PropertyProf Blog

Images of Property in Faulkner's The Bear

Al's discussion of Images of Property in American and Hawaiian Landscape Art a while back reminded me of one of my favorite images of property in American literature, the conversation between Ike and McCaslin that begins Chapter IV of William Faulkner's The Bear.  The entire novella is full of property images and issues, but in this passage the characters are discussing the legitimacy of their family's ownership of its land and the legitimacy of the concept of ownership itself:

He [Ike] could say it, himself and his cousin [McCaslin] juxtaposed not against the wilderness but against the tamed land which was to have been his heritage, the land which old Carothers McCaslin, his grandfather, had bought with white man's money from the wild men whose grandfathers without guns hunted it, and tamed and ordered, or believed he had tamed and ordered it, for the reason that the human beings he held in bondage and in the power of life and death had removed the forest from it and in their sweat scratched the surface of it to a depth of perhaps fourteen inches in order to grow something out of it which had not been there before, and which could be translated back into the money he who believed he had bought it had had to pay to get it and hold it, and a reasonable profit too: and for which reason old Carothers McCaslin, knowing better, could raise his children, his descendants and heirs, to believe the land was his to hold and bequeath, since the strong ruthless man has a foreknowledge of his own vanity and pride and strength and contempt for all his get:  just as, knowing better, Major de Spain had his fragment of that wilderness which was bigger and older than any recorded deed:  just as, knowing better, old Thomas Sutpen, from whom Major de Spain had had his fragment of money:  just as Ikkemotubbe, the Chickasaw chief, from whom Thomas Sutpen had had the fragment for money or rum or whatever it was, knew in his turn that not even a fragment of it had been his to relinquish or sell . . .

"Relinquish," McCaslin said.  "Relinquish.  You, the direct male descendant of him who saw the opportunity and took it, bought the land, took the land, got the land no matter how, held it to bequeath, no matter how, out of the old grant, the first patent, when it was a wilderness of wild beasts and wilder men, and cleared it, translated it into something to bequeath to his children, worthy of bequeathment for his descendants' ease and security and pride, and to perpetuate his name and accomplishments. . . ."

"I can't repudiate it.  It was never mine to repudiate.  It was never Father's and Uncle Buddy's to bequeath me to repudiate, because it was never Grandfather's to bequeath them to bequeath me to repudiate, because it was never old Ikkemotubbe's to sell to Grandfather for bequeathment and repudiation.  Because it was never Ikkemotubbe's fathers' fathers' to bequeath Ikkemotubbe to sell to Grandfather or any man because the instant when Ikkemotubbe discovered, realized, that he could sell it for money, on that instant it ceased ever to have been his forever, father to father to father, and the man who bought it bought nothing."

"Bought nothing?" . . .

"Bought nothing.  Because He told in the Book how he created the earth, made it and looked at it and said it was all right, and then He made man.  He made the earth first and peopled it with dumb creatures, and then He created man to be His overseer on the earth and to hold suzerainty over the earth and the animals on it in His name, not to hold for himself and his descendants inviolable title forever, generation after generation, to the oblongs and squares of the earth, but to hold the earth mutual and intact in the communal anonymity of brotherhood, and all the fee He asked was pity and humility and sufferance and endurance and the sweat of his face for bread."

There's a tremendous amount of property theory in just this short passage.  The first few lines remind me of, among other things, the issues raised by Johnson v. M'Intosh.  The expression of utter contempt for the Lockean view that labor, particularly the labor of slaves, could establish title to land by "scratch[ing] the surface of it to a depth of perhaps fourteen inches" is very powerful.  The rest of the passage questions the very idea of title and of the ability of someone with questionable title to pass ownership to another person.

I've been looking around for an analysis of the property issues in Faulkner's work but haven't found anything.  Perhaps it would be a good note topic for a student with a literary bent.

If you have favorite images of property in literature or art, please leave a comment.

Ben Barros

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Please suggest a note topic

Ah, it's that time of the year again: law reviews are beginning to hand out invitations to incoming second years.  Congratulations to you all.  Law review's a great honor and a great learning experience.  Students benefit from the experience of performing close reads on the articles they're cite-checking and editing; they can learn a lot from the writing experience as well, including working closely with faculty members on their notes.

How do I know that law reviews are handing out offers?  I'm beginning to get questions from students asking for helping in selecting a note topic.  (This time it's from my students at the University of Hawaii.)  And so it begins again.  Lo' those many years ago Eben Moglen suggested a topic to me, on federalism in the Taney Court.  I am eternally grateful to him.  And over the years I've suggested a bunch of topics to students.  Some of the better ones in recent years include 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; Elizabeth Bates on statutes of limitations for reclamation of artwork produced by slaves; Chris Williams on an empirical study of smart growth; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law.

The key to a good student note topic is: that it's do-able over the course of the second year.  What's that mean?  First, it's a topic that hasn't yet been over-written.  That means stay away from takings (exception to follow).  Some years ago one of my favorite students of all time asked me about writing on takings.  And I said, well, spend the weekend looking at what's been done and reading (the then most recent case), Palazzolo and if you can find something new to say, let me know.  So the next week she said, "seems like everything has been taken.  [pause]  I guess that was your point."

Second, find something that's at least a little interesting.  You're going to be living with it for a while.  Third, find something that's narrow enough that you can read everything on the topic and come to a reasonable conclusion in the time you have available.  Fourth, find a topic on which you can say something about the law (this usually means finding a place where law is in flux).  It's not a great idea to rehash the arguments against a particular Supreme Court decision.  That's been argued and answered, even if you don't like the result.  (This advice applies to faculty, as well.)  The Columbia Law Review used to have a rule: you can't criticize the Supreme Court in your note.  Good advice for second year law students, I think.  Not that the Supreme Court has always done everything right; it's just that it's good to stay away from a topic on which you know going in you can't have much effect.

That means that narrow doctrinal topics are really good; brief empirical pieces, are also very good.  And I think historical pieces are ideal, because there is so much that's left to be said about legal history. Talk to people at work; often times, the best note ideas come from practicing attorneys who see issues as they're just beginning to make their way through litigation.

Here are a few things that are on my mind this summer, which might be good student note topics.  Just remember, you got these ideas from Brophy.  I want credit for this stuff; at least thank me in a footnote. First--and breaking the rule against takings: there are a couple of places in takings where we student work could help us.  What procedures have state courts developed to protect against abuses of public use.  Some years ago Thomas Merrill published an important study in the Cornell Law Review on this.  I think there's a lot to do with this at the state level.

Second, amidst all this talk about how regulatory takings hurt little people, I think there's been little empirical work on who benefits from the expanded takings jurisprudence.  I had a student write a very good paper that studied takings claims in the Fourth Circuit.  She found that virtually everyone who successfully sued was a developer.  (No surprise here, but I think there's some good work to be done on this topic--looking at reported cases and also studying the process before it reaches the courts.  Though the later is much harder.)

Third, we could use some recent empirical work on how the restatement (third) of servitudes has been interpreted by state courts.  How's the progress on replacing touch and concern with a more general "reasonableness" inquiry going?

Fourth, doctrinal notes are very helpful and are actually cited.  What are the areas of property doctrine that could use updating?  I think there's some good work to be done on recent cases on damages for breach of land sale contracts (and specific performance).  But there are plenty of places where we could use some more work, especially in property and equity (like agreed boundaries and easements by estoppel).

Fifth, I think we need to know more about the process by which southern courts pursued the process of integration--libraries and swimming pools are both great subjects for study.  And they're self-limiting: you can collect all the cases in which libraries or pools were integrated quickly.  Then it's a process of figuring out what they meant.

Sixth, property and equity is a topic of growing importance.  For instance, are we seeing state courts beginning to limit constructive trusts?  Are courts changing their attitudes towards injunctions for violations of servitudes?  Are courts invoking property rules or liability rules with more frequency?  Are they changing their frequency for invoking either?

Seventh, you might take advantage of the miracle of full-text searching on lexis and westlaw and study how various phrases have been used.  When do courts criticize something as feudal, for instance.  Or you might take a page from Randall Kennedy's book on the n-word and make a comprehensive study of how courts have reacted to the n-word.

Eight, if you're thinking about case notes, I recommend a serious look at Jones v. Flowers.  There's some great work to be done on comparing the rhetoric of Jones and Kelo.  I have some comments on that here.

And now this good news, that Eugene Volokh and the UCLA law library have opened a website, lawtopic.com, which is a clearinghouse for law review topics.  That's a great contribution to the community; I appreciate their generosity.

[Update:  More thoughts on this subject are here.]

Another Update:  Here is a link to Stanford Law Review's memo on note topics.  I thought you might find it of some interest.  And here is a link to University of California, Hastings Professor Roger C. Park's lengthy list of note topics.

Alfred L. Brophy
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Somin on Godsil

Ilya Somin has a post up at the VC on Rachel Godsil's recent article Race Nuisance: The Politics of Law in the Jim Crow Era.  Al discussed this article last week.

Ben Barros

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Loshin on Sign and Billboard Regulation

Jacob Loshin (Yale Law School) has posted Property in the Horizon: The Theory and Practice of Sign and Billboard Regulation on SSRN.  Here's the abstract:

This article is the first piece of legal scholarship to address the land use issues associated with signs and billboards in a comprehensive and systematic manner. Although other scholars have addressed signs as a category of First Amendment law, the land use side of the sign issue has been neglected. Signs are a pervasive form of land use, and they pose distinctive practical and theoretical problems for land use law and policy. Yet, the land use literature has rarely treated signs as such. This article seeks to fill the void. The article has three principal aims. First, it provides a comprehensive history of sign and billboard disputes, using one city’s century-long experience as a case study. The article relies on original research from primary sources to explain how and why patterns of sign land use and sign regulation have evolved over time. It pays special attention to the economics of signs and the public choice aspects of sign regulation. Secondly, the article uses lessons gleaned from this history to construct a framework for thinking about sign regulation. It examines how signs relate to concerns about nuisance, aesthetics, information, and expression. It also corrects certain conceptual mistakes made by judges and policymakers. Finally, the article evaluates the regulatory tools available for controlling sign land use. It critiques some common approaches to regulating signs, and it argues that sign regulation should embrace alternative regulatory tools, such as nuisance law and taxation, which have so far been underutilized and underappreciated.

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

2. (77) Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo, Alberto Lopez (Salmon P. Chase College of Law)

3. (76) Coordination, Property & Intellectual Property: An Unconventional Approach to Anticompetitive Effects & Downstream Access, F. Scott Kieff (Washington University School of Law)

4. (64) Save the Cities, Stop the Suburbs?, Nicole Stelle Garnett (Notre Dame Law School)

5. (47) Nothing 'Errant' About It: The Berman and Midkiff Conference Notes and how the Supreme Court got to Kelo with its Eyes Wide Open, Benjamin Barros (Widener University - School of Law)

6. (34) Common Law and Federalism in the Age of the Regulatory State, Alexandra B. Klass (University of Minnesota Law School)

7. (30) Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controversy, Nancy A. McLaughlin (University of Utah - S.J. Quinney College of Law)

8. (28) The Code Pastoral of the Islamic Republic of Mauritania Return to the Sources: Revival of Traditional Nomads' Rights to Common Property Resources, Hans-Werner Wabnitz (Independent)

9. (27) 'We Shall Not Be Moved': Urban Communities, Eminent Domain and the Socioeconomics of Just Compensation, James J. Kelly (University of Baltimore - School of Law)

10. (26) Property in the Horizon: The Theory and Practice of Sign and Billboard Regulation, Jacob Loshin (Yale Law School)

Ben Barros

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Property Pictures: Beaches and No Trespassing Signs

Here at propertyprof we talk about all sorts of things, including pictures of landscape art in the nineteenth century.  At other times we talk about community rights in property--like the right to access a cemetery on private property or the right to cross property to get to a beach.  But, as you all know, the right of exclusion is substantially broader than the right to access.

In that spirit, I thought I'd post a couple of photographs I took at the SEALS conference.  One is of a no trespassing sign at the Breakers Hotel (aptly named because it breaks your budget); the other is essentially the same: a notice that the Breakers' beach is private.  I've added them to my growing collection of interesting no trespassing signs.  And it's probably time for a bleg here--if you have a photograph of a no trespassing sign that you like, please send it along.  I'll share it with everyone.

So next time you teach Matthews v. Bay Head or, if you're teaching something even more innovative, like Public Access to Shoreline Hawaii (PASH), how about showing a couple of pictures of private beaches.

Alfred L. Brophy
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Lists: of downloads and of books

It's a lovely Saturday in July, which means it's time for something a little different.  Dedicated propertyprof readers know I love lists--like rankings of law journals based on citations. 

As a side-note here, you may recall that I've previously expressed great skepticism of ssrn downloads as a measure of quality.  And I've commented previously about bepress' strange ranking of law journals, based on submissions through bepress (another measure based on "downloads" of a sort.)  Fellow propertyprof William S. Brewbaker suggeted earlier this week that there's an inverse relationship between downloads and quality.  I tend to agree with him.  Yet, Brian Leiter is increasing my faith in lists of ssrn downloads as a measure of quality.  And so is Theodore Seto, whose study of ssrn downloads ranks the University of Alabama graduate tax law program as number six based on ssrn downloads.

But I do like these lists of books, even if they're rather odd.  I came across this one recently that lists 250 great authors of western civilization (I can't remember which blog pointed me to it--so my apologies for not giving the customary shout-out.)  Great links to the works, as well.  And human events has another list, of the 10 most harmful books of the nineteenth and twentieth centuries.  Makes for mighty interesting thinking.

My colleague Paul Pruitt and I are working on another list: the 5000 books in the University of Alabama library that were burned in the closing days of the Civil War.  Paul's suggested a great title: "Burned Books."  Not a lot of law books in there, but I'll be posting some on our progress.

Alfred L. Brophy
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Kelly's Urban Communities, Eminent Domain, and the Socioeconomics of Just Compensation

I've been reading James J. Kelly's 'We Shall Not Be Moved': Urban Communities, Eminent Domain and the Socioeconomics of Just Compensation.  (Ben's post on Kelly's "Urban Communities, Eminent Domain, and Socioeconomics of Just Compensation" here.)

Here is Kelly's abstract:

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of “public use” and “just compensation” as limitations on eminent domain. In the context of urban redevelopment, the theory supports greater resident autonomy in the compulsory assembly of residential land to subsidize and induce private economic development. The article’s second part articulates two legislative reforms that protect residents from unjustified, irreparable harm without depriving urban redevelopment of eminent domain’s essential efficacy in coordinating investment.

Specifically, homeowners should not be subject to eminent domain pursuant to a redevelopment plan until the majority of them have approved the plan. To further solidify resident ownership of redevelopment, the right to continued residency in the community should be protected by amending relocation laws to guarantee an alienable entitlement to be offered replacement housing in the redeveloped district area. Together, these two legislative reforms express a more nuanced balance of property and liability rules that will facilitate a more productive interface between community residents and redevelopment officials.

So Kelly proposes two legislative solutions: first, that there be no relocation of a community of homes without consent of a majority of homeowners and second that when relocation occurs, there entire community is relocated elsewhere.  All interesting proposals and worthy of consideration.  There's a lot going on in his paper, which I highly recommend. 

I wonder if there is a possibility of a judicial recognition of the importance of staying in one's house--which might build on the understanding that homes are different.  Part of this derrives from Ben Barros' work; other parts from contract remedies: we continue to recognize a right of specific performance in sales for homes, but the right of specific performance for commerical land is breaking down.

Alfred L. Brophy
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Ely on Kersch's Constructing Civil Liberties

You may have read Vanderbilt University propertyprof James Ely's important article on Richard Epstein's influence (recommended here.)  Now Ely's review of Ken Kersch's important book, Constructing Civil LIberties: Discontinuities in the Development of American Constitutional Law, is available on the Independent Institute's website.  Everyone's talking about Kersch these days and Ely gives you a quick way of getting up to speed.  You might also be interested in Kersch's recently published edited volume, The Supreme Court and American Political Development.

Yesterday afternoon's mail also brought the good news that James Ely will receive 2006 Brigham-Kanner prize in property from William and Mary Law School at the third annual property rights conference on October 6 and 7.  The previous recipients are Richard Epstein and Frank Michaelman.  Propertyprof readers may be particularly familiar with Jim's outstanding The Guardian of Every Other Right (Oxford University Press, 2nd ed. 1998).  He is also the co-author with Jon Bruce of the popular Cases and Materials on Modern Property (West, 5ed. 2003) and Law of Easements and Licenses in Land (West).  Legal historians also know Jim as the author of, in addition to the Guardian of Every Other Right and lots of important articles, The Chief Justiceship of Melvin Fuller (South Carolina, 1995) and the co-author of the leading American Legal History: Cases and Materials (Oxford University Press, 2005) and Oxford Companion to the Supreme Court of the United States (2nd ed. 2005), among many, many other works.  He's also an all-around mensch, especially to younger scholars.

Alfred L. Brophy

Ohio Supreme Court Prohibits Economic Development Takings

The Ohio Supreme Court decided the Norwood case today.  I'm on the road and haven't read the full opinion yet, but Ilya Somin has a detailed post on it at the VC.

Ben Barros

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Ranking Law Reviews Based on Citations

I love rankings of law journals based on citations.  So when I saw Paul Butler (and then Larry Solum and now Dan Solove) linking to Emory Law Library's website list of contact information of the 35 most cited law reviews, I was excited.  Emory's list is quite helpful; in fact, we need someone to compile a list of the top 50 or maybe even 75.  I certainly need to submit to more than 35 journals and I suspect most people do, too.

But what do we make of the journals on the Emory law library list?  They (like I) use John Doyle's list of citations at the Washington and Lee Library website.  It's the gold standard, in my opinion.  I've used Doyle's data for two papers on the relationship between law review citations and law school rankings.  My most recent paper looks at changes over time in the law review citations and changes in the US News rankings of those reviews' parent institutions.  The executive summary is available here.  In that paper I focus on Doyle's overall citations; but Emory uses Doyle's data to rank journals by impact (citations per article/note/comment/book review).

If Emory used overall citations rather than impact, there would be some changes.  Five reviews on Emory's list aren't in the top 35 of overall citations (actually, there are 36 schools on the Emory website because Villanova and Wisconsin are tied for 35).  Here are the five law reviews that are on the Emory list of top 35 in terms of impact but are not in the top 35 in terms of overall citations (the rank in paratheses is their rank in terms of overall citations):

Boston College Law Review (ranked 36)
Univeristy of California, Davis (ranked 40)
Villanova Law Review (ranked 47)
Wake Forest Law Review (ranked 44)
Wisconsin Law Review (ranked 38)
Washington Law Review (ranked 48)

There are also four that are in the top 35 of overall citations, but not in the top 35 in impact.  Here are the four reviews (again, rank in overall citations is in parenthses):

Fordham Law Review (tied for 9)
Cardozo Law Review (ranked 26)
Tulane Law Review (ranked 29)
University of Connecticut Law Review (ranked 33)

The Emory list is very useful.  Here's hoping they'll add some more contact information.  One final caution: remember, the ranking of law journals that bepress presents is problematic.

UPDATE:  A reader reminded me this evening that Doyle's outstanding website at W&L has a submit feature, which facilitates submission via email.  He has detailed information on how to e-submit, including email addresses.  He provides a lot of the functions of the bepress, but for free.  Doyle's awesome.

Alfred L. Brophy
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Global Issues in Property Law

Yesterday afternoon's mail brought Global Issues in Property Law  by John Sprankling, Raymond Coletta, and M.C. Mirow (published by Thomson West).  It looks like a terrific volume, which you can assign to students as a supplement to your casebook, to give students a global perspective on property.  There's everything in here from the global agreement on the moon to human rights and property to eviction of tenants in Portugal, to squatters rights, the right to exclude, nusiance, and takings.  I'm going to spend some time with this and learn about a lot about topics on which I know less than I'd like.

I'm a fan of these kinds of texts, which are reasonably priced (less than $20) and help to round out the casebook.  I think you'll want to check it out and consider it for adoption.  Also, I know it would go well in an upper-level course on transnational perspectives on property, perhaps in conjunction with Gregory Alexander's Global Debate Over Constitutional Property.

Al Brophy

Latest on Brown University's Slavery and Justice Committee

This fall, Brown University's steering committee on slavery and justice will release its report.  Here at propertyprof, we've been talking a lot about these issues, including the Wilmington Riot Commission's report, the controversy over renaming streets (particularly Penny Lane of Beatles' fame), the memory of the civil rights movement in McComb, Mississippi, restitution of art, and reparations more generally.  I thought you might enjoy this comprehensive article from the Brown Daily Herald. 

Here's a taste of the article, including some quotations from me:

"I think the reparations movement is going away very rapidly from individual payments," Brophy said. "It's focusing on cultural issues. How do we remember (or not remember) the connection of great institutions -- Brown, Harvard, Yale, the University of Alabama -- as well as corporations, to slavery?"

Eric Miller, assistant professor of law at Saint Louis University School of Law, said the movement for reparations represents the "quintessential American virtue of self-reliance," as Americans demand an investigation and some form of restoration.

Miller, [Brown Professor James] Campbell and Brophy all view this shift to a broader cultural outlook as a significant development in the national reparations movement.

Campbell said the committee's own approach to the issue - which has included events on the sex slave trade, South African apartheid, genocide in Darfur and the Native American experience in Southeastern New England - demonstrates this breadth of historical and cultural perspective.

"If you look at the programs that we've sponsored over the last couple years, it's pretty clear that there are lots of different ways of thinking about repair beyond simply the narrow question of monetary reparations," Campbell said.

As an in-depth inquiry into a university's history, Brown's committee has largely been hailed as a success by academics and historians. . .  .  It has reached beyond the Van Wickle Gates and engaged other communities in its research and efforts to spur dialogue.

We'll certainly be on the case, as soon as the report comes out.

By the way, I've got a lot to say on Ben's last post on how we approach distributions of property that are inequitable to start with--but it's going to take me a while to get that post up.  Of course, Johnson v. McIntosh has a lot to say on this, as does The Antelope and debate over the Fugitive Slave Act of 1850.

Endnote: The image of Brown's University Hall, which was built in part using slave labor, is courtesy of our friends at Brown.

UPDATE:  And now the New York Times digital edition has picked up Alison Nguyen's important story.

Alfred L. Brophy

Original Acquisition and Subsequent Property Rights

I've been looking for some new subjects to add to my Property Theory seminar in the fall.  One issue that I've been thinking about lately is the significance of an original acquisition or distribution of property that can be deemed illegitimate, and its impact on subsequent title.  Even the most ardent defenders of property rights tend to suggest that to be entitled to legal protection, property must have been acquired in a legitimate manner.  Defining "legitimate", of course, can be difficult, so I've been looking for some examples to use to generate discussion.  Brazil and Hawaii come to mind as examples of original distributions that were highly concentrated and therefore are controversial.  The acquisition of state assets in post-Communist Russia also raises some interesting questions.

Even if the original acquisition was improper, what then?  There is a decent argument that subsequent acquisitions through legitimate transactions should give subsequent owners good property rights, at least in some situations.  But there might be some original acquisitions that create such a moral stain that it is possible to argue that subsequent good faith purchasers don't get good title.  It occurred to me that this argument might have come up in reparations debates.  I know next to nothing about reparations (which is why I'm really looking forward to reading Al's new book when it is  out), but I'm sure Al can enlighten me about how this type of argument has played out in reparations debates.

In any event, suggestions for readings on this subject would be very welcome.

Ben Barros

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Posner on Murphy on Douglas

I just read Judge Posner's review of Bruce Allen Murphy's biography of William O. Douglas.  Because legal history is my other area of work, I thought I'd post a link to it.  As Eugene Volokh (the person who pointed me to it) says, "it's certainly a fun and interesting read."  I agree with that.  But I'm not so sure I agree with the rest of Volokh's statement "my sense is that the criticisms of Douglas, from what I've heard, are indeed quite apt."  (Unless by apt he means accurate even if they present an incomplete picture.)  Much of the review (like the book) is about Douglas' personal life.  Of course, Douglas' substantial lies in his memoirs come in for particular examination (which, by the way, we've known about since at least G. Edward White's American Judicial Tradition.) 

What I thought about when reading the review is how much Douglas may have been creating a fictional life in his autobiography not because he deluded himself about his history, but rather because he believed in the American legend of individualism and wanted to contribute further to that legend.  Perhaps Douglas had in mind a sort of twentieth-century version of Benjamin Franklin's Autobiography.   That is, Douglas knew he was embellishing, but it may have been for a worthy purpose.  (Then again it may have been solely to satisfy his ego.) 

I'm not going to try to defend Douglas' lies or his personal life.  But I wonder how much his personal life matters to his reputation as a judge?  In working on legal history, I'm much more interested in people's ideas than their personal lives.  And to the extent I'm interested in their personal lives, it's as a way of understanding their ideas and the connection of their behavior to their ideas.  The fine work that's been done on Thomas Jefferson's personal life, like Annette Gordon Reed's, links Jefferson's ideas to his behavior.  And that's important.  I'd be interested in Douglas' extra-marital affairs if they say something about his judicial opinions.

UPDATE:  As Eugene Volokh points out, Scot Powe (a brilliant legal historian at the University of Texas, BTW) took apart many of Murphy's criticism of Douglas in an essay in Reviews in American History.  Gives new credence to the memoirs as twentieth-century version of Ben Franklin's Autobiography.

Alfred L. Brophy
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Godsil on Race Nuisance: The Politics of Law in Jim Crow

This has been a great year for legal history in major law journals: Ken Mack's brilliant study of African American lawyers in the years leading into Brown in the Yale Law Journal and Susanna Blumenthal's study of moral philosophy and the treatment of testamentary intent in antebellum wills ("The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America") in the Harvard Law Review come immediately to mind.  And now comes news that Rachel Godsil's important paper, Race Nuisance: The Politics of Law in the Jim Crow Era, will appear in the December 2006 issue of the Michigan Law Review.  (You may already have read Godsil's important article, Viewing the Cathedral from Behind the Color Line: Property Rule, Liability Rules, and Environmental Racism, in the Emory Law Journal in 2004.)

Here is her abstract:

This article explores a line of cases in the Jim Crow era in which courts ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These “race-nuisance” cases complicate the view of most legal scholarship that state courts during this era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiance to precedent and the white plaintiffs' pursuit of racial exclusivity. Surprisingly to many, the allegiance to precedent generally prevailed. The cases confound prevailing legal theories, particularly new formalism and critical race theory's interest convergence. While superficially supportive, the article illustrates the limitations of formalism's reach by also exploring the related line of racially restrictive covenant cases. Similarly, while many of the cases appear to support white property owners' interests, this article demonstrates that the race-nuisance cases are better understood as demonstrating that white interests are multi-faceted. Interest convergence therefore may explain unexpected outcomes but is unlikely to predict such outcomes. Another line of inquiry raised by the cases is whether courts racialized nuisance doctrine by marking as nuisance conduct associated with Blacks and rewarding Blacks who adhered to white norms. The first claim is impossible to know with any certainty – and the second embraces gross oversimplifications of racial group behaviors. In sum, the article casts substantial doubt on the background assumptions about the way law worked during the Jim Crow era, and thus provides a more textured understanding of that period. However, the article also grapples with the reality that legal norms do not easily translate into social practice. 

"Race Nuisance" asks why, in the era of Jim Crow, did courts uniformly reject claims that African Americans moving into a neighborhood might constitute a nuisance.  Pretty interesting stuff here.  No one should take this as evidence--and Godsil's careful to avoid arguging this--that the courts offered anything approaching justice to African Americans.  But her paper raises important questions about how "fair" courts were.  There was a willingness--indeed, I suspect that is constitutionally mandated--to apply formal rules of equality.  A person's race can't constitute a status  that makes one unequal in formal terms.  Of course, courts frequently embraced the idea of separation in public.  But what I find interesting is that there's an early Kansas case (from the early Jim Crow period) which set the standard for rejection of race as nuisance.  So I think the early precedent was helpful.  And then by the middle of the 1910s, when the cases start coming with some frequency, the courts are demanding at least some kind of basic fairness at the formal level.  I think of Guinn v. Oklahoma, McCabe v. Atchison, Topeka Railway, and Buchanan v. Warley here.  Moreover, as Godsil points out, some of the cases though rejecting race as a category that might constitute a nuisance still find nuisance in a racialized context.  I think my favorite along those lines is an African American church in South Carolina that is enjoined on the grounds that the worshippers make too much noise.

There's much to think about here.  Of course, this reminds me of Randall Kennedy's very important essay in the 1986 Columbia Law Review on the White Court.  I hope you'll read Godsil's article.  I think you'll be hearing a lot about it in the future and I know you'll enjoy it very much.  Also, you might incorporate some of her article into your property class.  As Larry Solum says, download it while it's hot.

Alfred L. Brophy
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A New Way to Promote Your Law Journal

Haven't seen this before, but it's a great idea: the Notre Dame Law Review just emailed me the table of contents for their July 2006 issue.  (Incidentally, I realize that there are a bunch of articles in it that I need to read, including John Fee's Eminent Domain and the Sanctity of the Home; Gerard N. Magliocca's Constitutional False Positives and the Populist Moment, and Stewart E. Sterk's and Mitchell L. Engler's Property Tax Reassessment: Who Needs It?  I'd already read Lawrence A. Cunningham's The Common Law as an Iterative Process: A Preliminary Inquiry on ssrn; the other articles look great, too.)  So congratulations to the Notre Dame Law Review on a terrific issue.  Now I realize that we all need to be sending out electronic table of contents.  I think this will start a trend in law review promotion--and it probably will help Notre Dame's citation ranking, as well.  (Propertyprof readers may recall that Notre Dame Law Review is ranked 23 according to the most recent citation data.  I discuss the relationship between ranking of law reviews and ranking of law schools in this paper.)

Alfred L. Brophy
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Southeastern Association of Law Schools Conference

I'm back from the Southeastern Association of Law Schools (SEALS) conference.  Always good to see old friends and people whom I know from the blogosphere, as well as make new friends.  As to the blogosphere, Dan Solove, Paul Secunda, Steve Vladeck, Dan Markel, Ann Bartow, Ellen Podgor, and Peter Henning all spoke. And lots of propertyprofs, too, including Carol Brown, Mitch Crusto, Kali Murry and Alberto Lopez.  James Kelly presented his important new paper on Urban Communities, Eminent Domain, and the Socioeconomics of Just Compensation.  I'll have some thoughts on Kelly's paper next week.

I was on a panel on slavery, chaired by David Millon.  Jason A. Gillmer gave an important paper (which will be out in the North Carolina Law Review early next year) on a case of a slave accused of raping a white woman in Arkansas in the 1850s.  Check it out at bepress now.  The trend these days in legal history is often to micro-historical studies (like the Tulsa riot); it's always heartening to see how much insight one can wring from an intensive study of one case.  Gillmer's paper reminds me of one of my favorite books, Celia, A Slave, which I highly recommend to you, along with Jason's paper.

Adrienne Davis was, as always, brilliant.  This time she looked at the complexities of race, gender, and property from will cases involving white men who left property to formerly enslaved women.  Great, great stuff.  It's related to Adrienne's terrific article in the Stanford Law Review, "The Private Law of Race and Sex: An Antebellum Perspective" (abstract available here).  You ought to read it.  I cannot remember a finer article in legal history published in the last decade--and believe me, there have been a lot of contenders for that high praise.

I presented the first draft (version 1.0) of a paper on "The Fugitive Slave Act of 1850 in American Jurisprudence."  Where others have been interested in the antislavery response to the act (Robert Cover, for instance, was interested in how anti-slavery judges reacted and why so many abided the act), I'm interested in what the debates over the act say about main currents in jurisprudence, including

• the conflict between the rule of law and humanity to individual slaves;
• considerations of slavery's overall utility to society against considerations of individual slaves;
• considerations of the practical implications of abolition against abstract religious ideas about abolition of slavery; and
• the role of historical "evidence" about the ubiquity and necessity of slavery.

I began with a vignette from Uncle Tom's Cabin, of an Ohio state senator who argued against aiding fugitive slaves.  However, when confronted with Eliza and her child Harry, who were fleeing slavery in Kentucky, the senator helped them.  That's how Stowe set up the conflict between law and humanity.  I then use the act to talk about how considerations of the rule of law, utility, and history all combined to impede the process of reform (abolition).  The language that the legislators spoke correlates closely with that of many ministers and college professors and, especially, jurists.  And together I think those debates give a good picture of how the majority of antebellum Americans thought about issues of law and reform.  I think the debates can give us a good way of understanding the powerful forces that law reformers of any kind, not just abolitionists, were up against (to paraphrase David Brion Davis).  And how considerations of utility and historical evidence of inequality in human society combined to make it unlikely that judges would depart from precedent.  This is the flip side of the emergence of an "instrumental conception" among common law judges in the nineteenth century that Morton Horwitz talks in The Transformation of American Law, 1780-1860 (1977).  For these conceptions of law are about restraining--or distinctly limiting and channeling--legal change.  I talk some about this in relation to common law judging in "Reason and Sentiment: The Moral Worlds and Modes of Reasoning of Antebellum Jurists" in the Boston University Law Review back in 1999 and a little in this paper on antebellum literary addresses at the University of Alabama.

The highlight of the panel for me was the discussion; we actually had enough time to have a serious discussion with the audience--very enlightening.

Endnote: The image, the text of the Fugitive Slave Act, is from our friends at the Library of Congress.

Alfred L. Brophy
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Jacoby on Bankruptcy Reform and Homeownership

Melissa B. Jacoby (UNC Chapel Hill School of Law) has posted Bankruptcy Reform and Homeownership Risk on SSRN.  Here's the abstract:

The personal bankruptcy system is part of a larger system of household risk management. Much of the discussion of personal bankruptcy has focused on bankruptcy's insurance role with respect to unsecured obligations like credit cards and medical bills. In this symposium contribution, I redirect the analysis by evaluating the bankruptcy system, and particularly chapter 13, as a mortgagor protection law. In particular, I explore how bankruptcy might be encouraging and prolonging unsustainable homeownership at significant financial and psychosocial cost. I then consider the impact of two recent revisions to the Bankruptcy Code relating to credit counseling and repeat filers. I conclude that these revisions may improve the system modestly by enabling sorting based on homeownership sustainability.

Ben Barros

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Dana on Kelo and the Poor

David A. Dana (Northwestern University School of Law) has posted The Law and Expressive Meaning of Condemning the Poor After Kelo on SSRN.  Here's the abstract:

The Supreme Court's decision in the Kelo case has been widely criticized, and has ignited a firestorm of “reform” in the states. Twenty three state legislatures have passed reform statutes, and nineteen of these statutes have been signed into law. Reform legislation has been introduced in at least 13 other states. This Essay addresses the question of what message is sent by – what is the expressive meaning of – the Kelo-inspired reform movement. My argument is that, in substantial part, this reform movement privileges the stability of middle-class households relative to the stability of poor households, and in so doing, expresses the view that the interests and needs of poor households are relatively unimportant.

Ben Barros

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