PropertyProf Blog

Sandefur on post-Kelo Backlash

Tim Sandefur has an interesting new post on the Kelo backlash, which is largely pessimistic about the actual impact of the reform laws that have been enacted so far.  I completely agree with his view that reform statutes that don't address blight takings won't accomplish anything of substance.  Definitely worth a look.

Ben Barros

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The Relationship Between Law Review Rankings and US News Law School Rankings

The release of the 2007 US News rankings of law schools has set off another round of speculation on the meanings of the rankings and what, if anything, schools can do to improve the quality of the education they provide, as well as their rankings.  David Hoffman over at Concurring Opinions has been asking about where law schools should direct money.  Bill Henderson over at the Conglomerate has presented some rather sobering data about how static law school peer assessments are.  If you haven’t seen Dan Filler and Dan Solove’s chart over at Concurring Opinions, I think you’ll enjoy it.  And our leader here at the Law Professor Blog Network, Paul Caron, has done his usually excellent job of sorting out all the changes.  Of course, there's a lot of talk about how to improve the rankings.  There's the recent discussion of the Hylton rankings over at elsblog (and here at propertyprof). Andrew Morriss at elsblog has suggested some alternative measures (employment data, ssrn, but not law review citations).

Drawing upon earlier evidence (summarized here) that there is a close connection between the citation rankings of law reviews and the ranking of their parent institutions, I have a new paper that looks to changes in both the US News rankings and law journal rankings over the past few years.

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The Hylton Rankings II (at properprof)

Tomorrow I’ll be back to posting on property stuff. 

Over at Empirical Legal Studies, the Hylton rankings are continuing to gather press, though Andrew Morriss isn’t nearly as positive on them as either Jason Czarnezki or me.  Morriss raises the important point that Hylton relies on US News’ peer assessment scores, which Morriss finds problematic. I don’t think they’re nearly as bad as Morriss does.  For one, there’s a high correlation (.86) between a school’s US News peer assessment score and citations to the that school’s main law review (for schools in the US News top 50).   And there’s a high correlation (.91) between a school’s US News peer assessment score and the midpoint of the 75th and 25th percentiles on the LSAT of the school’s entering class, as I said in my first post on the Hylton rankings.  So, checking against the (readily available and I think decent) data, they seem to have some validity in terms of measuring school quality.

I, of course, agree with Morriss’ critique that there are some strange things going on with peer assessment scores.  How could anyone say that UT-Austin or Vanderbilt or UCLA is anything other than outstanding-–to say nothing of Columbia or the University of Chicago?  When I filled out the US News evaluation last fall, I ranked about twenty schools as five.  How could I do otherwise?

So should we use SSRN instead?

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Takings and Patents

Over at Patently-O, Dennis Crouch has an interesting post on a Fed Circuit case holding that a patent is not a property right protected by the Takings Clause.  My own (admittedly somewhat uninformed) comments on the related issue of state takings of IP are here and here.

Ben Barros

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Lingle and Eastern Enterprises

A person who had read my recent essay on Lingle v. Chevron asked me whether I thought Lingle would have an impact on how Eastern Enterprises v. Apfel should be interpreted going forward.  For those unfamiliar with Eastern Enterprises, a four-member plurality of the Court (O'Connor, Rehnquist, Scalia and Thomas) held that a retroactive imposition of liability on a coal company for the healthcare costs of former employees amounted to an unconstitutional taking.  Justice Kennedy concurred in the judgment on the ground that the act violated substantive due process, but dissented on the takings issue.

I've never really been sure what to make of the Eastern Enterprises plurality, and unfortunately Lingle may not have clarified things much.  Justice O'Connor's analysis in Eastern Enterprises certainly seems much more related to substantive due process than to other regulatory takings cases, and I think that Justice Kennedy's concurrence/dissent in Eastern Enterprises is convincing on that point.  So on one level, the recognition in Lingle that the Court's regulatory takings cases have improperly incorporated elements of substantive due process analysis could be used to discount the continued significance of the Eastern Enterprises plurality opinion.  On the other hand, the Court's language in Lingle that the takings test is concerned with the burden imposed on the property owner can be seen as consistent with the Eastern Enterprises approach.  My own preference would be to have retroactive and disproportionate impositions of liability reviewed under a substantive due process standard that has a bit more bite than the typical rational basis level of review.  I suspect that Justice Kennedy would agree with this approach.  His brief concurrence in Lingle, which references Eastern Enterprises, continues to use "arbitrary or irrational" language.  But in substance I think his approach, at least in this context, is less deferential than that typically applied in economic substantive due process cases.

I'd certainly welcome the thoughts of other takings geeks on this issue.  (Of course, I'd welcome anyone's thoughts on this, but you have to be a takings geek to care much about Eastern Enterprises).

Ben Barros

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Rails to Trails in NYC

Thanks to Dr. Craig Shelley for sending a link to NPR's lovely story, "Project Gives Forgotten NYC Rail Line New, Lush Life."  It's about an abandoned elevated rail in NYC (about a mile and a half long, built in the 1930s), called the High Line, that's now being converted into a park.

Film at 11--no, actually right now.  Check it out--this is pretty cool.  Great views of the west side and some property talk, too.

Now, where's Danaya Wright to talk about the legal implications of this conversion?

Alfred L. Brophy

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The Hylton Rankings: US News Without the Clutter

I’ve been a huge fan of J. Gordon Hylton ever since, as a youngster, I read his great work on African American lawyers in Reconstruction Virginia.  I highly recommend it to you all.  Gordon and my colleague David Callies and some other folks have an innovative property casebook, which I recommend to you for insights into teaching and property theory, even if you’re teaching out of another book.  And if you are using another book, I recommend it to you for consideration for adoption. 

When I saw, in Jason Czarnezki's post over at Empirical Legal Studies, that Gordon has a new ranking system–-“US News Without the Clutter”–-I was, to say the least, interested.  (Paul Caron's picked up this story.) Gordon makes the point, which I agree with completely–-that law school rankings ought to focus on quality of students and quality of faculty.  The key question for me is what’s the intellectual experience at a law school?  Is it a place on fire with ideas?  If so, that’s a place that deserves a good ranking, IMHO.  I think that’s what ought to matter to prospective students, as well.

Gordon, then, looks at two things: student quality (as measured LSAT midpoint between 25th and 75th percentiles) and faculty quality (as measured by US News’ peer assessment scores).  Good idea–I tend to think that much of the rest of that stuff is (1) manipulable (particularly self-reports on graduates’ employment) and (2) irrelevant to the intellectual experience of students and faculty at the school.

I’m enamored of what should henceforth be known in the trade as the “Hylton Rankings.” 

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Barros on Home as a Legal Concept

I've posted the final version of my article Home as a Legal Concept on SSRN.  Here's the abstract:

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home.

The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.

Ben Barros

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Podcasts from the AALS Annual Meeting

The AALS has announced that podcasts of many of the panels at the annual meeting are now on-line. 

Propertyprof readers may be particuarly interested in listening to the following programs.  Click on the highlighted links to download the podcast:

Joint Program of Sections on Property Law and State and Local Government Law

Eminent Domain and Economic Development

Moderator: Clayton P. Gillette, New York University School of Law
Speakers: Vicki Lynn Been, New York University School of Law
David L. Callies, University of Hawaii William S. Richardson School of Law
Thomas W. Merrill, Columbia University School of Law
Patricia Salkin, Albany Law School Union University

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Property Poetry

Here’s a nice topic for a Saturday afternoon in spring.  Over at verysheik, Oday Imad abd al-Jabbar Salim al-Ayoubi, a Detroit law student, posted Robert Duncan’s poem “Often I am Permitted to Return to a Meadow.”  He was inspired to post the poem by attending property class, which he reports has “thoroughly deromanticize[d] any Wordworthian notions I had about land.”  Ah, take heart.  The tools we learn in property can help people improve their surroundings and their lives.  But it does sounds as thought it’s that time to wheel out the old lecture on images of property in landscape art.  Or at least to think about the Beatles and property law.

Thanks to our friends over at pdphoto.org for providing the public domain image of the Yosemite meadow.

Property Blogs

Over at 3L Epiphany, Ian Best has put together a great taxonomy of law blogs.  The taxonomy includes a useful listing of property law blogs.

Ben Barros

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Broken Trust

Continuing on the theme of recent literature on property, I'd like to talk about a great book that has just appeared: Broken Trust: Greed, Mismanagement, and Political Manipulation at America's Largest Trust, by Judge Samuel P. King and Professor Randall Roth.  Of course, I'm coming late to this discussion, because Gerry Beyer and Paul Caron have already praised Broken Trust.

This is a story of epic battle, of the power of charitable trust, of political corruption, and redemption.  In short, of life itself.  And you and your wills students will love it.  Where to begin?  Perhaps with the establishment of the trust by Princess Bernice Pauahi Bishop's will in 1884.  She placed  her property in trust for a school to benefit the children of Hawai‘i: the Kamehameha Schools.  You may have seen discussion of the Kamehameha Schools recently, because the ninth circuit's rehearing en banc a lawsuit challenging their admissions policy.

Property professors will recall that it was this trust's ownership of about one-ninth of the land in Hawaii that led to the passage of the Hawaiian Homes Act in 1969, which led in turn to Hawaii Housing Authority v. Midkiff.  And after the Bishop Trust (though its trustee, Edward Midkiff) lost, they ended up with a huge portfolio--in excess of two billion dollars.  (Little bit of interesting history here--when the trust was established in 1884, its holdings of about 380,000 acres were worth about $470.000.  Talk about a good investment.)  After the trust was forced to sell land, it ended up with lots of cash.  That led in turn to all sorts of problems, as the trustees--who operated under no meaningful oversight--began receiving nearly one million dollars a year in trustee fees and operating the trust as their own fiefdom.

Couple of things that are interesting to property scholars here: the way the case against the trust was pieced together.  There were some lawsuits involving the trust.  Check out this self-dealing: one trustee represented a golf club near Washington, D.C., when it purchased property FROM THE TRUST.  That impropriety might have remained unknown, except that the transaction ended up in litigation.  In another case, trustees invested the trusts (as well as their own money) in an oil exploration project, without disclosing their investments to other trustees.  Again, litigation led to the disclosure of that.

Then there's the story of the way that increasing pressure, from members of community (including University of Hawaii Law Professor Randall Roth) who investigated and reported on the abuses led to reform.  They worked in conjunction with members of the community to bring down the trustees.  The attorney general became involved, so did the IRS.  It's a story about arrogance and self-dealing and an optimistic story of integrity, too--on the part of teachers, who were subject to dismissal, students, and other members of the community.  Those brave souls brought about important reforms of the trust; Professor Roth in particular is my hero, for having the courage to take on the trust, despite the risk of political and other consequences.

It's absurdly hard to write a book about trusts that is exciting, but Randall Roth and Judge King have done just that.  And some of your favorite wills scholars--Edward Halbach and John Langbein-- make appearances, too.  I  highly recommend it to you and to your students; it's well worth assigning to your wills class.  And I hope you'll add it to your summer reading list.  You'll enjoy it--trust me on this one.

Serkin on Levels of Government and the Takings Clause

Christopher Serkin (Brooklyn Law School) has posted Big Differences For Small Governments: Local Governments and the Takings Clause on SSRN.  Here's the abstract:

This Article argues that the Fifth Amendment’s Takings Clause should apply differently to local governments than to higher levels of government. The Takings Clause is at the heart an increasingly contentious property rights debate. On one side are property-rights advocates who argue for expanding government liability for takings of private property. On the other are proponents of deference to government regulation. More often than not, the terms of the debate have focused on a traditional economic account of the Takings Clause. Property-rights advocates argue that expanding the compensation requirement is necessary to force the government to internalize the costs of its actions, ensuring that regulations will occur only where benefits exceed costs. Others, however, argue that governments respond to political and not monetary costs so that a compensation requirement will not influence government decision-making in any predictable way. Public choice theorists, in particular, argue that regulations are more likely to result from special interest group rent-seeking, while costs are passed on to taxpayers generally. Where the public choice theory critique applies, compensation will not serve as a meaningful check on regulatory incentives.

This Article argues that the strength of the public choice critique rises and falls with the level of government. Local governments are largely majoritarian and specifically responsive to local homeowners. Because local governments also receive most of their revenue from local property taxes, forcing local governments to compensate under the Takings Clause will, in fact, force them to internalize the costs of their actions. However, local governments’ regulatory incentives are subject to their own specific distortions. Local governments are risk averse so that the prospect of a large takings judgment may over-deter them from acting. Local government regulations also tend to impose significant positive and negative externalities on neighboring communities. This Article therefore proposes (1) ratcheting down compensation for takings by local governments to account for their risk aversion, and (2) creating a form of inter-governmental liability to allow local governments to capture the positive externalities of their actions and force them to pay for the negative externalities.

Ben Barros

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Bourgeois Nightmares: Suburbia, 1870-1930

One of the things that I'm hoping to do a little bit during my guest stint here is to comment on recent property scholarship, particularly monographs.  I've already  commented some on Lindsay Robertson's important book on Johnson v. McIntosh, Conquest by Law.

I urge you to check out Robert Fogelson's Bourgeois Nightmares: Suburbia, 1870-1930, which has just appeared from Yale University Press.  It's already scooped up some good reviews--and particularly look for Laura Underkuffer's exceptionally thoughtful review coming to the Law and History Review.

Property professors will be particularly interested in this because Fogelson uses restrictive covenants as a gauge of what Americans wanted.  What a brilliant way to read those nearly ubiquitious sources.  Of course, racially restrictive covenants have a lot to say about Americans' attitudes towards property and neighbors.  Fogelson makes ample use of those sources; and he uncovers that it wasn't just African Americans who were unwelcome.  Other racial and religious groups were unwelcome in some housing developments--Jews, Catholics, Greeks, Italians, Irish, Asians.  But there's more the in covenants, like the size of houses, the absence of stores, the size of lots.  In short, how people will live.

This one is worth a read this summer.  And I think some of your students will like this one, too.

Alfred L. Brophy

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Federalist Society Intellectual Property Conference

The Federalist Society is organizing a conference on Intellectual Property:  Back to Basics in Washington D.C. on May 17:

10:00 a.m. - 11:45 a.m.
Panel One: By Any Other Name: Intellectual Property as "Property"

Is intellectual property really "property?" The property label has become controversial in modern scholarship and policy debates. Some contend that copyright and patent law should be about innovation policy, not property rights. They view patents and copyrights as a necessary evil provided to encourage progress in the arts and sciences. In this view, there is no inherent justification for the rights of intellectual property owners; they are wholly contingent on the social good they produce. Others view the concept of property far more expansively, and they see intellectual property as a key component of individual liberty, justified by ownership of one's own person and labor. These opposing views lead to very different understandings of intellectual property.

This panel will focus on the philosophical and practical implications of intellectual property as property. Is intellectual property best treated as cultural and innovation policy or as a private property right? Are intellectual property rights morally justified by the owner's right to life and liberty? Does intellectual property only impose on other liberties, or does it in fact support and defend them? How can property doctrines and policies strike a balance between owners' rights and the public interest? This panel will present several differing perspectives on these questions, examining how they apply to patents, copyrights, trademarks, and other forms of intellectual property.

12:00 noon - 1:45 p.m.
Panel Two: Modern Intellectual Property Rights: Unprecedented Growth or Unprecedented Erosion?

Are intellectual property rights stronger than ever or are they under unprecedented attack? Conventional wisdom is of two minds. Intellectual property owners contend that intellectual property rights are threatened like never before. On the other hand, critics believe that intellectual property rights have grown to an unprecedented and unhealthy degree. Most agree that intellectual property rights should encompass a balance between private rights and the public interest, but there are starkly different views as to whether the balance is tipping the right way. For example, some object to the use of antitrust law to overcome intellectual property rights held by large corporations, while others say it has not gone far enough. Many assert that governments should use compulsory licensing of patents and other intellectual property rights to correct perceived market failures. Some open source and free software advocates contend that governments should favor open source software over market-based models of software development. How should policymakers balance intellectual property rights with market considerations? With the public good? Are we striking the right balance or are we failing?

Confirmed Participants to Date Include:

Prof. Wendy Gordon, Boston University School of Law
Prof. F. Scott Keiff, Associate Professor, Washington University School of Law and National Fellow, Hoover Institution, Stanford University
Prof. Adam Mossoff, Michigan State University School of Law
Prof. Mark Schultz, Southern Illinois University School of Law
Ms. Gigi B. Sohn, President and Co-Founder, Public Knowledge

Ben Barros

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Maybe Vulcan Jurisprudence Really Is A Cultural Meme

On the subject of Al's most recent post and another post from last fall, Legal Affairs has a review of a book on Star Trek jurisprudence.  Hat tip:  Ilya Somin at the VC.

Ben Barros

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Vulcan Jurisprudence

File this one under: a new phrase I learned in class this week.

First, I am not now, nor have I ever been, a fan of Star Trek. Somewhere in my very distant past I recall seeing an episode where a creature was trying to protect its young or its nest or something from miners and, as I recall, it was blasted into oblivion.  Perhaps that was social commentary; not sure, but that did it for me.  (And maybe I’m wrong about the plot–-the important point here is not the plot of the show but how I interpreted and remember it.)  Nor have I spent much time with the various work on the jurisprudence of Star Trek (or here) and what Legal Affairs terms “Enterprising Scholarship.” (Ha, ha). 

So when we were talking today on Monday about zoning and Ryan Markham wondered about the appropriateness of extending the police power into something that looks like “Vulcan Jurisprudence,” I was puzzled.  Now, I’m familiar with Judge Janice Rogers Brown's “Whiter Shade of Pale” speech, which discusses what might be termed "Whiter Shade of Pale Jurisprudence." I’m working on a post I’m going to call “Aloha Jurisprudence.”  And I might do something on "Twilight Zone Jurisprudence" at some point.  But "Vulcan Jurisprudence" was a new one to me.

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Somin and Adler on the Green Costs of Kelo

Ilya Somin (George Mason University - School of Law) and Jonathan Adler (Case Western Reserve University School of Law) have posted The Green Costs of Kelo: Economic Development Takings and Environmental Protection  on SSRN.  Here's the abstract:

This Article is the first academic paper to systematically consider the environmental impact of the Supreme Court’s decision in Kelo v. City of New London and of economic development condemnations more generally. Kelo upheld “economic development” takings - condemnations that transfer property from one private owner to another solely on the ground that doing so might improve the local economy or increase tax revenue. The decision stands in sharp contrast to the Michigan Supreme Court’s ruling in County of Wayne v. Hathcock, which forbade the use of eminent domain for economic development.

Part I briefly explains the rationales of the Kelo and Hathcock decisions and shows why a Hathcock-like ban on economic development takings is highly unlikely to impede environmental regulation or the use of eminent domain for legitimate conservation purposes. This doctrinal point is buttressed by empirical evidence indicating that none of the nine states with judicial bans on economic development takings have ever used such a ban to strike down the use of eminent domain for environmental or conservation purposes. Part II shows that economic development takings actually threaten environmental harm. Allowing the use of eminent domain for economic development poses a particular threat to private conservation lands and open space. Because land owned by conservation nonprofits produces few economic benefits and does not contribute to tax revenue, it is likely to be targeted by developers and local governments that use eminent domain to advance their development interests. Economic development takings can also damage the environment by promoting environmentally harmful development, undermining property rights, and furthering dubious development plans that sap community wealth and reduce resources available for environmental protection. In many situations, economic development takings end up giving us the worst of both worlds: they cause environmental harm and reduce economic growth by transferring land to inefficient development projects.

Somin also has a post on the article over at the VC.  If you have a comment on the article, please leave it at the VC, rather than here.

View all takings posts

Ben Barros

Bernard Siegen (1924-2006)

Thanks to How Appealing, I learned last week of Bernard Siegen's death.  Siegen was an emeritus professor at the University San Diego.  His obituary in the LA Times is here, which has a little more about him as a person than the one in the New York Times.  Both are great reading.  Here's a taste of the LA Times editorial:

"This was an unlikely firebrand," said Richard A. Epstein, a University of Chicago law professor. "What made Bernie such an important figure was that his legal instincts were very good."

Siegan's strongly held conviction — that economic freedoms deserved the same protections as the freedoms of speech, religion and the press — went "very much against conventional wisdom in the 1970s," said Maimon Schwarzschild, a fellow law professor at the University of San Diego.

It also made Siegan, a Libertarian, one of the key legal and constitutional thinkers in the movement of ideas that became the Reagan Revolution, according to Schwarzschild. . . .

A 1980 book by Siegan, "Economic Liberties and the Constitution," was "the opening salvo" in the revival of the property-rights movement, said Epstein . . . .

David Bernstein has posted about Professor Siegen's impact over at Volokh; the obituary in the National Review On-Line is similar.  Propertyprof readers may be familiar with his Economic Liberties and the Constitution (University of Chicago, 1980).  I'm most familiar with Property Rights: From Magna Carta to the Fourteenth Amendment (Transaction 2001).  You may also remember that he was nominated to the United States Court of Appeals by President Reagan.

Alfred L. Brophy

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Antiquities Property and Law

There have been a few articles recently on antiquities.  The Washington Post has been following the dispute over antiquities taken by Yale University Professor Hiram Bingham from Peru in the early part of the twentieth century.  The short version of this long story is that Peru wants the art back from Yale University’s Peabody Museum, which launched a major exhibit on them recently. The story goes back to 1911 when Hiram Bingham first visited Machu Picchu:

Bingham, an obscure 35-year-old adjunct professor until that July morning in 1911, was at the beginning of a great public career that would make Indiana Jones jealous: explorer, World War I aviator, author, governor of Connecticut, U.S. senator. . . . .

He may have cut a Hollywood-perfect image as an explorer, with exploits seemingly ripped from a script, but he was no tomb raider. The irony at the bottom of this ruckus is that 95 years ago, Bingham, Yale, National Geographic and Peru appeared to recognize the inherently unequal and morally fraught relationship between bankrolled explorers and bankrupt peoples.

They tried to do something about it: Laws were passed, words were inked, in hopes that 95 years later there wouldn't be a dispute over who owned what. That didn't work out so well.

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