Friday, August 11, 2006

More Property Note Topics

Last week, Al had a great post on property note topics.  Here are some additional thoughts:

First, although I agree with almost everything he says on the subject, I disagree with Al's conclusion that students should stay away from writing about takings.  I don't think that students should write notes on recent Supreme Court cases, period.  The Supreme Court is already over-covered in legal academia, and most law students don't have enough background knowledge to add much to the discussion.  There are a lot of other subjects where a good note can add a great deal to the academic literature, and I hate to see a student waste time on, say, another critique of Kelo.

This said, there are lots of interesting takings note topics out there.  I bit off a big takings-related note topic ("Defining "Property" in the Just Compensation Clause") and had a good time with it, though it helped that I had Bill Treanor to advise me.  If I was doing a takings note now, though, I'd focus on state cases and Federal Circuit/Court of Claims takings cases.  Takings scholars tend to pretend that the Supreme Court is the only court with anything interesting to say about takings (I, personally, am completely guilty of doing this).  But there are tons of fascinating takings cases out there from other courts.  Many states have unique takings doctrines that differ from the Supreme Court's doctrine.  The Court of Claims and Federal Circuit hear virtually all of the important takings claims against the United States, and have developed a rich takings jurisprudence of their own that in places bears only passing resemblance to Supreme Court doctrine.  I'm very confident that a student who knows the basics of Supreme Court takings doctrine could take a close look at the takings jurisprudence of any given state or of the Fed Circuit and easily come up with something interesting to talk about.

This last point highlights a great opportunity for student notewriters in any subject.  There is a lot of opportunity to take a close look at any given area of the law and explain clearly and cogently how it works in any given jurisdiction (other than the Supreme Court!).  Law professors don't do this type of doctrinal scholarship much anymore, and there is a great need for it.  Some Law Review editorial boards unfortunately often require notes to have national importance.  I think this requirement is silly, but it isn't that hard to give a jurisdiction-specific study a national gloss by working in comparisons to other jurisdictions.

Another broad subject to look at are common interest communities.  I often hear from practicing lawyers that they are always dealing with issues relating to homeowners' association covenants.  Though this is changing a bit, law professors don't write enough in this area, leaving it wide open for students.  One of my students is publishing a note on covenants against sex offenders, which have started to spring up all over the place.  Litigation between associations and homeowners present all sorts of cool issues.  Find an interesting case on an issue and expand your research to find out what other courts are saying about it.  Or do an empirical study -- what are owners and associations fighting about in your jurisdiction?  There also are some interesting ADR suggestions to be made to avoid this kind of litigation altogether.  On the constitutional side of things, there is a big question about whether homeowners' associations should be considered state actors -- the New Jersey Supreme Court recently decided a case on this issue.  Relating to both covenants and zoning, I've seen a lot of recent press discussion on issues relating to multigenerational families and how they often violate single-family residency restrictions.

Another interesting property-related constitutional subject is the Establishment Clause issues presented when a municipality takes property for transfer to a religious institution.

Property in the human body is always an interesting topic.  Both the European Court of Human Rights and the Second Circuit have recently decided cases on this issue.

On the nuisance front, an interesting topic might be looking at invasive species as nuisances.

UPDATE:  Here are some additional ideas:

Kurt Paulsen sends along this great suggestion:

One of the more contentious land use disputes of late concerns "big box" retail stores and community opposition to them.  One of the ways communities try to fight "big box" stores is with size caps.  These can be absolute caps (less likely) or additional requirements for larger stores.  (e.g. more stringent review procedures and/or design guidelines or the recently passed Chicago ordinance requiring a "living wage" in stores over 90,000 square feet.) 

In terms of property scholarship, I really haven't seen much on these.  There was a recent article on SSRN about the latent Commerce Clause problems potential in size cap ordinances.  But it would be interesting to see how state courts, especially, have dealt with these anti-big-box policies on equal protection grounds.

My colleague Juliet Moringiello mentioned that there was some interesting discussion at the recent ABA meeting of property issues that arise in Massive Multiplayer Online Games ("MMOGs").  Players in MMOGs have created real-world markets (apparently worth billions of dollars) for property/attributes/power/other stuff for use in the virtual world of MMOGs.  This creates a conflict between players and the creators of the games, who try to keep ownership of everything created in their virtual world through End User License Agreements.  South Korea and Taiwan have passed legislation making infringement of virtual property a crime, and South Korea's legislation gives the right to virtual property to the player, not the game creator.  Similar legislation is pending in China.  This would make a fascinating note topic, especially for a student familiar with MMOGs.  (Of course, playing time conflicts with writing time!).

On the adverse possession front, the European Court of Human Rights recently held that England's adverse possession law led to an unlawful taking of property.  This result seems bizarre to me, and a note discussing the case would be very useful.

Ben Barros

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Dumb question: what do law professors do? Or in other words, what distinguishes a note from an article (save for length and pomposity, take that as you will). Or yet in other words, how to go from writing like a student (or from writing on student-like topics, as you propose) to writing like a professor (with or without the title). No need to post, just a question perhaps you would care to address in the future. DS Pensley

Posted by: DS Pensley | Aug 11, 2006 1:24:31 PM

Love the invasive species as nuisances topic. The multigenerational families as violations of single family covenants will make for entertaining reading, though I've got to think that argument will be tough to make out (estoppel? waiver? vagueness?).

And then someone could do something on the taro controversy at the University of Hawaii; there's more to do on Justice Alito's methodology of legal history....

Posted by: Al Brophy | Aug 13, 2006 3:18:48 PM

DS, that's a really good question that is worth some further thought. In this context, though, I think there are two big differences between students and profs that are relevant to note topics. First, students have only a relatively short period of time to write, so a note topic needs to be more focused than a professor's article. (That's not to say that profs can't and don't write focused pieces, but student work must be focused or it turns into a nightmare.) Second, professors have more background knowledge and experience. Combined with more time, this gives them more flexibility in subject matter. This isn't to say that articles written by professors are always better than student work. I've found some outstanding student notes out there, but every one of them was focused and reasonable in scope.

Posted by: Ben Barros | Aug 13, 2006 6:07:41 PM

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