SSRN.  Here's the abstract:

Section 4.8(3) of the Restatement (Third) of Property: Servitudes adopts a seemingly radical new approach to the question of whether an easement may be relocated by the servient estate owner without the easement holder’s consent. Although the traditional common law rule prevented the unilateral relocation of an easement by the servient estate owner, the new Restatement rule allows such a relocation for purposes of developing the servient estate as long as the relocated easement continues to serve the holder’s needs and is not unduly burdensome. This new approach, which was borrowed whole cloth from the civil law rule long used in Louisiana and Europe, has recently been adopted by major common law jurisdictions such as New York, Massachusetts and Colorado, at the same time that it has been subject to stinging criticism from American property law scholars.

This article situates the debate surrounding section 4.8(3) in the now long simmering but still expanding discourse over property and liability rules as entitlement protection mechanisms. In particular, this article argues that Abraham Bell and Gideon Parchomovsky’s vision of pliability rules, a dynamic form of liability rules that respond to some of the criticisms of liability rules and yet can provide flexibility when the competing interests of multiple parties and constituencies need to be balanced, can be a useful lens for understanding and ultimately refining section 4.8(3). Ultimately, this article shows that although section 4.8(3)’s shift from a property to a liability rule approach in the context of easement relocation carries risks of increasing uncertainty, discouraging investment and perhaps fomenting market avoidance, it is nevertheless a productive change in the law because it helps courts and parties understand easement and servitudes not as inflexible property rights but as evolving relationships between parties with concurrent interests in the same land, one that is quasi-possessory and the other fully possessory. The article also suggests four specific ways in which section 4.8(3) could be refined in the direction of a more nuanced and refined pliability rule consistent with the vision of Bell and Parchomovksy to respond to important criticisms leveled against it and liability rules in general. In the end, a refined section 4.8(3) can itself become a prime example of the value of pliability rule modeling as a technique for entitlement protection design.

Ben Barros

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Weekly Top Ten

Here's this week's list of SSRN's ten most downloaded recent property articles:

1. (253) The Effect of Community Gardens on Neighboring Property Values, Vicki Been and Ioan Voicu (New York University School of Law)

2. (151) The Green Costs of Kelo: Economic Development Takings and Environmental Protection, Ilya Somin and Jonathan H. Adler (George Mason University School of Law and Case Western Reserve University School of Law)

3. (112) The Tragedy of the Commons and the Myth of a Private Property Solution, Amy Sinden (Temple University - James E. Beasley School of Law)

4. (79) Jefferson Meets Coase: Train Sparks, the Harm-Benefit Distinction, and Natural Property Rights, Eric Claeys (Saint Louis University School of Law)

5. (67) Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass, Shyamkrishna Balganesh (Yale University Law School)

6. (65) A Rule against Perpetuities for the Twenty-First Century, Frederick R. Schneider (Northern Kentucky University - Salmon P. Chase College of Law)

7. (52) Eminent Domain After Kelo v. City of New London: An Argument for Banning Economic Development Takings, Charles E. Cohen (Capital University Law School)

8. (46) Relational Contracts in the Privatization of Social Welfare: The Case of Housing, Nestor M. Davidson (University of Colorado Law School)

9. (46) The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights, Mark Fenster (University of Florida - Fredric G. Levin College of Law)

10. (36) Property Law, Dean Lueck and Thomas J. Miceli (University of Arizona and University of Connecticut Department of Economics)

Ben Barros

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What's going on in Vernon, California?

Thanks to my student John Donovan for pointing to this NPR story on Vernon, California.  Its moto is "exclusively industrial since 1905."  I think that's close to right (at least the exclusively industrial part): about 44,000 people work in Vernon, but it has a population of about 100.  Seems there are some mighty strange things going on there, including decades of uncontested elections and all sorts of efforts to keep challengers off the ballot.  It's worth a listen if you have four and a half minutes this weekend, if only because I think there are some unusal exam ideas in there.  I think you'll be hearing a lot more about this and related issues in the near future.  Here's a satellite photo of Vernon.  Looks mighty industrial to me.

Alfred Brophy
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Pana O'ahu: Sacred Stones, Sacred Land

Following up on some posts on recent scholarship on property monographs (Bourgeois Nightmares and Broken Trust) and a couple on cultural property (on native culture and the Elgin Marbles), I thought that I'd talk about a wonderful book, Jan Becket and Joseph Singer's Pana O'ahu: Sacred Stones, Sacred Land (University of Hawaii Press, 1999). It has black and white pictures of sacred sites around O'ahu.

The book grew out of controversy over the construction of the H-3 Interstate in the early 1990s that obliterated many ancient sites, including--it is believed--the Kikuiokane Heiau (shrine).  The authors describe in their preface how the H-3 controversy led to their efforts to photograph sacred sites:

The demolition of that heiau gave rise to this project: an effort to locate and document remaining heiau and smaller shrines on O'ahu before they too suffer the same fate. Kukuiokana Heiau itself had been partly dismantled many decades before by Libby, McNeill & Libby Pineapple Company in a failed effort to grow pineapple in Kane'ohe.  We know, however, that it was an important structure in the region: An old photo taken from the Pali lookout miles away shows a massive platform of some stone where the freeway now passes.  But this is merely the latest in a long series of dismantlings.  If the roadbed of H-3 is made from the remnants of a heiau, so is much of the roadbed of highway circling the island.  The stones of Kanahau Heiau, connected in myth with the goddess Hi'iaka, helped pave the old road from Kailua to Waimanalo.... (xi)

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What Law Schools Do to Improve Their US News Ranks

Over at Orinkerr.com, Orin's asking for vignettes on what crazy things law schools do to improve their US News rankings--like starting a part-time program and forcing applicants with lower LSAT scores into it, I guess.  (The idea here is that those part-time folks aren't counted by US News.)

Then there's this piece ("Brand U.") from the New York Times, about efforts Universities have been making to improve their US News rankings.  It's pretty funny and I think you'll enjoy it.  But it would be funnier if it weren't so true.  The consumer culture is coming to law schools in a big way, I think.  In some ways this is good; every business ought to focus on delivering value to its customers.  In other ways, I find this troubling; students ought not to just be "buying" a degree.  I'll have a few thoughts shortly on how property profs fit into this picture.

One low-cost strategy (with perhaps some yield--the jury's still out on this one) is to pay more attention to what scholarship law journals publish.  Maybe sometimes US News will take notice of a high quality review and respond.  I've already suggested that the University of Houston's very strong Houston Law Review ought to drive up their rankings.  I think one example of where this may be happening is DePaul Law School.  The DePaul Law Review is a strong review (it's in the top 40s of law reviews in terms of citations).  This year DePaul moved to 80 on the US News chart, up from the third tier last year.  Anyone who's spent time reading the DePaul Law Review in recent years has to draw the conclusion that there's a really vibrant intellectual climate at that school.  Cause and effect?  I'm not in a position to say right now--got to look at some other numbers.  Suggestive nevertheless.

Alfred L. Brophy

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Jones v. Flowers

The Supreme Court today decided Jones v. Flowers, a procedural due process case involving the tax forfeiture of a home.  The state had sent Jones notice by certified mail, which was returned as undelivered.  The issue in the case was whether the state had to do more to notify the property owner once the state knew, through the return of the certified mail notice, that the attempt at notice had not been successful.  In an opinion by Chief Justice Roberts, the Court held that in the circumstances presented by the case, due process required the state to take additional reasonable steps to provide notice.  Justice Thomas dissented, joined by Justices Scalia and Kennedy.  Justice Alito did not take part.  The opinions are available here.  ScotusBlog has a post on the case here.

Here are a few preliminary thoughts about the case:

First, it is interesting that Chief Justice Roberts went with the liberal wing on this case.  The Court's last procedural due process notice case, Dusenberry v. United States, 534 U.S. 161 (2002), had split 5-4 on liberal-conservative lines in favor of the government.  It is possible that the case might have gone the other way if Chief Justice Rehnquist and Justice O'Connor were still on the Court.  Dusenberry, however, was a prisoner case, and I have a personal view that it is a mistake to try to draw conclusions from prisoner cases and apply them to other contexts.

Second, although the Court ruled against the government, it did not go as far as petitioner had asked it to go.  Jones was represented at the Court by the Public Citizen Litigation Group.  Public Citizen brought the case seeking a holding that if certified mail notice is returned, the state has an obligation to try to find the property owner's current address through voter registration lists, internet searches, etc.  Jones's counsel had a hard time with this position at oral argument, and the Court ultimately rejected it as being too burdensome on the state.  Instead, the Court held that under the circumstances presented by the case, it would have been reasonable for the state to take other, less burdensome steps -- post a notice on the property itself and send a notice by regular mail, which, unlike registered mail, would not automatically be returned to the sender.

Third, while I understand that the government does not want to have to jump through too many hoops to provide notice to delinquent property owners, I don't really understand the state's position in Jones v. Flowers.  It seems to me that in tax delinquency cases, the state's paramount interest is to get the back taxes paid with as little effort as possible.  Tax forfeitures require a lot more effort than taking a few relatively minor steps to provide actual notice to the property owner.  In part for this reason, many states require additional efforts to provide notice.  Indeed, Arkansas changed its notification procedures after the Jones v. Flowers litigation began (meaning only that the statute was enacted later; I don't know whether the litigation played any role in the Arkansas legislature's decision to change the procedures).  Towards the end of his opinion, Chief Justice Roberts stated that "There is no reason to suppose that the State will ever be less than fully zealous in its efforts to secure the tax revenue it needs."  I'm not sure that in this case the state actually acted in its fiscal interest, and I'm not sure that economic rationality is something that can be expected from government actors.

UPDATE:  I also think that it is interesting that the liberal/conservative wings were on opposite sides in protecting a property owner's right to maintain ownership of a home in Jones v. Flowers and in Kelo.  The constitutional issues of course are very different, and Jones v. Flowers involved fault on the part of the property owner.  But it is striking to see the same justices who are so pro-property owner in takings cases take such a strong stand against requiring the government to take relatively modest steps to notify people before their homes are taken.

Ben Barros

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Jane Jacobs (1916-2006)

I have just learned the sad news that Jane Jacobs has passed away.  The New York Times obiturary here.  Ms. Jacobs is best known to propertyprof readers for her 1961 book The Death and Life of Great American Cities.  The book, which I first read in a college urban history class, has a humane focus and an important question: how can we make cities more liveable.  She wrote it by looking closely at urban life and thinking about how human decisions (as simple as closing a street to traffic) have many consequences, not all of the good, for life in cities.  She was a perceptive, thoughtful, and compassionate person.

Ms. Jacobs' most recent book, Dark Age Ahead, pubished in 2004, predicts that we are entering a period of retrenchment in culture and science.  I hope she is wrong, but after reading her book I fear she may be right.  She spent much of her life in Toronto. 

I had the honor of clerking for her brother, John D. Butzner, on the United States Court of Appeals, Fourth Circuit, in 1990 and 1991.  He, too, died earlier this year.  I think there's some good work to be done on Butzner's jurisprudence (he was a Great Society liberal, though had an uncommon belief in the simple elegance of common law reasoning and in judicial restraint) and linking it to Jacobs' writing, particularly Death and Life of Great American Cities.  I think if one wants to know how a judge might implement Jacobs' ideas, one can get a good sense from reading Butzner's opinions. 

Here is a lovely interview from 2001 in Reason magazine.

Endnote: Jane Jacobs' portrait is courtesy of our friends over at wikipedia.

Update: I've now posted to the New York Times full obituary.

Alfred L. Brophy

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Rosen on Shelley v. Kraemer

Mark D. Rosen (University of Minnesota Law School and Chicago-Kent College of Law) has posted Was Shelley v. Kraemer Incorrectly Decided? Some New Answers on SSRN.  Here's the abstract:

Shelley v. Kraemer, the 1948 decision that famously forbade state courts from enforcing racially restrictive covenants, has proven to be immensely difficult to justify. Under Shelley’s “attribution” rationale, a contract’s substantive provisions are to be attributed to the state when a court enforces the contract. Thus although Shelley ruled that racially restrictive covenants themselves were perfectly legal, it held that judicial enforcement of the covenants constituted state action that violated the Equal Protection Clause.

Shelley’s attribution rationale meant that courts could not enforce contracts with provisions that could not have been constitutionally enacted by a legislature. This Article shows, however, that neither the Supreme Court nor lower courts have followed Shelley’s rationale. For instance, courts regularly enforce settlement agreements that limit the settling parties’ speech despite the fact that statutory limitations on the identical speech would be unconstitutional. Indeed, the Court has eschewed Shelley’s approach even in virtually indistinguishable contexts of racial discrimination.

After showing that neither courts nor scholars have yet provided a satisfactory alternative rationale for Shelley’s holding that can make sense of the post-Shelley case law, this Article offers a wholly new explanation. Whereas courts and scholars to date have understood Shelley as a constitutional decision based on the Fourteenth Amendment, this Article argues that Shelley is best grounded in federal statutory law enacted under the Thirteenth Amendment – the only constitutional provision that applies directly to individuals and hence does not require there to be “state action.”

An early Supreme Court decision held that Section 2 of the Thirteenth Amendment grants Congress the power to regulate so as to abolish the incidents of slavery, which, the Court explained, encompasses “disabilit[ies] to hold property [or] to make contracts.” Racially restrictive covenants implicate both of these and hence could have been regulated by Congress under its Section 2 powers. Even absent Section 2 legislation, the Shelley Court could have relied on Section 2 itself to proscribe the restrictive covenants as a matter of federal common law, akin to dormant commerce clause doctrine. This was not necessary, however, because Congress had enacted two statutes under its Section 2 powers whose language readily reached – and proscribed – racially restrictive covenants.

The Article establishes that these statutes were known to the Shelley Court, and tries to explain why the Court shunned them as a basis for its holding. The Article then explains several benefits of presently reconceptualizing Shelley as a Thirteenth Amendment-based decision. The Thirteenth Amendment, unlike the Fourteenth, applies to individuals, and hence provides a basis for declaring the racially restrictive covenants themselves to be illegal, not just their enforcement, thereby solving a long-standing embarrassment of Shelley’s analysis: the case’s conclusion that racially restrictive covenants themselves were perfectly legal. The Thirteenth Amendment also provides a basis for rationalizing the post-Shelley case law. Further, the Article’s suggested approach has important institutional implications: whereas Shelley allocated the duty to police restrictive covenants solely to courts, the Article’s Thirteenth Amendment approach invites Congress and the President to jointly determine the sorts of covenants (or other matters) qualify as incidents or badges of slavery. Finally, Shelley helped solidify a constitutional culture that largely overlooks the Thirteenth Amendment and instead relies primarily on the Fourteenth Amendment’s due process and equal protection clauses. Reorienting Shelley in the manner advocated here accordingly may help revive largely dormant Thirteenth Amendment principles.

Ben Barros

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Law Review Ranking Table and Apologies to the Houston Law Review

A quick correction here on the law review citations, which I announced in a post on law school rankings a little more than a week ago.

I inexplicably left the Houston Law Review off the list of under-valued reviews in my paper "The Emerging Importance of Law Review Rankings for Law School Rankings, 2003-2007."  The Houston Law Review is ranked 37, 33 places above its parent institution.  I would expect, given their law review's strong performance, that the University of Houston is ripe for reconsideration and improvement in next year's US News ranking.  In fact, as Brian Leiter has recently commented, the University of Houston deserves a higher ranking, for other reasons as well (like its high quality faculty).  My apologies to my friends at the University of Houston and especially the Houston Law Review, which has done admirable work in recent years in getting strong articles, which are well-cited.  As faculty advisor to the Alabama Law Review, I've spent some time reading through our competitors' journals, to get a sense of what they're doing.  And I've been mighty impressed with Houston Law Review in particular.  They're a journal to emulate.

The corrected draft is now up on ssrn.  In cased you downloaded the old version of the paper, here's the correct table of "undervalued" law reviews--reviews that are performing significantly better in terms of citations than their parent institutions (the first number is the number of places the review's rank is above its school's US News rank; the second number is the law review's rank in citations by journals).

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What were the Elgin Marbles?

Such is the title of an interesting opinion piece by emeritus Professor John Boardman of Oxford University published in the weekend edition of the Wall Street Journal.  (It is subtiteld: A look at these sublime works and the British Lord who was their savior.)  Boardman's piece is available by subscription only, so let me give you the brief gist of it.  The "Elgin Marbles" are marble sculptures that once adorned the Parthenon.  In the early nineteenth century, Lord Elgin went to Athens and first made plaster casts of the marble sculptures; later he negotiated with authorities to remove some of the marble sculptures (others remained in place in the Parthenon until the late twentieth century, when they were removed to help protect them).  Professor Boardman writes of their importance and place in the British Museum:

Eventually, at great financial loss to him, they were acquired by the British Museum.  Their appearance created a revolution, influencing artistic thought during the 19th century and subsequently.  And in London they have remainded to instruct and delight millions annually.  If retuned to Athens they could only go into another museum and be seen by far fewer people, since Greece is visited less for art than for sunshine.  . . . [I]n Britain they transformed scholarly attitudes to Greek art world-wide, and have had more effect int he past 200 years than they did in over 2,000 in Athens....

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Weekly Top Ten

It's been a crazy semester, and I've been neglecting our Weekly Top Ten list of the most-downloaded recent property papers on SSRN.  Now that exams are almost upon us, I should do a better job -- blogging is a great break from grading.  Actually, pretty much anything is a great break from grading . . .

1. (223) The Effect of Community Gardens on Neighboring Property Values, Vicki Been and Ioan Voicu (New York University School of Law)

2. (125) The Green Costs of Kelo: Economic Development Takings and Environmental Protection, Ilya Somin and Jonathan H. Adler (George Mason University School of Law and Case Western Reserve University School of Law)

3. (83) The Tragedy of the Commons and the Myth of a Private Property Solution, Amy Sinden (Temple University - James E. Beasley School of Law)

4. (69) Jefferson Meets Coase: Train Sparks, the Harm-Benefit Distinction, and Natural Property Rights, Eric Claeys (Saint Louis University School of Law)

5. (62) Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass, Shyamkrishna Balganesh (Yale University Law School)

6. (53) A Rule against Perpetuities for the Twenty-First Century, Frederick R. Schneider (Northern Kentucky University - Salmon P. Chase College of Law)

7. (44) Relational Contracts in the Privatization of Social Welfare: The Case of Housing, Nestor M. Davidson (University of Colorado Law School)

8. (43) The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights, Mark Fenster (University of Florida - Fredric G. Levin College of Law)

9. (40) Eminent Domain After Kelo v. City of New London: An Argument for Banning Economic Development Takings, Charles E. Cohen (Capital University Law School)

10. (34) 'To Pursue any Lawful Trade or Avocation': The Evolution of Unenumerated Economic Rights in the Nineteenth Century, James W. Ely (Vanderbilt University School of Law)

Ben Barros

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Roark on Kelo

Marc L. Roark (Duke University) has posted The Constitution as Idea: Defining Describing Deciding in Kelo in the bepress legal repository.  Here's the abstract:

In June 2005, the Supreme Court in a Five to Four Decision marked its most controversial decision in recent memory. The case of Kelo v. City of New London, set off a fire storm of response to the Court’s ruling that economic development takings satisfied the Fifth Amendment. This essay is about Kelo. It is about how the Court uses words, how the defining ability of words create institutional space in which the Court operates, and which defines things beyond the words.

Ben Barros

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New Orleans Rebuilding

For those following post-Katrina issues, John Lovett (Loyola-New Orleans and Chair of the AALS property section) has an op-ed in the Times Picayune on some aspects of proposed rebuilding policies.

Ben Barros

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Look to your left . . .

And you will see that Al Brophy, who has been guest blogging here for the past month or so, has become a contributing editor to this blog.  Welcome, Al, and thanks for your great posts so far.

Ben Barros

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Images of Property in American and Hawaiian Landscape Art

Last fall I posted a little bit about a lecture that I give to my property students at the end of the year, about images of property in landscape art.  As the end of the year is fast-approaching, I dusted off those notes and changed them up a bit, too, in memoriam of Augusto Camara, a student at the University of Hawaii Law School who recently passed away.

This year I began with Ralph Waldo Emerson's discussion of the centrality of property to America in his 1841 address, "The  Conservative":

Now you touch the heart of the matter, replies the reformer. To that fidelity and labor, I pay homage. I am unworthy to arraign your manner of living, until I too have been tried. But I should be more unworthy, if I did not tell you why I cannot walk in your steps. I find this vast network, which you call property, extended over the whole planet. I cannot occupy the bleakest crag of the White Hills or the Allegheny Range, but some man or corporation steps up to me to show me that it is his.

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Justice Stevens on Kelo

I just received in the mail the latest issue of the Fordham Law Review containing the papers delivered at a symposium on the jurisprudence of Justice Stevens.  At nearly 1,000 pages long, it would make a good doorstop or blunt instrument for a murder mystery.

I just read Justice Stevens's remarks delivered at the symposium, Learning on the Job, 74 Fordham L. Rev. 1561 (2006).  The Justice's remarks contain an interesting discussion of the evolution of his views on several constitutional issues during the course of his time on the Court.  His remarks on Kelo might be of particular interest to readers of this blog.  After discussing Lingle v. Chevron, Justice Stevens remarked:

Whereas Lingle corrected a past misunderstanding, the second case, Kelo v. City of New London, which upheld an integrated development plan designed to revitalize a city's economy, adhered to precedent while noting that different plans may well pose questions for the future.

Though much criticized, the Kelo opinion was surely not an example of "judicial activism" because it rejected arguments that federal judges should review the feasibility of redevelopment plans, that they should evaluate the justification for the taking of each individual parcel rather than the entire plan, and that they should craft a constitutional distinction between blighted areas and depressed areas targeted for redevelopment.  Indeed, the dissent criticized the opinion for being unduly deferential to the decisions of state legislative and administrative bodies.

A second criticism, however, brings me back to the thought that I expressed at the outset of these remarks.  It is the criticism that the opinion was not faithful to--indeed, that it was "wholly divorced from"--the text of the Constitution.  The relevant constitutional text provides that private property shall not "be taken for public use, without just compensation."  As Justice O'Connor explained in her Lingle opinion, that text does not prohibit any taking of private property, but instead merely places a condition on the exercise of the takings power.  Thus, just as a purely literal reading of the text of the Due Process Clause would confine its coverage to procedural safeguards and entirely eliminate its substantive protections, including those that have made provisions of the first ten Amendments applicable to the states, a purely literal reading of the Takings Clause would limit its coverage to a guarantee of just compensation.

We have nevertheless assumed that the reference to "public use" does describe an implicit limit on the power to condemn private property, but over the years we have frequently and consistently read those words broadly to refer to a "public purpose."  Because one of the opinions rejecting "use by the public" as the proper interpretation of those words was authored by Justice Holmes, and because the debate between Holmes and Brandeis in the Pennsylvania Coal case demonstrates that Brandeis's views with respect to takings were even more deferential than Holmes's, I am confident that both of them would have endorsed our holding in Kelo, just as both of them ultimately endorsed the doctrine of substantive due process.

To me, the most striking part of these remarks is the bold textual claim that the words "public use" in the Just Compensation Clause are an implicit, but not an explicit, limit on government power.  I'm not exactly sure what that means or why it would be significant.  Perhaps Justice Stevens is suggesting that any limiting impact of "public use" has been created by the Court, not the constitutional text, therefore justifying a broader reading of those words.  It is plausible to read "public use" as not being limiting at all, though that to say the least is a controversial position.  But I have particular difficulty with this intermediate concept of implicit limitation, and the suggestion that the application of such limitations is a matter of choice for the Court.

UPDATE:  A version of Justice Stevens's remarks is available here.  The text above has been slightly modified from my original post.

Ben Barros

Click here to see all takings posts

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Aloha Jurisprudence

Following David Callies' advice, I’ve been teaching (and reading about) a series of cases, mostly about native Hawaiian customary rights–to cross land for fishing and beach access and for gathering of agricultural products for personal use.  Some of this appears in the Hylton, Callies, Franzese, and Mandelker casebook, Property Law and the Public Interest, but I don't think any other casebooks have serious discussion of them.  [Gordon Hylton's  Law School Rankings, propertyprof readers will recall, has been the subject of much discussion recently.] That's unfortunate, because there may be some lessons in those cases for those of us who live in the continental United States.

There's some terrific scholarship on Hawaiian legal history--running from Mari Matsuda's early work on "Law and Culture in the District Court of Honolulu, 1844-1845: A Case Study of the Rise of Legal Consciousness," 32 American Journal of Legal History 16 (1989) to Lilikala Kameeleihiwa's Native Lands, Foreign Desires, to Patrick V. Kirch and Marshal Sahlins' Anahulu: The Anthropology of History in the Kingdom of Hawaii.  And though it doesn't relate so much to legal history, you might add Sahlins' How 'Natives' Think: About Captain Cook, For Example.  For a historian of property law there's a particularly important event: the Great Mahele of 1848-–the transition from native patterns of ownership (in which all land was held by the king) to common law ownership. Stuart Banner’s written a lot about this recently.  The records of the Great Mahele are a gold mine for historians and anthroplogists, because as people testify about their land (and thus make out a case for being assigned rights to it), they tell much about who lived there and how long and how they used the property and thought about their relationships to other occupiers of the land.  Important works mining those records include Native Lands, Foreign Desires and Jocelyn Linnekin's Sacred Queens and Women of Consequence: Rank, Gender, and Colonialism in the Hawaiian Islands.

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Fennell on Properties of Concentration

Lee Anne Fennell (University of Illinois College of Law; New York University School of Law) has posted Properties of Concentration on SSRN.  Here's the abstract:

Although collective action problems in spatial association can produce undesirable outcomes like concentrated poverty, policy responses are rarely calibrated to address the underlying scarcities in a flexible or fine-grained manner. This paper examines what it would mean to view problems of spatial association as resource dilemmas. I argue that the rich literature surrounding the allocation and protection of entitlements can and should be used to gain analytic traction on group formation decisions that are capable of producing sustained, problematic spatial concentrations. My analysis centers on a single context: concentrated poverty in metropolitan neighborhoods. However, the article probes outward from that focal point to consider the relationship between property and association more generally and to identify conceptual stopping points for the application of property theory to matters of association. By doing so, I make the case for an appropriately limited notion of associational entitlements.

Ben Barros

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NY Times on Property in the Body

The Times Magazine today has an outstanding story on property in human tissue.  Among other things, it provides context for Moore v. Regents.  A must read for anyone who is interested in property in the body or who teaches Moore in first year property.

Ben Barros

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