Sunday, September 17, 2006

Fletcher on the Marshall Trilogy

Marshall Matthew L.M. Fletcher of the Michigan State University College of Law has recently posted The Iron Cold of the Marshall Trilogy on ssrn.  "The Cold Iron of the Marshall Triology," which takes its title from a Louise Erdrich poem, will appear this year in the North Dakota Law Review.

Here is Professor Fletcher's abstract:

Students of American Indian law cannot -- and should not -- escape from reading the three famous opinions of Chief Justice John Marshall that expounded for the first time in the halls of the United States Supreme Court the bases for federal constitutional common law - the opinions we now refer to as the "Marshall Trilogy." These three decisions, Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, identified the contours of American Indian law as they remain today in the modern era. These opinions are the house in which American Indian advocates, leaders, and policymakers rise each morning -- and it is house filled with an iron cold of the deepest hour.

This essay is an attempt to reexamine the Trilogy for their continuing relevance to students of modern American Indian Law. The pedagogical value of the Marshall Trilogy goes far beyond the mere holdings of the cases. That is not to say the holdings are not significant - they are. But, as Justice Baldwin wrote in Cherokee Nation, the "reasons" for the holdings are more significant than the holdings themselves. The foundations of the current debates over plenary power, state authority in Indian Country, the special canon of construction for Indian treaties, implicit divestiture, the trust doctrine, the political status of Indians and Indian tribes, and others are all to be found within the Marshall Trilogy. For a new student of Federal Indian Law, these three cases are a microcosm of the entire course to come.

This essay reassesses the Trilogy using several methodologies of legal analysis, including legal history, law and literature (and mythology), and law and economics.

I'm still reading this; he engages with Eric Kades' article on Johnson, which has gotten a lot of attention in recent years.  I hope to set aside some time later in the semester to talk a little bit about Fletcher's important article.

The image of John Marhsall is from our friends at wikipedia.

Alfred L. Brophy
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September 17, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 14, 2006

Intersection of Environmental Law and Land Use

The Pace Environmental Law Review has an issue available online titled Exploring the Intersection of Environmental and Land Use Law: A Special Issue of the Pace Environmental Law Review, Featuring Commentaries and a Collection of Articles by Professor John R. Nolon.  Looks like interesting stuff.

Ben Barros

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September 14, 2006 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Call For Authors: New CAP Series on Comparative Law

Andrew J. McClurg (University of Memphis) is editing a new series of comparative law texts for Carolina Academic Press.  They are seeking authors for various subjects, including property:

Dear Colleagues:

Carolina Academic Press (CAP) is beginning a series of comparative law texts called the “Contextual Approach Series” (CAS).  I’m serving as editor.  CAP and I are looking for U.S. law professors in a variety of subject areas to serve as lead authors for entries in the series.

The goal of the CAS is to create a series of interesting, student-friendly, self-contained, accessible comparative law books that—using co-authors from the U.S. and two other countries—clearly and concisely explain how law works in practice around the world in different subject areas.  The books will be paperbound and roughly 200 pages.
The first book, Practical Global Tort Litigation: U.S., Germany and Argentina (McClurg, Koyuncu and Sprovieri) (PGTL), is in publication production and available for use as a model.  Detailed guidelines for authors in the series also are available.

As the title of the series suggests, each book will be based on a set of case or problem facts raising prototypical, universal legal issues in the particular subject area. This contextual approach is intended to bring comparative law to life and make it digestible and understandable to law students by giving them a foundation to attach the law to.

As an example, PGTL takes a simple products liability case involving a shattering glass jar through the legal systems of the U.S., Germany, and Argentina.  Other examples: a criminal law text could take a simple theft case through the U.S. and two other legal systems; a family law text could take a divorce problem through the U.S. and two other systems; a criminal procedure book could compare the handling of a search, arrest and confession in the U.S. and two other systems; a wills and trusts book could address property disposition upon death in the U.S. and two other legal systems, etc.

The three co-authors will explore and analyze issues raised by the problem facts from the perspective of their respective legal systems in side-by-side country-specific sections.

The U.S. author will serve as the lead author and will enlist, with the editor’s help, the two non-U.S. authors.  The U.S. author has primary responsibility for supervising, editing, and integrating the contributions of the non-U.S. authors.  This will require learning the relevant law of the two non-U.S. countries.  In selecting countries for study, one goal is to choose legal systems that are representative of major world regions, legal traditions or both.

Prospective authors should possess the following: (1) expertise in the relevant subject matter from a U.S. perspective; (2) excellent writing and composition skills; (3) dependability and reliability; (4) an eye for detail in consistency of organizational structure, style, formatting, and citation style; and (5) the time and resources to pursue the project to completion on deadline (roughly 18 months from signing of contract).

A lack of experience or background in comparative law is not a bar if you possess the above qualifications and an interest in studying and learning about other legal systems.  The non-U.S. co-authors are expected to provide the primary expertise regarding foreign law.  I had no prior background in comparative law before writing PGTL with Adem Koyuncu in Cologne and Luis Sprovieri in Buenos Aires.  On the other hand, as a former faculty member at the Florida International University College of Law, I did have access to international resources, which proved essential.

All subjects are open to consideration, although we are particularly interested early on in first-year courses and core upper-level courses.

If you have an interest in becoming an author in this series, please send a preliminary inquiry to that includes: (1) the subject area you would be interested in writing about; (2) a c.v.; and (3) any early ideas you might have regarding a set of problem facts and candidates for the two non-U.S. countries (and co-authors in those countries).

I look forward to hearing from you.  When I was teaching at FIU and living in Miami, I became convinced that comparative law will be a cornerstone of U.S. legal education.  Writing GPTC was one of the most interesting experiences of my academic career.  I learned more than in any year since my first year of law school.


Andrew J. McClurg
Herbert Herff Chair of Excellence in Law
Cecil C. Humphreys School of Law
The University of Memphis

Ben Barros

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September 14, 2006 in Books | Permalink | Comments (0) | TrackBack (0)

Steal This Book: They Did. And Hippie Thoughts About Property Rights


Recently I did a search for Abbie Hoffman's Steal This Book.  (I know, I know, I should be working on my monument law essay, but I was taking a break.)  I've heard about Steal This Book for years, but I'd never known what it was about.  You know what: it's available to read in full text on the net.  Hmm, why doesn't that surprise me?  It's on a tenants' rights website, which propertyprof readers may find of particular interest.

What did surprise me is the content of Steal This Book.  I might have guessed it would be about opposition to property rights.  It's not what you might expect.  At least, it's not what I expected.  What I now realize is that it's sort of a how-to manual to put one over on the "system."  Some of it's mildly amusing; lots of it is downright anti-social; parts of it are really scary.  It's an artifact of the late 1960s.  Historians trying to recover the mentality of 1960s radicals will be turning to it.

I didn't know that Hoffman had written parts of it while in jail, which he identifies as "that graduate school of survival.  Here you learn how to use toothpaste as glue, . . . and build intricate communication networks.  Here too, you learn the only rehabilitation possible--hatred of oppression."  Hmm.

Listen to how dated this stuff from the introduction on property rights sounds:

The first section--SURVIVE!--lays out a potential action program for our new Nation.  The chapter headings spell out the demands for a free society.  A community where the technology produces goods and services for whoever needs them, come who may. It calls on the Robin Hoods of Santa Barbara Forest to steal from the robber barons who own the castles of capitalism.  It implies that the reader already is "ideologically set," in that he understands corporate feudalism as the only robbery worthy of being called "crime," for it is committed against the people as a whole. Whether the ways it describes to rip-off shit are legal or illegal is irrelevant.  The dictionary of law is written by the bosses of order.  Our moral dictionary says no heisting from each other.  To steal from a brother or sister is evil.

Then there are some mildly amusing lines about how to get free land:

Continue reading

September 14, 2006 in Books | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 13, 2006

Race, Politics and Eminent Domain

Recent guest-blogger Rachel Godsil has an interesting post at CoOp on the impact of race and eminent domain on a Brooklyn congressional race.

Ben Barros

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September 13, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Parlow on Eminent Domain and Affordable Housing

Matthew J. Parlow (Chapman University - School of Law) has posted Unintended Consequences: Eminent Domain and Affordable Housing on SSRN.  Here's the abstract:

The continuing controversy regarding Kelo v. City of New London demonstrates that there are a number of problems and tensions associated with eminent domain that entice scholars. This article addresses one such problem: the singular link between eminent domain and affordable housing. Though rarely discussed, this link reveals a long history of cities' use of their eminent domain power to advance development projects that rarely include affordable housing. Moreover, when cities condemn property through eminent domain to further new development projects, they often do so in a manner that undermines many of the goals of building more affordable housing. As the need for affordable housing increases, cities' taking of private property for “public purposes” has helped decrease the number of affordable housing units instead of helping keep up with the demand. Moreover, the two competing views in the ongoing debate regarding the proper definition of a constitutional “public use” both marginalize affordable housing. This interplay between eminent domain and affordable housing raises concerns from a social justice perspective and an economic perspective. This article analyzes the sources and issues that have led to the problems stemming from the link between eminent domain and affordable housing and highlights some potential solutions.

Ben Barros

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September 13, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Ruhl on Lucas and Background Principles

J.B. Ruhl (Florida State University - College of Law) has posted The Background Principles of Natural Capital and Ecosystem Services — Did Lucas Open Pandora's Box? on SSRN.  Here's the abstract:

In his majority opinion in Lucas v. South Carolina Coastal Council, Justice Scalia established the relevant background principles of state property law as the reference point for testing whether public regulation or private property goes so far as to constitute a categorical taking of property. He also confirmed, however, that those background principles evolve with new knowledge and changed circumstances.

Over the past decade, the discipline of ecological economics has produced a burgeoning body of research illuminating the significant economic value that functioning ecosystems, acting as natural capital, supply humans in the form of direct and indirect ecosystem services, such as the capacity of coastal wetlands to mitigate storm surges. This article explores how these findings fit into the Lucas calculus.

Based on work by Professor John Sprankling, the Article concludes that the background principles of property law have resisted integrating concepts like natural capital and ecosystem services into property doctrine. On the other hand, based on work by Professor Michael Blumm, the Article confirms that the amassing body of research about natural capital and ecosystem service values is precisely the kind of new knowledge that ought to transform those background principles. The Article concludes by discussing two recent cases in which courts have done exactly that—to integrate knowledge about natural capital and ecosystem service values in order to apply common law property doctrine in ways contrary to the established background principles. If this trend spreads, Lucas will indeed have opened a Pandora's box, with impacts on the common law it is difficult to imagine the Justice Scalia and majority had in mind.

Ben Barros

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September 13, 2006 in Land Use, Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Monday, September 11, 2006

Research Canons For Property Law

PrawfsBlawg has a great new series of posts on the research canons in different areas of the law.  Here's an excerpt from Matt Bodie's post explaining the basics of the idea:

The purpose of this project is to get input from you, our readers, about the most important works of scholarship in the various areas of legal inquiry.

Unlike other disciplines, most law academics do not have an advanced degree in "law."  For students pursuing a Ph.D in areas such as economics, history, or social psychology, they must pass comprehensive exams showing that they have a broad knowledge of the most important works in the field.  It is only after comps that students go on to complete their specialized dissertation research.

Legal academia assumes that entry-level candidates and new scholars have done the background research necessary for their area of expertise.  But it is left to the individual to get this knowledge.  Certainly, the J.D. provides a baseline, and mentors are helpful in providing further direction.  But there is nothing akin to comps that sets forth a comprehensive listing for new folks to follow.  Many of us have heard the question, in the AALS interview, in the job talk, or as a new scholar presenting a paper: "Well, of course, you have read the work of Prof. X in this area, right?"  Failure to respond appropriately to this question may raise eyebrows and cast doubt on the scholar's research.

The Research Canons project is intended to fill this gap.

Property and Real Estate will be up for canonical treatment on Wednesday, 9/13.  [UPDATE: the property canons post is now up on PrawfsBlawg].  Property isn't the most cohesive of legal subjects, so I suspect the list will be all over the place.  I'll give this more thought over the next few days, but here are some of my candidates:

The Classics of the Moral and Political Theory of Property

Locke, On Property
Rousseau, Discourse on Inequality
Bentham, The Theory of Legislation
Marx, Communist Manifesto

Conceptualizing Property Rights

Wesley Hohfeld's Fundamental Legal Conceptions
Thomas C. Grey, “The Disintegration of Property”
Guido Calabresi & A Douglas Melamed, “Property Rules, Liability Rules, and Inalienability:  One View of the Cathedral"

Great Contemporary Work on Property Theory

Margaret Jane Radin, "Property and Personhood" and Contested Commodities
Joseph William Singer, “The Reliance Interest in Property”
Hernando de Soto, The Mystery of Capital
Charles A. Reich, “The New Property”
Milton Friedman, Capitalism and Freedom
William Fischel, The HomeVoter Hypothesis
Ronald Coase, "The Problem of Social Cost"
Garrett Hardin, "The Tragedy of the Commons"
Harold Demsetz, "Toward a Theory of Property Rights"
Lots of articles by Carol Rose and Richard Epstein -- it is hard to pick just one or two

Takings and Constitutional Property

James Madison, "Property"
Joseph Sax, "Takings and the Police Power"
Frank Michelman, "Property, Utility and Fairness"
Bruce Ackerman, Private Property and the Constitution
Richard Epstein, Takings
William Michael Treanor, "The Original Understanding of the Takings Clause and Political Process"

Ben Barros

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September 11, 2006 in Books, Law Schools, Natural Resources, Property Theory, Recent Scholarship, Takings | Permalink | Comments (2) | TrackBack (0)

The Day I Finally Understood What My Grandfather Was Talking About

American_flag_2When I was in college, my grandfather and I had some conversations about the American flag.  He was a World War II veteran, and took the flag as a symbol very seriously.  I was more ambivalent, not disliking or disrespecting the flag itself but suspicious of the often mindless patriotism that seemed to be associated with the flag as a public symbol.  Five years ago, living in the West Village about a mile and a half north of the World Trade Center, my view of the flag radically changed.  I'm still not a fan of empty-headed flag-waving patriotism, but to me the flag now symbolizes something that to a WWII veteran like my grandfather would be self evident:  that despite our profound differences and the every-day petty squabbling of our political class, we can stand as one when we need to.

Ben Barros

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September 11, 2006 | Permalink | Comments (0) | TrackBack (0)

Friday, September 8, 2006

Takings in Venezuela

Ben's link to Ilya Somin's post on Volokh reminded me that last Sunday's New York Times carried an article describing the proposed seizure of two posh private golf clubs in Caracas for conversion into housing for the poor.  The article also describes the seizure of apartment complexes and other buildings from their private owners to provide accommodations for the poor and lower-middle classes of Caracas.  "Just and opportune" compensation is afforded, says a government official.  Were this to occur in the US, there is no doubt that such seizures, accompanied by just compensation, would be for a public use.  The interesting twist is to note the effect on Caracas's housing market: "Landlords have flooded the market with aprtments for sale, fearful of the measures, some in effect and others under consideration, that would allow more expropriations and bolster the rights of tenants and squatters.  Rentals are so scarce that rents have skyrocketed to as much as $7,000 a month for a three- or four-bedroom apartment near the two golf courses." 

Calvin Massey

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September 8, 2006 in Land Use, Takings | Permalink | Comments (0) | TrackBack (0)

Taking From the Rich to Give To The Rich

Ilya Somin at the VC has a very interesting post on the attempted use of eminent domain to take a private golf course to make it available to residents of a wealthy Long Island town.

Ben Barros

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September 8, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, September 7, 2006

Reparations Pro and Con

Reparationsproandcon_1 Been at APSA and finishing up some stuff on monument law, aloha jurisprudence, and the latest on rankings (of secondary journals) and on the implications of bar pass rates for ranking of law schools.  So I've been quiet.  I'll be talking more about some of that stuff shortly.

Because Reparations Pro and Con is now available I thought I'd post a little about it.  As I said back in June when I finished up reading the page proofs,  it's a book I struggled with for a number of years and the more I think about reparations, the more complex they seem to become. Reparations talk involves lots of issues central to American history and to law.  It reminds me of the statement of Joe Strummer, formerly of The Clash, which was widely publicized at the time of his death in December 2002, that "If you ain't thinkin' about [hu]man[s] and God and law, then you ain't thinkin' about nothin'."  Reparations talk combines all three of those and a lot more.

My favorite parts of Reparations Pro and Con are the beginning and the end--because the beginning sets up many of the issues at stake in reparations talk and the end pulls the strings together and tries to guess where this is all going.  It's about the gap between white and black wealth and about how we view American history: as a place of opportunity or oppression?  And how we think about opportunities today, as well.  There's a lot of other stuff in between--like what role, if any, the government should play in correcting for past injustices and whether it is fair to ask those who did not commit racial crimes to help correct the vestiges of them now. For propertyprofs, there are some great meta-issues, like the judiciary's role in taking land away from Native Americans

I think the reparations movement is moving in the direction of talking about the past, rather then asking for any kind of payments. So I'm predicting we're going to see more in the way of truth commissions, like the 1898 Wilmington Riot Commission and the Tulsa Riot Commission.  Some of this may happen through the work of individual historians (like Reconstructing the Dreamland).  And I think we're going to see more in the way of businesses and colleges investigating their past (like Brown University's Steering Committee on Slavery and Justice and the discussion at the University of Virginia about slavery on its campus).

Of course, there's a lot more in the book, including a chapter on the case against reparations and a little bit on cemeteries (and here) and monuments.  I hope you'll take a look at it and recommend it to your local library.  Here some more on the book at Oxford's website.

Alfred L. Brophy
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September 7, 2006 in Books | Permalink | Comments (1) | TrackBack (1)

Wednesday, September 6, 2006

Dehring and Halek on Building Codes and Hurricane Damage

Carolyn A. Dehring and Martin Halek (both of the University of Georgia) have posted Do Coastal Building Codes Mitigate Hurricane Damage to Residential Property? on SSRN.  Here's the abstract:

In this paper we explore whether increased coastal building standards imposed by federal and state level initiatives are effective in mitigating losses to coastal property. We first examine if the coastal building code regime under which a property is constructed affects the likelihood of hurricane induced residential property damage. Then, for those properties which incur hurricane damage, we examine whether the extent of damage is explained by the relevant coastal building code regime. Our analysis shows that those properties built following coastal building code changes associated with the National Flood Insurance Program were more likely to sustain damage relative to similarly located pre-National Flood Insurance Program construction. For those damaged properties, we find the extent of damage is greater for post-National Flood Insurance Program construction, where damage is increasing in the required base flood elevation. Our findings that federal and state mandated coastal building codes changes are ineffective as ex-ante mitigation of property losses from hurricanes are of significant concern, especially as population growth and real estate development continue in high risk coastal areas.

Ben Barros

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September 6, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Kowal on Just Compensation

Tim Kowal (Chapman University School of Law) has posted The Restitutionary Approach to Just Compensation on SSRN.  Here's the abstract:

In the wake of the Court's near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, "fair market value" standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the public utility of the project flows to the condemnee, providing him with value.

Determining just compensation is not merely the second half of the inquiry; in certain instances, it is an inextricable component of determining when a public use in fact exists, assuming a cost-benefit model. By analyzing condemnations that fail the public use standard set forth in the Michigan Supreme Court's County of Wayne v. Hathcock - that is, takings that generate only nonspecific and attenuated public benefits - we find that not only have the traditional policies against restitution been erased, but unless the project provides enough surplus gain to pay restitution to the condemnee, the project would not be feasible to begin with, and thus not in the public interest.

The paper also addresses the following question: once the developer is adequately incentivized to proceed with a publicly useful project, to whom do the surplus gains owe? Analyzing the utilitarian considerations of public interest, the property rights of the owner, and Lockean labor theory, the paper concludes that the condemnee is the only one with an cognizable claim to the surplus gains of the forced transfer.

Ben Barros

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September 6, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, September 4, 2006

More on Option ARMs

The cover story in this week's Business Week is about Option ARMs, a type of mortgage that I've posted on before.  The article is a little shrill, but has a good overview of the economics behind a mortgage that is very likely to lead to a large number of mortgage defaults over the next few years.

Ben Barros

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September 4, 2006 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Friday, September 1, 2006

Goodbye for now . . .

Many thanks to Al and Ben for giving me the opportunity to post these past two weeks on PropertyProf.  Having joined in however briefly, I am now even more impressed with PropertyProf's constant stream of erudition.  With the benefits of the many intriguing ideas bandied about on PropertyProf, I am off for a guest stint on Concurring Opinions this September -- visiting another blog neighborhood as it were.  I appreciate all the thoughtful comments and am looking forward to continuing the virtual conversation.

Rachel Godsil

September 1, 2006 | Permalink | Comments (3) | TrackBack (0)