Sunday, December 31, 2006


Happy New Years from Maui, where we're vacationing. Here's a photo from the beginning of a hike my daughter and I took yesterday.


Our quest was to climb from Lahainaluna high school (founded in 1831, it's the oldest high school west of the Rocky Mountains) to Pa'upa'u, a mountain where a giant "L" is carved into the mountainside (for the high school).   Above the "L" is the grave of David Malo, a Hawaiian poet and historian who attended the high school during the 1830s. Malo's best known work is Hawaiian Antiquities, describing the ancient culture.  The book is also important because it's one of the earliest books written in the Hawaiian language.  Malo was one of the architects of the Hawaiian constitution and bill of rights.  He was critical of the increasing control of the white immigrants over Hawaii and asked to be buried in the West Maui mountains "above the tide of the foreign invasion."

Back to yesterday's outing.  Unfortunately we did not reach the "L" or the gravesite due to defects in our hiking guidebook, which had a sketchy map and an inadequate textual description of the route.  But we went through fine grasslands and forest (mainly eucalyptus) and enjoyed tremendous views of Lahania, the ocean, and the nearby island of Lanai before we retraced our steps to the high school.  As we were leaving, we met with a administrator from the high school.  He was irritated with the author of our guidebook for a different reason.  Before publication of the last edition, he had told the author that hikers going through the high school campus needed to get advance permission from the high school, but nothing to the effect made it into the book.  Much of Maui is privately owned, and there are fewer public access trails here than I had expected to find.  Many areas are posted "kapu" (no trespassing).  One of the way private landowners of natural Maui make money is to license "eco adventure" companies, who escort their customers on hikes through private lands to see waterfalls, etc, and charge ridiculous prices -- $80 to $120 for several hours; $140 to $180 for full day hikes.

Jim Smith

December 31, 2006 in Travel | Permalink | Comments (1) | TrackBack (0)

Preservation Covenant at Carter's Grove Plantation

This morning's Seattle Times has this story about the sale of Carter's Grove Plantation near Williamsburg.  It has closed because of declining attendance and is now going on the market.  It will likely go into private hands.  The story talks about other historic homes (like Robert E. Lee's boyhood home in Arlington), which have also recently gone into private hands. 

Carter's Grove Plantation Here's a sample from the article, about the debate over whether sale of historic homes helps preservation:

In an escalating debate, some preservation experts argue that the best way to save the nation's most precarious historic houses may be to sell them to those who can afford to restore them, or at least keep them up, as private residences. If you look around the country, this isn't a problem, it's the problem," said Douglas Horne, a preservation consultant who advised Williamsburg on its decision to sell Carter's Grove.

The article says that although the plantation "will be protected by easements to prohibit subdivision,  there will be no requirement that Carter's Grove be open to the public." Sounds like the makings of a lesson in property class on the use of covenants and maybe the origins of a class on historic preservation.

More on Carter's Grove, including some stunning pictures, available here.

Alfred L. Brophy
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December 31, 2006 in Land Use | Permalink | Comments (2) | TrackBack (0)

Thursday, December 28, 2006

NY Court of Appeals Ruling on Property in Organs

The New York Court of Appeals has issued its ruling in Colavito v. New York Organ Donor Network, Inc.  I described the case in a previous post:

Widow of deceased donor gave both of his kidneys to his friend who was suffering from end-stage renal disease.  One kidney was sent to Florida for implantation into donee, but doctors determined that the kidney was damaged.  The doctors then requested the second kidney, but were informed that it had already been implanted into another patient.  The intended donee sued on a number of theories.  The district court granted summary judgment to the defendants.  The Second Circuit affirmed summary judgment on plaintiff's fraud count but certified questions regarding the donee's ability to maintain a private action against the defendants to the New York Court of Appeals.  Judge Jacobs dissented from the certification, asserting that under the facts presented, the intended donee was only entitled to one kidney.

In its opinion, the NY Court of Appeals answered the certified question by holding that plaintiff did not have any claim to the other kidney.  Slate (here) and the NY Sun (here) both have articles about the case.

Ben Barros

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December 28, 2006 in Property Theory, Recent Cases | Permalink | Comments (0) | TrackBack (0)

More on Cuban Property Claims

Here's a very interesting story from NPR on the problem of property claims for a post-Castro Cuba.

Eduardo Penalver

December 28, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 27, 2006

GAO on Eminent Domain

I missed it when it happened, but in November the GAO issued a report on eminent domain.  I haven't had a chance to read all of it yet, but it looks interesting.

Ben Barros

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December 27, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 26, 2006

Lahavi and Licht on Eminent Domain and Land Assembly

Amnon Lahavi and Amir N. Licht (Radzyner School of Law) have posted Squaring the Eminent Domain Circle: A New Approach to Land Assembly Problems on SSRN.  Here's the abstract:

The prevailing land use regulation and land tax laws in the United States make the Kelo v. City of New London case and the use of eminent domain for private development particularly dramatic, especially as compared to other countries.

We propose a novel solution for “squaring the eminent domain circle” when large-scale, for-profit development projects require the assembly of land from numerous private property owners. Such anticommons situations may justify government intervention through eminent domain yet they often leave landowners under-compensated. This may skew the incentives for initiating land development projects and lead to considerable injustice.

While the taking component of eminent domain may need to remain an involuntary non-market transaction, we propose a market-based mechanism for the compensation component in the form of a Special-Purpose Development Corporation (SPDC). Offering condemnees a choice between receiving pre-project “fair market value” compensation or pro rata shares in the SPDC would make it more likely that compensation is closely linked to true economic value of the land and, consequently, that land assembly projects are both more just and genuinely social-welfare maximizing

Ben Barros

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December 26, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Miceli and Sirmans on Holdouts, Sprawl and Eminent Domain

Thomas J. Miceli and C.F. Sirmans (University of Connecticut) have posted The Holdout Problem, Urban Sprawl, and Eminent Domain on SSRN.  Here's the abstract:

Developers attempting land assembly often face a potential holdout problem that raises the cost of development. To minimize this extra cost, developers will prefer land whose ownership is less dispersed. This creates a bias toward development at the urban fringe where average lot sizes are larger, resulting in urban sprawl. This paper examines the link between the holdout problem and urban sprawl and discusses possible remedies, including the use of eminent domain for urban redevelopment.

Ben Barros

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December 26, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Pursuit of Happyness

Here is a "property" movie some of you may wish to see over the semester break.

Star Parker has a review of a Christmas movie that is about poverty and wealth, hard work and achievment, and asking how to succeed rather than railing in envy against those who have succeeded. My family went to see the Nativity Story on Christmas Eve, and I was stunned to tears by the preview for Pursuit of Happyness. My wife and I will be going to see this remarkable film later this week. It is a message we need here in America. Here is an excerpt from Star Parker's review:

At a time when the media and the politicians are incensed at record breaking incomes on Wall Street, here is a story of a poor black man who wasn't asking why are they making so much, but wanted to know how he could do it.

His life and his thinking focus and crystallize when he meets a guy parking his red Ferrari. He asks him two questions: "What do you do? And, how do you do that?" He was a broker.

Maybe if our new Democratic leaders catch this film over the holiday break it will help them to start asking the right questions when they reconvene.

The politics of envy do not point to the way out of poverty. Character, aspirations, hard work, and freedom do.

There's also the issue of faith. This is by no means pushed in any heavy handed way in the film. But nevertheless it is there and it is important to notice.

The shelters where Gardner found temporary safe harbor for himself and his son were operated by ministries. And, when he was at rock bottom, when it seemed like things could not get worse, there he was in the shelter church, bolstering his faith to go on.

I can't wit to see this film.

Rick Duncan

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December 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, December 25, 2006

"A Tale for Slavery's Children"

E.J. Dionne's column, about slavery and how "the Christmas story overturns our daily understandings of power and privilege," appears in Today"s Washington Post. Here is an excerpt:

Callahan's remarkable book[Allen Dwight Callahan, The Talking Book: African Americans and the Bible] published this year by Yale University Press, describes the rich and intense relationship between the Bible and the African American imagination. But even more powerfully, it suggests -- without making the case directly -- that the reading of the Christian tradition offered by African Americans is as close as any to the authentic meaning of Christianity....

It is hard, I think, for anyone nurtured in the Christian or Jewish traditions to dispute Callahan's claim that the Bible "privileges those without privilege and honors those without honor" and that it has a "penchant for bringing peripheral people to the center of history."

"The God of holy scripture has made slaves no less than their masters in the divine image and likeness," Callahan writes. "The Apostle Paul had declared that master and slave were equal in God's sight. And in the book of Exodus, God had freed the ancient Hebrews from bondage in Egypt; the liberation of slaves had been God's will. These were ideas at least as revolutionary as any Jeffersonian proposition."

I am not normally a fan of Dionne--even though we both grew up in Fall River, Massachusetts and are both Red Sox fans--but this is an interesting piece.

Rick Duncan

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December 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Saturday, December 23, 2006

Are blogs naughty or nice?

Eugene Volokh says it depends.

Rick Duncan

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December 23, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Friday, December 22, 2006

"Medium Rare Scrutiny"

I need a break from grading Con Law exams, so I thought I would share with my fellow Property Professors a gem of an article describing the Supreme Court's "tiers of scrutiny" for reviewing laws under the Constitution. Many of you may try to introduce the class to strict scrutiny, intermediate scrutiny, and the rational basis test when teaching some aspect of Constitutional Law to 1L property students. And if you are looking for an article that describes this area of the law--including the fact that the three standards of review are, in reality, many more than three--you need look no further than Prof. Michael Stokes Paulsen's six-page masterpiece, Medium Rare Scrutiny, 15 Const. Comm. 397 (1998).

My students love this article, because it is both informative and hilarious. Paulsen compares the Court's tiers of scrutiny to the way he barbecues steak in his backyard in Minneapolis on his Weber grill. Thus, he speaks of Rare Scrutiny, Medium Rare Scrutiny, Medium Scrutiny, Medium Well Scrutiny, and Well Done Scrutiny. Here is a short excerpt from the article, one describing "Romer-type rational basis with a bite" scrutiny, that should give you a feel for Paulsen's magic:

But Romer-type scrutiny is probably better labeled "rare to medium rare," or--if we're really being honest--"medium-well-to-well-done-but-call-it-rare-to-medium-rare-because-that's-hipper-and-I-don't-want-to-admit-what-I'm-really-doing" scrutiny. As everyone knows, rational basis with bite is really just another way of saying "singe the statute." As Gerald Gunther might (or might not) put it, such scrutiny is "rare" in theory and fatal in fact--dead, dead meat. It's amazing how many times "rare to medium rare" ends up being burned, when the Supreme Court is barbecuing the Constitution.

This is one of my all time favorite articles. If you get bored grading your exams, take a ten minute break and read Medium Rare Scrutiny. It will clear your palate for the next batch of blue books.

Rick Duncan

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December 22, 2006 in Articles | Permalink | Comments (0) | TrackBack (0)

See You in DC?

I'll be blogging a little bit over the next week, but with the holidays coming up thinks will be a little light.  Al and I will both be at the AALS conference in DC.  If you're going to be there, please say hello.  I'll be at the property-related panels.  I'll also be at the Blawgers' Ball at Cloud on Wed. night.  For ease of identification, here are some photos:



Brophy: Brophy_pic_1

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December 22, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Thursday, December 21, 2006

More on Kelo's Christmas Card

Here is an article that includes a picture of Kelo's Krabby Kard.

Her attitude is less than gracious, but it does illustrate the destructive force that eminent domain decisions can bring to bear on ordinary persons whose homes are taken and whose lives are turned upside down. Even generous "just compensation" cannot always heal the wounds that are sometimes caused when homes are taken. It reminds me of Holmes' famous statement about adverse possession:"The true explanation of title by prescription seems to me to be that man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, cannot be displaced without cutting at his life."

It seems that the City of New London's decision to take Susette Kelo's "little pink house" was one that cut at her life.

Rick Duncan

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December 21, 2006 in Takings | Permalink | Comments (1) | TrackBack (1)

Wednesday, December 20, 2006

Susette Kelo's Holiday Wishes

From the Hartford Courant:

Susette Kelo's holiday cards feature a snowy image of her pink house and a message that reads, in part, "Your houses, your homes, your family, your friends. May they live in misery that never ends. I curse you all. May you rot in hell. To each of you I send this spell."

The cards were conceived and produced by a friend of Kelo's and sent to city officials and members of New London's development agency.

Kelo said she also considered sending the cards to five U.S. Supreme Court justices who ruled in June 2005 that New London had the right to take homes in the Fort Trumbull neighborhood to make way for a riverfront project slated to include condominiums, a hotel and office space.

Read the article for some amusing reactions from the recipients.

Thanks to Emily Farris for the tip.

Ben Barros

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December 20, 2006 in Takings | Permalink | Comments (4) | TrackBack (0)

Tuesday, December 19, 2006

Tate on Ownership and Possession in the Early Common Law

Joshua Tate of SMU's Dedman School of Law has posted Ownership and Possession in the Early Common Law, forthcoming in the American Journal of Legal History, on ssrn.  Here is Tate's abstract:

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language.

This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases. After surveying the current debate, the Article then turns to the advowson writs, which have not yet been studied as a possible example of Roman law influence. Finding some evidence of the ownership/possession distinction in the advowson writs, the Article comes to the conclusion that the possibility of influence from the ius commune is greater than Milsom thinks.

Al Brophy

December 19, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Meaning of "Lawn Jockey"

Back on September 21, Al Brophy posted a note on the history of lawn jockeys in which he noted differences of opinion as to their possible status as a remnant of white supremacist attitudes.  Evidence favoring the less benign conclusion can be found in a recent post on Slate by Seth Rosenthal, in which he argues that some federal judges are improperly granting summary judgment in cases where, in Rosenthal's view, a reasonable jury could have found for the non-moving party.  One example he cites is an Eighth Circuit case in which "the majority concluded that a black Wal-Mart employee whose supervisor routinely used racially offensive language, including repeatedly calling him a 'lawn jockey,' didn't present enough evidence to get his claims of racial discrimination to a jury."  Notwithstanding the court's decision, it is probably safe to conclude that the supervisor whose conduct was at issue did not view lawn jockeys as memorials to the Underground Railroad.  The case is Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1033 (8th Cir.), rehearing and rehearing en banc denied, 452 F.3d 1020, 1021 (8th Cir. 2006).

Carl Christensen
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December 19, 2006 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Dana on Reframing the Eminent Domain Debate

David A. Dana (Northwestern University Law School) has posted Reframing the Debate over Eminent Domain Reform on SSRN.  Here's the abstract:

As a purely theoretical matter, we can predict that a flat ban on all exercises of eminent domain will result in some less development in urban areas (poor or not poor) and some more development in exurban or rural areas. We can also predict that a ban on only economic development condemnations (which allows so-called blight or blight removal condemnations to continue as before) will result in some more development in poor urban areas (but not necessarily in urban areas as a whole) and in exurban or rural ones, and less development in suburban areas (at least non-poor suburbs). We can say almost nothing about how much less or how much more. Moreover, even these minimal predictions must be qualified because restrictions on eminent domain may lead localities in fragmented land markets to rely more heavily on alternative means to reduce the costs of land assembly for developers, such as cash and infrastructure subsidies or zoning exceptions, particularly in markets where the status quo ante was imperfect competition among the localities for new development.

The qualitative claims about the nature of the development that will be encouraged or discouraged as a result of eminent domain "reforms" lack both theoretical and empirical support. Stated simply, there is no defensible way to categorize as good or bad, economically viable or non-viable, efficient or inefficient, socially beneficial or socially harmful, the development in urban areas that will be lost as a result of a flat ban on eminent domain or (in poor urban areas at least) that will be gained as a result of a ban on economic development condemnations coupled with continued allowance of blight condemnations. One reason this is so is that the two legal tests for the kinds of "public use" that are sufficient for the exercise of eminent domain - the economic development as public use test and blight removal as public use test - do not necessarily select for "good" new development according to any intelligible criteria of goodness.

In sum, we are left with a rather unsatisfying situation: a lack of any assurance as to whether there will be any net benefits, in terms of more "good" development and less "bad" development, as a result of either of the two eminent domain reform alternatives currently on the political agenda, namely, a flat ban (the Florida approach) or a ban on only economic development condemnations coupled with continued allowance of blight condemnations (the approach in most reforming states). Given this unsatisfying situation, and assuming we do care about poorer urban areas, we need to ask, we should ask: is there a different kind of eminent domain reform for which we would have more, at least some more, assurance that it will produce more good development and less bad development in those areas? The debate over eminent domain reform needs to be re-framed.

Ben Barros

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December 19, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, December 18, 2006

Supreme Court Approval Ratings

Over at the VC, Orin Kerr passes on a report of Supreme Court approval ratings from a recent poll. Here are some of the individual results:

Chief Justice Roberts, 36% favorable / 26% unfavorable
Justice Thomas, 48% favorable / 36% unfavorable
Justice Ginsburg, 37% favorable / 35% unfavorable
Justice Alito, 35% favorable / 37% unfavorable
Justice Scalia, 35% favorable / 35% unfavorable

Way to go, Justice Thomas! Forty more years!

But seriously, my personal view as a conlaw scholar is that Justice Thomas writes some of the most thoughtful and well-reasoned opinions of all. I wish his views had prevailed in Kelo.

Rick Duncan

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December 18, 2006 | Permalink | Comments (5) | TrackBack (0)

Case Method in Law School Teaching

Over at the VC, David Post has some commentary on an issue near and dear to my heart -- using unedited cases in law school.  His basic position is against.  In the comments to his post, I've stated my position to the contrary.  But anyway, if you're interested in this issue, read the whole thing.

Ben Barros

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December 18, 2006 in Law Schools, Teaching | Permalink | Comments (1) | TrackBack (0)

Times on Building Deadlines

Yesterday's NY Times has an interesting story on a Florida development where purchasers were originally given three years to build their homes.  The development was designed following new urbanist ideas, so the building deadline was intended in part to get some density quickly.  In part because of a decline in prices, which left a lot of the lots in the hands of speculators who can't now unload the property, most of the lots are unbuilt.  So the developer has now extended the deadline to build for two years.  There's a lot of good stuff in the article, but this extension issue seems particularly interesting -- the people who actually built on time were stiffed, though it's not clear to me that they'd be better off if the original deadline was enforced -- if that happened, many of the lots would have been forfeited, and the delays might have been even greater.

Ben Barros

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December 18, 2006 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)