PropertyProf Blog

Ball on Nuisance and Takings

Carlos A. Ball (Pennsylvania State University - The Dickinson School of Law) has posted The Curious Intersection of Nuisance and Takings Law on SSRN.  Here's the abstract:

Whenever the government operates a facility in a way that negativelly affects the property interests of nearby owners, the question arises whether it has effected a taking. This is especially the case in instances in which the government’s land use constitutes a nuisance. This Article explores the issue of when a nuisance ripens into a taking. The Article argues that when it is alleged that the government has effected a taking through its own land use, courts should employ a form of review that is more exacting than that applied in regulatory takings cases but that falls short of the categorical rule applied in physical invasion cases. In doing so, the Article focuses on both the magnitude of the harm, as well as the degree of its distribution among property owners, which accompanies intensive governmental land uses. The Article seeks to show how takings law can promote a greater degree of fairness when the government chooses sites for facilities that create significant negative externalities. The analysis will help property owners who have borne a disproportionate share of those externalities, including owners in poor and minority communities whose unequal treatment in this regard has given rise to the environmental justice movement.

Ben Barros

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Pence and Bucks on Homeowners' Knowledge of Home Value and Mortgage Terms

Karen M. Pence ande Brian Bucks (Board of Governors of the Federal Reserve) have posted Do Homeowners Know Their House Values and Mortgage Terms? on SSRN.  Here's the abstract:

To assess whether homeowners know their house values and mortgage terms, we compare the distributions of these variables in the household-reported 2001 Survey of Consumer Finances (SCF) to the distributions in lender-reported data. We also examine the share of SCF respondents who report not knowing these variables. We find that most homeowners appear to report their house values and broad mortgage terms reasonably accurately. Some adjustable-rate mortgage borrowers, though, and especially those with below-median income, appear to underestimate or not know how much their interest rates could change.

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

2. (171) 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. (155) The 'Backlash' So Far: Will Citizens Get Meaningful Eminent Domain Reform?, Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project)

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

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

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

7. (78) Property Law, Dean Lueck and Thomas J. Miceli (University of Arizona, University of Connecticut - Department of Economics)

8. (58) Private Order and Public Justice: Kant and Rawls, Arthur Ripstein (Faculty of Law, University of Toronto)

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

10. (57) Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and other Tales from the Supreme Court, Marcilynn A. Burke (University of Houston - Law Center)

Ben Barros

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Paulsen and the West Wing

Thanks to Kurt Paulsen for the post immediately below on Takings and the West Wing.  Regular readers will remember Kurt from last year's sprawl fest.

Ben Barros

The West Wing, The Takings Clause and Tom Merrill

[An UPDATE to this post is available here]

What is the ultimate honor for a law professor?  Publishing in Harvard or Yale Law Review? Having your article cited in a SCOTUS decision? 

Nah. Its being mentioned on the West Wing.  Astute watchers of the show may recall in season 5, during a constitutional crisis regarding Presidential succession, that Yale Prof Akhil Amar was mentioned.

On Sunday’s episode, former White House Communications Director Toby Ziegler, in talking to Chief of Staff C.J. Cregg, claims to have discovered a typo in the Constitution in the Takings Clause – specifically a missing comma.  He says the National Archives can’t explain whether it is a comma or a smudge.  Toby then indicates he has put in a call to Tom Merrill.  Paul Boudreaux had some thoughts on this earlier in the week at the Land Use Law Profs Blog.

Tom Merrill, of course, is a noted Takings Clause expert at Columbia Law School. 

The reference to the Takings Clause, a missing comma and Tom Merrill is either too cute by half or an indication that some script writer is really paying attention. 

In his September 20, 2005 testimony before the Senate Judiciary Committee regarding the Kelo v. New London decision, Prof. Merrill repeats his somewhat unique interpretation of the Takings Clause – an interpretation which could be said to rest on a “missing comma.”

In relevant part, discussing the myths of Kelo, Prof. Merrill argues:  “Myth Four: The original understanding of the Takings Clause limits the use of eminent domain to cases of government ownership or public access … Unfortunately, other than the language of the Takings Clause itself (“nor shall private property be taken for public use without just compensation”), there is virtually no direct evidence about what the Framers understood by the words “for public use.” The phrase modifies “taken,” and thus clearly establishes that the Takings Clause is about a subset of takings – those for public use as opposed to other possible types of takings. But this narrowing language does not necessarily mean that the Clause imposes an affirmative requirement that a taking must be for a “public use.” It is also possible that the Framers were simply describing the type of taking for which just compensation must be given – a taking of property by eminent domain as opposed to some other type of taking, such as a taking by tort or taxation.”

This testimony is almost identical to Prof. Merrill’s Amicus brief on behalf of the American Planning Association (at p. 4.).  In his Amicus, Prof. Merrill acknowledges that his “only a subset of takings” is not accepted as a general interpretation: “Nevertheless, “for public use” has been read throughout our history as imposing an implied limitation on the exercise of eminent domain – that it can be used only for public and not private uses – and this Court has accepted this interpretation. Brown v. Legal Found. of Washington, 538 U.S. 216, 231-32 (2003); Thompson v. Consol. Gas Utils. Corp., 300 U.S. 55, 80 (1937).” (Amicus brief  at p.4)

So perhaps the writers of the West Wing episode read and understand Prof. Merrill’s position and so wrote him into the show.  One could read Prof. Merrill’s position as “the case of the missing comma.”  Certainly, arguments made from the peculiar (to modern sensibilities) grammatical structure of the Constitution are nothing new.  Modern readers frequently find the usage of commas – or the lack thereof – to be quite strange. 

Where is Toby Ziegler’s “missing comma” under a Merrill-type theory?  It probably should be the lack of 2 commas surrounding “for public use.”   In official versions of the constitution, the Takings Clause reads: “nor shall private property be taken for public use without just compensation.”  No commas in the original.  With the supposed “missing commas” it would read: “nor shall private property be taken, for public use, without just compensation.” 

Can we read Prof. Merrill’s argument as saying that since the original does not include the two commas around “for public use” that “for public use” does not constitute a separate constraint on the government’s eminent domain power?

Kurt Paulsen

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Teaching Land Use and Takings In First Year Property

Several times this spring I was struck by the thought that my students would get a lot more out of the land use and takings material that I cover in first year property if they had already taken constitutional law.  I noticed myself spending a lot of time explaining the strict/intermediate/rational basis levels of scrutiny (e.g., in discussing Belle Terre v. Boraas), which would be second nature to anyone who has taken con law.  I don't think that a student can really appreciate Euclid without having a decent grounding in economic substantive due process.  Ladue v. Gilleo is a first amendment case that among other things raises the distinction between commercial and political speech.  Mount Laurel is based on state constitutional law, but discussion of the case would be richer if the students had read the Supreme Court's major equal protection cases.  Indeed, almost every issue in zoning law, from unconstitutional delegation of legislative power in special exception cases to amortization issues presented by pre-existing nonconforming uses, is a con law issue.  Takings, of course, is entirely a con law issue.

This got me to thinking about moving this part of property to an upper-level required course that would be offered after con law.  But then I started wondering why this material should be required at all, rather than be left to an upper-level elective land use class.  Land use and takings issues are incredibly fun to teach, but this in itself doesn't seem like a good reason to include the material in first-year property.  So why should we include land use and takings in the first year property curriculum?

Ben Barros

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Blood and Roses

This week's New York Times Book Review has a piece by Megan Marshall on Helen Castor's new book Blood and Roses.  The book, based on 15th century documents known as the Paston letters, looks fascinating.  Here's an excerpt from the review highlighting the parts that would be of interest to property profs:

[Castor] begins by describing a "post-plague world" in which England's population was so drastically reduced by the Black Death that class boundaries broke down in the face of a major land grab, barely held in check by an already Dickensian legal system. A "parvenu gentry" emerged, made up of men like William Paston, who trained as a lawyer and used his skills to acquire an impressive fortune.

This all might sound tame, but property ownership in 15th-century England entailed risks we can hardly imagine today. Another man angling for the same estate, which generally came with income in rent from tenant farmers, could lob a flimsy title claim into court, then gather a small army of supporters and wrest the property from a rightful owner, holding the place for years as the wheels of justice ineffectually spun. Time and again this happened to the Pastons, and Castor's accounts of these skirmishes are as entertaining as a chapter from "Middlemarch" — with bloodshed.

Ben Barros

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Yau on Compensating Sources of Body Parts

Jo-Anne Yau has posted Stealing What's Free: Exploring Compensation to Body Parts Sources for Their Contribution to Profitable Biomedical Research on the BePress Legal Repository.  Here is the abstract:

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as a result of his contribution. This article will address the subtle movements in the law toward Source compensation and the Constitutional soundness of this practice.

Furthermore, public policy discussions, ethical implications, and comparisons with other socially embraced practices will highlight variations on Source compensation are already prevalent in society, and demonstrate that the concept is not so foreign after all.

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

2. (162) 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. (142) The Tragedy of the Commons and the Myth of a Private Property Solution, Amy Sinden (Temple University - James E. Beasley School of Law)

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

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

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

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

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

9. (50) Footloose at Fifty: An Introduction to the Tiebout Anniversary Essays, William A. Fischel (Dartmouth College - Department of Economics)

10. (49) Private Order and Public Justice: Kant and Rawls, Arthur Ripstein (Faculty of Law, University of Toronto)

Ben Barros

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Enjoyed The Semester and Good Luck to My Students

Well, later today my property students at the University of Hawaii are going to take their final exam.  That means, also, that I’m about to leave Honolulu to return to Tuscaloosa and you won't be hearing much from me for a while, while I move and grade.

I’ve thoroughly enjoyed teaching here this semester.  I don’t think I’ve ever enjoyed teaching a property class more (though I sure have some fond memories of property classes past in Tuscaloosa and Boston and Oklahoma City, too) and I’ve learned much from this crowd as well.  In part because one of their beloved classmates, Augusto Camara, died part way through the semester, I learned a lot about community spirit and how to deal with trying times from them.  (My tribute to "Goose," about images of property in Hawaiian landscape art is here.)  I also learned to think differently about issues of property and equity, especially about cultural property (and here).

I really enjoyed talking about aloha jurisprudence with them.  They were kind enough to indulge some of my talk of cemetery law.  Of course, the students taught me about “Vulcan jurisprudence” and alerted me to some great news items about the conversion of an elevated rail to a park in New York City and the breakdown of democracy (so it seems) in Vernon, California. 

I also had a wonderful time getting to know colleagues at the University of Hawaii Law School; in particular Randy Roth (you need to read his great book, Broken Trust) and David Callies (among other work propertyprof readers will enjoy is his recent book from Cambridge University Press, The Role of Customary Law in Sustainable Development) and Carl Christensen (aka lawyer for the dispossessed and all around mensch) have helped me learn a lot about property law in the Pacific.  Deans Aviam Soifer and Carol Mon Lee are running a great school, with a terrific faculty and student body.  I highly recommend this place to you for law school if you’re a student (or if you’re a faculty member, spend a semester or a summer teaching out here).  Of course, the University of Alabama’s a great place to learn about property, too.

I also had the chance to read some about the history of property in Hawaii.  I’ve posted a little about this already–-on the decline in surfing because of the rise of the market economy in the early nineteenth century and sacred sites of Oahu.  This summer I hope to talk some about missionaries’ ideas about property law and some great books I’ve been reading, including Marshall Sahlins, Anahulu: The Anthropology of History in the Kingdom of Hawaii, Sally Merry’s Colonizing Hawai'i, Lilikala Kame'Eleihiwa's Native Lands, Foreign Desires, Stuart Banner's How the Indians Lost Their Land, and David Stannard’s Honor Killing (not about property but terrific–and I do mean terrific--legal history).

So I wish my students all the best of luck on their exam and in the rest of their careers.  I’ll be back to doing some propertyprof postings when I’ve made some progress on grading.  And then I'll be talking some about property in Alabama.  I may start with one of my favorite archaeological sites, Moundville (description here).

Al Brophy
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Rankings of Law Journals: The View from the Customer (i.e., Author)

This is a post about some data I'm interested in seeing.  I've been following the discussion of bepress vs. ssrn over at prawfsblawg and orinkerr.  And that, in addition to a question from a reader about what I make of the bepress list of 100 most popular reviews, has caused me to do a little searching around the bepress website.  They're the folks who run ExpressO, which is a service that will (for a pretty modest fee) submit your article to a bunch of law reviews.

Comments I've seen on the web (like Dave Hoffman's quick study) and conversations I've had with colleagues at the University of Hawaii this semester and friends at other schools suggests that people are increasingly using ExpressO.  Sure makes life easy to pay someone a few hundred dollars (preferably from your expensive account) rather than mailing or even emailing a bunch of journals on your own.  I'm sort of old fashioned (and notoriously cheap) so I tend to do this on my own.  Maybe that's not such a hot idea.  I'd be interested in hearing what propertyprof readers think.  So if you're an author: ExpressO or Express-No, as my colleague Dan Filler asked earlier this year.

I did, however, find some interesting statements on the bepress website, which I think are important to users of ExpressO (that is, authors and law reviews that receive their submissions).  In addressing law review editors, ExpressO is trying to get them to use their service.  They make the revealing--and I think true--statement that "Law reviews not on the delivery route run the risk of being overlooked."  If you're a law review editor, I think it's a mistake to turn down submissions--you probably ought to take them via email, US Postal service, ExpressO, courier--any method that gets the manuscript in your hands.  Law reviews should not be turning away good manuscripts.

Here's the data I'd really be interested in, if I were a law review editor:

ExpressO provides useful statistics such as the median number of submission for other law reviews in your subject area, where your law review ranks in volume, and to what other law reviews your authors typically submit.

Now that's some data I'd like to see.  It has the potential to tell a lot about what authors think about different journals.  Of course, it's only useful to the extent that representative people are using ExpressO and in a way that is representative of their submission patterns.  There's some reason for thinking that the submissions through ExpressO aren't quite representative of the submissions process in general.  Why do I say this?  Take a look at this table, which lists (it seems) the 100 most popular law reviews based on submissions through ExpressO.  It's called the "100 most popular general student law reviews."  Hmm.  Wisconsin is number 1, Stanford is number 42, Columbia is number 45, Harvard is number 57, Yale is number 60.  Wisconsin's a very, very fine journal; I enjoy reading their articles (including their recent symposium on the New Legal Realism) and I'd be honored to publish with them.  But most popular in terms of submissions?  In terms of recent citations by journals, they're behind 37 other strong performers, like the Houston Law Review.

Don't Overlook Ranking Law Reviews by Citations
I think it makes more sense to focus on issues like law review citation rankings and the US News reputation rank of the review's parent institution.  I have a paper on that here--and the executive summary here.

There's a lot of useful information at the ExpressO website, including a number of tips on submitting to law reviews (here, here, here, and here).  Some of the advice is to move towards summer submissions for at least some reviews and towards submitting later in the fall for some.  Important, if true.

Alfred L. Brophy
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T-Rex in Property and Contract Classes

Over at concurring opinions Miriam Cherry has a delightful post on a Tyrannosaurus Rex, which was found in North Dakota in 1990 and became the subject of a lawsuit between the people who found it, the owner of the property where she was found, the Cheyenne River Sioux tribe, and the federal government.  The post is based on her article, which discusses how one might use the case to teach contract defenses.  The fossil is now at the Field Museum in Chicago.

Dana G. Jim also has a very nice article on how one might use the case in  property in the St. Louis University Law Review back in 2002.  Dana occupies a very warm spot in my heart, because he got me started working on the Tulsa riot 'lo those many years ago--and because he encouraged me to think about ways to introduce issues of race into property class (and thus make the class more relevant and accessible to students from diverse backgrounds).

I highly recommend Miriam's post, her article, and Dana's article (available to Hein On Line subscribers), too.  Both Miriam's and Dana's articles are important steps down the road of seriously rethinking what's taught in the first year and how we teach it.  This is a topic propertyprofs will talk a lot about, I hope.  I'll be interested in seeing where the property course goes and what cases we're going to add (in addition to statutes and drafting and negotiation material, too).

Al Brophy

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Foster on The City as an Ecological Space

Sheila Foster (Fordham Law School) has posted The City as an Ecological Space: Social Capital and Urban Land Use on SSRN.  Here's the abstract:

The notion that certain uses of public and private property can have negative effects beyond legally defined property boundaries is firmly embedded in land use law. We are now comfortable regulating land use to prevent and control for impacts to our natural resources, environmental quality, and nuisances to third parties. This idea is partly rooted in economic theory - i.e. the existence of negative externalities, but also in the theory of ecology - i.e. the notion that property is inextricably part of a network of social and economic relationships and that its impacts traverse legally defined property boundaries. But not all impacts, or costs, of land use are properly accounted for in land use regulation. This Article highlights a category of social costs that remain largely exogenous to the norms underlying our system of land use controls. Scholars from a variety of disciplines recognize the importance of social capital to, and the deleterious impacts from its loss on, urban communities. Yet legal scholars have not taken seriously social capital when normatively evaluating urban land use regulation and policy. This Article argues that the failure to account seriously for the ways that land use decisions interact with social capital, particularly in the most socially vulnerable communities, underlies many contemporary disputes involving the persistent fragmentation and social inequities of urban metropolitan space. The Article concludes by suggesting that only through a rethinking of the city commons can we begin to take social capital seriously in land use policy and law. Instead of conceptualizing the city as an aggregation of private property rights, we should instead seek to identify and protect common resources and interests in the city commons through limited access rights and collaborative governance strategies that preserve and draw upon existing social networks to manage common city resources.

Ben Barros

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Norms of Dress, the Market, and the Decline of Surfing, with special relation to the trade in Sandalwood

So here's something you probably never thought you'd see talked about: changes in surfing in the nineteenth century, which were inspired in part by the rise of the market economy in Hawaii and in part by norms of dress driven by Christian missionaries. 

In the process of working on a paper on missionaries' ideas about property law, I've been reading Hiram Bingham's memoirs, A Residence of Twenty-One Years in the Sandwich Islands. (Dedicated propertyprof readers will recall that Mr. Bingham's grandson, Hiram Bingham III, is at the center of the controversy between Peru and Yale on treasures taken from Machu Picchu in the early part of the twentieth century.)  I came across this description of surfing:

The royal parties . . . resorted to the favorite amusement of all classes--sporting on the surf, in which they distinguish themselves from most other nations. In this exercise, they generally avail themselves of the surf-board, an instrument manufactured by themselves for the purpose. it is made of buoyant wood ' thin at the edges and ends, but of considerable thickness in the middle, smooth, and ingeniously adapted to the purpose of sustaining a moderate weight and gliding rapidly on the surface of the water.

Continue reading

Latest on the Dispute Over 83 Hawaiian Cultural Objects (aka “Forbes Collection”)

The Honolulu Advertiser has the latest on the dispute over cultural objects valued at $10 million, taken from the Kawaihae Caves on the Island of Hawaii in 1905.  The objects (some believe they are funerary artifacts) were in the Bishop Museum’s collection until they were loaned in 1990 to the Native Hawaiian group Hui Malama I Na Kupuna o Hawai'i Nei.  Subsequently, Hui Malama was sued by the Bishop Museum and two Hawaiian groups, which claimed an interest in the artifacts under the Native American Graves Repatriation Act.  Hui Malama members are refusing to say where the artifacts are, but they may be back in the cave.  And a leader of Hui Malama spent time in a federal detention center for refusing to disclose the whereabouts of the items.  (Hui Malama was formed in the late 1980s during a dispute over the location of a Ritz Carlton Hotel on Maui, which was to be located on top of an ancient cemetery.  Further evidence of the importance of cemetery law.)

It’s an intriguing case and worth the read; much to talk about here, as with the Elgin Marbles and with sacred sites throughout Oahu.  Makes me think there's still a lot to be written on the Native American Graves Repatriation Act and its implications.

Endnotes:  As usual, my thanks to my colleague Carl Christensen for talking this up.  And if you'd like to see a picture of one of the items, click here.  The picture is from this Honolulu Advertiser story from January of this year.

Alfred Brophy
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Ball and Reynolds on Exactions and Burden Distribution

Carlos A. Ball (Pennsylvania State University - The Dickinson School of Law) and Laurie Reynolds (University of Illinois) have posted Exactions and Burden Distribution in Takings Law on SSRN. Here's the abstract:

In the last several decades, there has been a marked shift in local government financing away from the use of general revenue taxes and toward non-tax revenue raising devices such as exactions. We argue that the Supreme Court, in its exaction cases, missed a golden opportunity to slow this troubling trend toward the greater privatization of local government financing. In addition, we explain how the Court’s exaction cases are inconsistent with the goal of burden distribution as reflected in the Court’s takings jurisprudence. We propose that the constitutional standard applied to exactions be reformulated so as to account explicitly for burden distribution. Such a reformulation will make exactions law more consistent with the purposes of the Takings Clause and will constitute an important first step in restoring a more sensible balance between tax and non-tax revenue devices.

Ben Barros

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