PropertyProf Blog

Barros and Alito on Legal History Methodolgy

Been reading my employer's (Ben Barros') Nothing 'Errant' About It: The Berman and Midkiff Conference Notes and How the Supreme Court got to Kelo with Its Eyes Wide Open, which is up on ssrn.  I highly recommend it.  Ben has some pretty interesting moves in the paper.  He uses notes from the Justices' conferences in Berman and Midkiff to understand what the justices thought they were doing.  Dedicated propertyprof readers have already seen some of Ben's thoughts on parts of this.

As an approach to legal history, reading judges' papers has much to recommend it.  Barros goes a little beyond, I think, purely legal history questions: he's interested not just in what the justices thought they were doing.  He's interested in how that might affect our thinking in subsequent cases.  And his paper suggests that Kelo's in line with Berman and Midkiff.

So here's where I see Barros and Alito overlapping in methodology.  Alito's Note in the Yale Law Journal took a similar approach.  Alito read the justices' notes in the "released time" cases (separation clause challenges to schools' giving release time to students to attend religious instruction).  Alito had, I thought, a very fine reconstruction of what the justices thought they were doing.  And it was more limited than how subsequent cases interpreted what the justices thought they were doing.  From that, I read Alito as suggesting that subsequent interpretations of those cases ought to be limited.  Pretty interesting methodology for reading precedent, actually: we should go behind what the justices wrote to further limit their opinions.  (Barros and Alito depart on outcome, because Barros says that Kelo's in line with previous cases.)

I thought when I read Alito's Note last December that it might get some play in his confirmation hearing, because I think that is a window into his thinking (at least as a student).  Pretty interesting to think that Alito was writing advocacy-oriented legal history (of a conservative kind, I think) at the same time that Robert Cover was writing advocacy-oriented legal history (of a more liberal, though not necessarily so) kind.  Alito published his Note in the same year that Cover published Justice Accused: Anti-Slavery and the Judicial Process.  Wow--lots of exciting ideas in circulation in New Haven in 1975.  I wonder what Laura Kalman would have to say about this?

Now, I'm a huge fan of student works; some of my most memorable and enjoyable moments are working with students on their notes.  And I've been real fortunate to supervise some terrific ones on property in the last few years, including Amy Wilson's on the jazz influence in property law (got to read it--I'm not going to give away the punchline); Kitty Rogers' on integrating the city of the dead (catchy title, eh?); Leah Green's on the Erie Canal in American legal thought; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law.  I'm skeptical of how much we can read into a student's jurisprudence, thought I think they may give us a sense of a person's thinking.

Now two closing questions: so, Ben, should we start calling Alito, Barrolito?  Or, perhaps, calling you Alitorros?

Endnote: As I was looking on the Library of Congress website for a public domain image to illustrate this post, I was surprised to see how many photographs there are of "blight" from the 1930s.  (The photograph I used here, for instance, was taken in 1935 and is of a apartment house that's been converted in a gas station.  Looks pretty nice to me, but it's described as blighted.)  No surprise that there are lots of photos from the 1930s, but what does surprise me is how many homes are defined as blighted.

Alfred L. Brophy

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Are Hohfeld's Fundamental Conceptions Useful?

One of Wesley Hohfeld's great contributions to legal theory was the observation that words like "rights" and "duties" can have many meanings.  To remedy this problem, Hohfeld proposed a series of correlative concepts that would more precisely define legal relationships – claim-rights and duties; privileges and no-rights; powers and liabilities; and immunities and disabilities.  Stephen Munzer noted that “Hohfeld’s vocabulary has no serious rival of its kind in intellectual clarity, rigor, and power,” and I have no reason to disagree.  I’ve been wondering, though, whether the level of detail provided by Hohfeld’s vocabulary is actually useful.  The initial point that the word “right” can have many meanings is an important one to keep in mind when considering all sorts of legal issues, and I’m all for precision in theoretical discussion.  But I don’t think I’ve ever seen a theoretical discussion where Hohfeld’s vocabulary really added that much.  Can anyone point me to one?

Ben Barros

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Lopez on Property Theory (Republicanism and Liberalism) and Kelo

Alberto Lopez of Northern Kentucky University has recently posted  Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo on ssrn.  It appeared in volume 41 of the Wake Forest Law Review. His abstract reads:

This article explores the public use and just compensation clauses through the lenses of the political philosophies that inform eminent domain and the Takings Clause -- republicanism and liberalism. The article begins with a description of the historical origins of republicanism and liberalism in eminent domain theory. Next, the article traces the jurisprudential evolutions of the Takings Clause's public use and just compensation requirements, which are the constitutional representations of republicanism and liberalism associated with eminent domain. After discussing the Court's decision in Kelo, the paper assesses the balance between republicanism and liberalism comprehended by eminent domain and the Takings Clause both pre- and post-Kelo. Kelo tips eminent domain's philosophical balance heavily in favor of republicanism. As a result, I argue for the inclusion of subjective harm in the just compensation equation, which heretofore has not figured into the just compensation calculus. The article concludes that including an individualized assessment of the subjective loss suffered by a property owner as a result of eminent domain increases the liberalism comprehended by the just compensation clause. As a result, eminent domain's balance of political philosophies moves closer to equipoise.

I had the pleasure of reading Lopez' article in draft and I highly recommend it to you.  It's a great exploration of issues of political theories of regulation of land use from the early national period through Kelo.  And, as other property scholars (like Gregory Alexander) have noted, the struggle in Kelo has deep historical roots.

Endnote: Edward Hopper's Haskell's House (1924) is from the website of our friends at the National Gallery.  I thought you'd enjoy a picture of a house that might be subject to taking.  Plus, I love the telephone pole in the front of Victorian.  What a combination of old and new.  Reminds me of the image of property in American and Hawaiian landscape art.

Alfred L. Brophy
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Busyness and sprawl and crime

In my experience, most people who discuss the relationship between urban decay and crime treat the relationship as a one-way street: city crime causes people to leave cities, period.

But in Nicole Garnett's review of Bruegmann's and Joel Kotkin's new books (posted on SSRN, and referred to in a post on this blog a few days ago) she suggests that lower urban densities might induce crime by making cities less "busy" and more deserted- and thus that (to oversimplify the point into a sound bite) that sprawl might even cause crime in a sense.

I'm not sure there's any way to prove or disprove the theory- but if the argument is verifiable, it certainly leads to some interesting results.

Let's go back to the 1930s, when the FHA started to bribe people to move to suburbs with mortgage subsidies and all levels of government were beginning to make suburban commutes easier through road-building.  A few people leave the (now safe) cities.  Over the next few decades, a few city neighborhoods here and there become less busy and thus more dangerous, and the most risk-averse people start to trickle out.  This causes neighborhoods to become even less busy and more dangerous which cause even more people start to trickle out, and eventually we have a vicious circle on our hands- a vicious circle that spirals out of control in the 60s (when for reasons unrelated to urban policy, crime increases everywhere in the United States).

And depopulation causes other problems that independently might increase crime.  A city without a large middle and upper class might support more lenient policing policies which in turn might lead to more crime - another respect in which sprawl (or more accurately, the type of sprawl that depopulates cities, as opposed to sprawl in growing regions where there is enough population growth to build up city and suburb alike) might increase urban crime.

Two caveats:

1.  All of this is pretty speculative.

2.  I think it is easy (but mistaken) to assume that crime is a problem that can be resolved solely through more enlightened city government.  Even if you assume for the sake of argument that the criminal justice system has a major effect on crime (as opposed to, say, liberal morality, economic inequality, or family breakdown), criminal justice is more of a federal and state responsibility than a local responsibility.  Cities may hire police, but states decide whether to build enough prisons to house the people arrested by city police, and both federal and state courts set the rules that decide how crowded those prisons can be and how easy it is to convict people arrested by the city police.   

Michael Lewyn

Is this really the end of Feudalism?

Following up on my post on Robert Palmer's English Law in the Age of the Black Death, I thought I'd post a little more on feudalism.  An island I’d never heard of, Sark, has just ended its “feudalism.”  (Listen to NPR's story here.) It is in the English Channel and is “owned by the Queen of England but not part of Great Britain.”  Whatever that means.  Anyway, the Parliament has consisted of forty Sark landowners.  Now, it’s coming to an end.  From here on out, there will be elections for the Parliament and 12 members will be landowners; 12 memebers will be non-owners.  What is the world coming to?  The Seigneur of Sark will maintain a few heredity rights–the right to keep the only unspayed dog on the island and the right to whatever washes up on the shore between the low and high watermark.

I seem to recall debate about whether feudalism ever existed, led by Susan Reynolds, Fiefs and Vassals. (Useful reviews here).  Sounds like there are some pretty interesting resonances on Sark with the anti-rent movement in the upstate New York in the 1830s-1860s.

Alfred L. Brophy

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more on Bruegmann

After a few weeks of being out of town, I got back to Bruegmann. One of his most widely publicized points is the universality of sprawl- the idea that because some rich people had country estates one or two or twenty centuries ago, the status quo is just fine. This argument rests on the assumption that if some sprawl is OK, lots of sprawl is even better.

But this kind of argument overlooks important differences of degree: every city may have some sprawling development, but not all cities are identical.

In the most sprawl-bound cities and metropolitan areas, most residents will be unable to get to classes, jobs or shops without driving, and carless residents are thus virtually helpless. For example, in Oklahoma City, a city with over 500,000 people, buses do not run at night or on Sundays, and thus the 8.2% of households without cars are essentially frozen out of jobs that require evening work.

And in cities planned around the automobile, streets are often so wide, and traffic moves so quickly, that the basic human act of walking outdoors becomes dangerous. Even residential streets are often dangerous for pedestrians due to the absence of sidewalks.

In such cities, most people need a car to function.

By contrast, less sprawling regions give residents a variety of transportation options. For example, the majority of New York City residents get to work via public transit, and the city has prosperous neighborhoods where most households own no cars. In metropolitan New York, transportation choice is not limited to city residents: New York City has some highly automobile-dependent suburbs, but also has two suburbs (Hoboken and Brownsville) where a majority of commuters use public transit regularly. In other words, New York, to a greater extent than other American cities, accommodates both consumer preferences for automobile-dependent sprawl and consumer preferences for less automobile-dependent lives.

So how much sprawl is too much? And how do you define "too much" sprawl?

It seems to me that if you need a car to live in a place, that place has too much sprawl- because at that point sprawl becomes not a result of consumer choice but a burden on consumer choice, freezing people who (for one reason or another) can't drive out of civic life, and imposing huge costs on people who can.

Michael Lewyn

Executive Order on Public Use

File this one under "empty political posturing."  On Friday, President Bush signed the following executive order:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:

Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

Sec. 2. Implementation. (a) The Attorney General shall:

(i) issue instructions to the heads of departments and agencies to implement the policy set forth in section 1 of this order; and

(ii) monitor takings by departments and agencies for compliance with the policy set forth in section 1 of this order.

(b) Heads of departments and agencies shall, to the extent permitted by law:

(i) comply with instructions issued under subsection (a)(i); and

(ii) provide to the Attorney General such information as the Attorney General determines necessary to carry out subsection (a)(ii).

Sec. 3. Specific Exclusions. Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of:

(a) public ownership or exclusive use of the property by the public, such as for a public medical facility, roadway, park, forest, governmental office building, or military reservation;

(b) projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity;

c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right;

(d) preventing or mitigating a harmful use of land that constitutes a threat to public health, safety, or the environment;

(e) acquiring abandoned property;

(f) quieting title to real property;

(g) acquiring ownership or use by a public utility;

(h) facilitating the disposal or exchange of Federal property; or

(i) meeting military, law enforcement, public safety, public transportation, or public health emergencies.

Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(c) This order shall be implemented in a manner consistent with Executive Order 12630 of March 15, 1988.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.

GEORGE W. BUSH

THE WHITE HOUSE,

June 23, 2006.

This will achieve exactly nothing of real substance.  The exclusions are pretty broad, federal agencies aren't actively engaged in economic development takings themselves, and there is no limit on federal funds to state projects that would violate the order.

Hat tip:  Joe H.

UPDATE:  Ilya Somin, Tim Sandefur and Nicole Garnett have interesting comments on the order.

Ben Barros

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McComb, Mississippi in 1961 and 2006

I have been over in McComb, MIssissippi, for the last few days, attending the University of Mississippi's William Winter Institute for Racial Reconciliation's annual conference on teaching civil rights.  McComb was a center of much civil rights activism in the early 1960s, and the conference brought together superstar academics (like James Campbell of Brown University and John Dittmer of DePauw) with soliders from the civil rights movement.  It was a great conference and particularly good for getting college profs talking with elementary and secondary history teachers and both of those groups with activists.

One of the many highlights for me was a graduation ceremony on Thursday night for nine people from the class of 1962 at Burgland High School in McComb.  Outstanding article from the Clarion Ledger here. This is a story that should have received more coverage in the media than it did, in my opinion.  Why a graduation ceremony forty-four years late?  The answer takes up back to the fall of 1961 when sixteen year old Brenda Travis was arrested for attempting to integrate the Grayhound Bus station in McComb.  Travis spent 30 days in jail for that offense.  After she was released from jail, her classmates at Burgland High asked at a school meeting in the gymnasium if Travis would be let back into school.  When the principal, Mr. Higgins, called for the person who asked the question to come to his office, about 120 students walked out in solidarity with Travis.  They then marched to city hall, where they were arrested, along with Travis.  For the second offense, Ms. Travis spent six months in the state reform school at Oakley.

Continue reading

Alexander on Global Constitutional Property

Gregory S. Alexander (Cornell Law School) has posted The Global Debate Over Constitutional Property: Lessons for American Takings Jurisprudence on SSRN.  Here's the abstract:

The question whether to include a property clause in a new constitution or charter of entrenched rights has been highly controversial in recent years. Some nations, such as Canada, have decided not to include property as an entrenched rights, while other nations, such as South Africa, have included property clauses in their new constitutions. This book examines the questions of whether and why property should be made the matter of constitutional protection from a comparative perspective. Several insights emerge from this perspective. One is that a society's background legal and political traditions and culture has at least as much effect on the security and stability of property holdings as a constitutional property clause (or the absence of such a clause) has. At the same time, while historical legal traditions and culture exert a strong influence on property, they are not determinative. Constitutional text may matter. One area in which text may matter is the role of the social-obligation aspect of property. Comparing American takings law with its counterparts in other countries, notably Germany and South Africa, suggests the importance of text in the scope and coherence of the social-obligation norm in constitutional property jurisprudence. Comparative analysis further discloses several doctrinal practices that American takings law might borrow from other jurisdictions that have the potential for contributing to the construction of a more coherent and transparent takings jurisprudence.

Ben Barros

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Rankings of Law Journals: The View from the Customer (i.e., Author): Or, What's the bepress ranking of law reviews mean?

I posted the substance of this last May.  (So this may sound vaguely familiar.)  Given recent discussions I've had with colleagues about bepress' list of the "100 most popular general student law reviews," I think it's time to repost it (with slight revisions).

I've been following the discussion of bepress vs. ssrn over at prawfsblawg and orinkerr (and of ssrn  recently over at prawfslawg). 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 suggest 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.  Those that are diligent about getting good manuscripts can get some good press.

Here's the data I'm interested in:

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 data 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 fine journal; I enjoy reading their articles (including their recent symposium on the New Legal Realism--especially Thomas Mitchell's Destabilizing the Normalization of Rural Black Land Loss: A Critical Role for Legal Empiricism) 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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Linden and Rockoff on Economic Impact of Megan's Law

Leigh L. Linden (Columbia University - Department of Economics) and Jonah Elliott Rockoff (Columbia Business School) have posted There Goes the Neighborhood? Estimates of the Impact of Crime Risk on Property Values from Megan's Laws on SSRN.  Here's the abstract:

We combine data from the housing market with data from the North Carolina Sex Offender Registry to estimate how individuals value living in close proximity to a convicted criminal. We use the exact location of these offenders to exploit variation in the threat of crime within small homogenous groupings of homes, and we use the timing of sex offenders' arrivals to control for baseline property values in the area. We find statistically and economically significant negative effects of sex offenders' locations that are extremely localized. Houses within a one-tenth mile area around the home of a sex offender fall by four percent on average (about $5,500) while those further away show no decline. These results suggest that individuals have a significant distaste for living in close proximity to a known sex offender. Using data on crimes committed by sexual offenders against neighbors, we estimate costs to victims of sexual offenses under the assumptions that all of the decline in property value is due to increased crime risk and that neighbors' perceptions of risk are in line with objective data. We estimate victimization costs of over $1 million - far in excess of estimates taken from the criminal justice literature. However, we cannot reject the alternative hypotheses that individuals overestimate the risk posed by offenders or view living near an offender as having costs exclusive of crime risk.

Ben Barros

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Supreme Court Decision on Scope of Federal Wetlands Regulations

The Supreme Court decided the Rapanos case today.  Justice Scalia's plurality opinion held that the Clean Water Act does not extend to areas, like drainage ditches, where waters are not permanent.  Justice Kennedy's concurrence may turn out to be the key opinion in the case.  Good discussions of the case are available at Scotusblog (here, here and here), the Volokh Conspiracy, and The Pacific Legal Foundation's Rapanos Blog.

Ben Barros

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Universities as Developers

Related to the subject of earlier posts (here and here) on university expansions, the Philadelphia Inquirer has a story on a major redevelopment project being undertaken by the University of Pennsylvania:

The Schuylkill is just 330 feet wide at Walnut Street, but by other measuring sticks, Center City and West Philadelphia are far more distant neighbors. The west bank's tangle of rail lines, its grimy industrial remains, the roaring expressway - all have served to further cleave the city.

That divide could begin to narrow next year, when the University of Pennsylvania embarks on an epic riverfront redevelopment project. It is expected to take more than two decades, cost $1.94 billion and, as high hopes go, ultimately meld Center City and West Philadelphia into one big, lively city core.

Endorsed by the university trustees on Thursday, Penn's plan is to revitalize 40 acres from Walnut Street to just below South Street on the campus' eastern edge. On what is now an eyesore of a site, office towers, condos and research centers would rise amid new athletic fields and recreation spaces, shops and restaurants. There is even talk of an elegant pedestrian bridge arcing the Schuylkill.

The story is very positive, and doesn't suggest that the project will involve eminent domain or displacement of residents.  Still, it's a big project, so there must be some controversy somewhere.  If not, more power to Penn.

Ben Barros

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Roark's Requiem on the Nomos of the Louisiana Civil Law

Close readers of propertyprof will recall that Ben (and I in the comments) wrote a little bit about Marc Roark's The Constitution as Idea: Defining Describing Deciding in Kelo in April.  Roark's latest, Opening the Barbarian's Gate or Watching Barbarians from the Coliseum: A Requiem on the Nomos of the Louisiana Civil Law, is now up on bepress.

Roark has some great titles, for sure.  Here's his abstract:

Comparative Law tends to focus on the differences and similarities present in different legal systems. Such analysis has led some to conclude that a third legal system has appeared in the West and in particular in Louisiana. The idea of a mixed jurisdiction, they claim, combines certain elements of Civil law and Common law into a hybrid system. This article challenges the supposition that a legal system’s core identity can be of a mixed nature. Rather, this article suggests that the proper way a legal system should be viewed is through its normative values as depicted in the narratives the system spawns – a Nomos that directs the purveyors of the system towards the sources and identity that the system enchants. Focusing primarily on Louisiana, Part I of this article describes three normative elements that narratives tell about the Louisiana civil law: its frenchness, its distinctiveness, and its dependency on a Code. Part II then tells two narratives that demonstrate how these narratives are revealed, even when they are not completely accurate. Part III challenges the readers to inhabit the nomos.

Roark's interested in how legal traditions evolve and uses the laboratory of Louisiana to test how the civil and common law influence each other.  (The barbarians in the title is a reference to the way that "barbarians" influence societies they come in contact with--and how they cause those other societies to, in Roark's words, "get better or disorganize."  There are some narratives about the Louisiana system--the prevalence of a Code, its connections to French law, and its distinctiveness from other legal traditions.  Lot to think about here--and a lot of it is beyond the usual scope of propertyprof.   But I want to focus on one part of his paper: his discussion of Louisiana's slave law.  Roark uses those key elements to ask about the origins of Louisiana's slave law.  Basically, as I understand it, does the Code Noir fit with the narratives about Louisiana law more generally?  He finds even though the source of slave law was often the Spanish legal system, that they were applied in the Louisiana system using characteristically Louisiana principles, like considerations of humanity.  There's a lot to think about in this paper.  I always enjoy reading about legal traditions and thinking about how those traditions evolve.

Endnote: The photo of the Louisiana Civil Code is from our friends at Neal Auction (the Code was in lot 757).

Alfred L. Brophy
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Weekly Top Ten

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

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

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

3. (103) Unpacking the Household: Informal Property Rights Around the Hearth, Robert C. Ellickson (Yale Law School)

4. (68) The Uselessness of Public Use, Abraham Bell (Bar Ilan University and Fordham Law School) and Gideon Parchomovsky (University of Pennsylvania - School of Law)

5. (67) 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)

6. (64) The City as an Ecological Space: Social Capital and Urban Land Use, Sheila Foster (Fordham University School of Law)

7. (64) What Determines Protection of Property Rights? An Analysis of Direct and Indirect Effects, Meghana Ayyagari (George Washington University), Asli Demirguc-Kunt (World Bank) and Vojislav Maksimovic (University of Maryland)

8. (63) From Direct 'Public Use' to Indirect 'Public Benefit': Kelo v. New London's Bridge from Rational to Heightened Scrutiny for Eminent Domain Takings, Trent Christensen (Brigham Young University)

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

10. (50) Mine & Thine Distinct: What Kelo Says about our Path, Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project)

Ben Barros

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The Artwork of Feudalism

Continuing the theme of feudalism we've been talking about recently, this morning's New York Times has a lovely article on changes at the Metropolitan Museum's the Cloisters, which was constructed in the 1930s in upper Manhattan from five medieval French cloisters.  I spent some very happy times studying in the park outside the Cloisters when I was a law student, many, many years ago--and so have a warm place in my heart for the museum.  Among the changes are an increased in the stained glass on display.

Photocredit: The picture is of part of Robert Campin's triptych, the Mérode Altarpiece (created between 1425 and 1428), which is on display at the Cloisters,  It is courtesy of our friends at Wikipedia.  (I know, I know, the triptych is from the period after what we usually think of as the end of feudalism, but some of the Cloisters' art is from the period of feudalism.  More on feudalism coming in the next few weeks, including on the island of Sark and "the image of feudalism in the nineteenth century missionary mind.")

Alfred Brophy

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McLaughlin on Conservation Easements

Nancy A. McLaughlin (University of Utah - S.J. Quinney College of Law) has posted Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controversy on SSRN.  Here's the abstract:

Federal and state legislators encourage and facilitate the creation of "perpetual" conservation easements because they expect such easements to provide benefits to the public over the long term. Whether perpetual conservation easements will live up to that expectation will depend, in large part, upon the nature of the legal framework supporting and governing such easements over time. This article explores the legal framework within which perpetual conservation easements may be modified or terminated to respond to changed conditions. To put the issue in context, the article examines a real-world controversy involving the proposed amendment of a perpetual conservation easement encumbering a 160-acre historic plantation on the Maryland Eastern Shore to permit a seven-lot subdivision on the property, and the subsequent defense of the easement by its holder and the Maryland Attorney General on the ground that the easement constitutes a charitable trust. The article concludes that charitable trust rules operate to protect the public's interest and investment in perpetual conservation easements, and the holder of a perpetual conservation easement that simply agrees with the owner of the encumbered land to modify or terminate the easement in contravention of its stated purpose does so at its peril. Perpetual conservation easements are not merely private contracts between the owner of the land and the holder of the easement. Easement terminations - as well as amendments that are inconsistent with the stated purpose of the easement - require court approval in a cy pres proceeding, where appropriate consideration will be accorded to both the intent of the easement grantor and the interests of the public. In situations where the holder of a perpetual conservation easement simply agrees to amend (or terminate) the easement in contravention of its stated purpose, the charitable trust rules permit the state attorney general (or, if the attorney general declines to become involved or is ineffective, a party with a "special interest") to object. The article also explains that the charitable trust framework provides holders of perpetual conservation easements with a certain degree of flexibility to respond efficiently to inevitable changes. For example, an easement grantor can grant the holder the discretion to simply agree to amendments that are consistent with the stated purpose of the easement, thereby avoiding the inefficiencies that would arise from intrusive public oversight of the holder's day-to-day management of the easement.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Kochan on Public Use

Donald J. Kochan (Chapman University School of Law) has posted "Public Use" and the Independent Judiciary: Condemnation in an Interest-Group Perspective on SSRN.  Here's the abstract:

This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by institutional tendencies inherent in the independent judiciary.

Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it on the grounds that the condemnation is private in nature. Interest groups will invest in obtaining condemnation actions for their own private purposes--in pursuit of an ultimate title transfer, an increase in the value of adjacent property owned by that special interest, or a harm to a competitor. While institutional structure might make it impossible to increase the costs of successfully defending a condemnation in the courts, structural change can be implemented.

Applying the seminal work of Landes and Posner on the independent judiciary, this Article proceeds to illustrate that the toothless public use doctrine provides proof for their hypothesis that the judiciary exhibits a tendency to enforce interest-group bargains according to their original terms. The best means for preventing interest-group capture of the condemnation power is to increase the costs of obtaining condemnations.

Proposals which increase the costs of obtaining condemnations are the best hope for impeding rent-seeking through eminent domain. Methods should be established to force more interest groups to bargain in the competitive marketplace for the property they wish to either acquire or transform. This forced bargaining may even inspire the creation of innovative solutions to the holdout problems that sometimes are claimed to justify the use of condemnation.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Green and Wachter on The American Mortgage

Richard K. Green (Federal Home Loan Mortgage Corporation) and Susan M. Wachter (University of Pennsylvania, Wharton) have posted The American Mortgage in Historical and International Context on SSRN.  Here's the abstract:

Home mortgages have loomed continually larger in the financial situation of American households. In 1949, mortgage debt was equal to 20 percent of total household income; by 1979, it had risen to 46 percent of income; by 2001, 73 percent of income (Bernstein, Boushey and Mishel, 2003). Similarly, mortgage debt was 15 percent of household assets in 1949, but rose to 28 percent of household assets by 1979 and 41 percent of household assets by 2001. This enormous growth of American home mortgages, as shown in Figure 1 (as a percentage of GDP), has been accompanied by a transformation in their form such that American mortgages are now distinctively different from mortgages in the rest of the world. In addition, the growth in mortgage debt outstanding in the United States has closely tracked the mortgage market's increased reliance on securitization (Cho, 2004).

The structure of the modern American mortgage has evolved over time. We begin by describing this historical evolution. The U.S. mortgage before the 1930s would be nearly unrecognizable today: it featured variable interest rates, high down payments and short maturities. Before the Great Depression, homeowners typically renegotiated their loans every year.

We next compare the form of U.S. home mortgages today with those in other countries. The U.S. mortgage provides many more options to borrowers than are commonly provided elsewhere: American homebuyers can choose whether to pay a fixed or floating rate of interest; they can lock in their interest rate in between the time they apply for the mortgage and the time they purchase their house; they can choose the time at which the mortgage rate resets; they can choose the term and the amortization period; they can prepay freely; and they can generally borrow against home equity freely. They can also obtain home mortgages at attractive terms with very low down payments. We discuss the nature of the U.S. government intervention in home mortgage markets that has led to the specific choices available to American homebuyers. We believe that the unique characteristics of the U.S. mortgage provide substantial benefits for American homeowners and the overall stability of the economy.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Garnett on Cities and Suburbs

Nicole Stelle Garnett has posted Save the Cities, Stop the Suburbs? on SSRN.  Here's the abstract:

This Essay reviews two recent books: Robert Bruegmann, Sprawl: A Compact History and Joel Kotkin, The City: A Global History. Bruegmann, an architectural historian, makes an important contribution to the thinking about suburban sprawl by placing current development patterns in historical context. Bruegmann builds a strong case that the costs of limits on suburban development – especially the reduction in the supply of affordable housing – might well outweigh their benefits. His failure to consider whether measures other than suburban growth restrictions might enliven cities, however, is a serious shortcoming. The Essay suggests that urban officials must find ways to make cities, in Kotkin’s words, “sacred, safe, and busy,” places again. The Essay urges local governments to examine how city land use policies (as opposed to suburban ones) affect urban life and suggests that city officials must address inevitable tensions between safety and busyness and between busyness and beauty.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]