Tuesday, January 16, 2007

Roark on Property Myths

Marc Roark, whose work we've mentioned previously, has a great post on property myths on his new blog, Livres Loi.  This is the first in a series.  Check it out!

Ben Barros

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

January 16, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Supreme Court Denies Cert in Didden

Per Ilya Somin, I understand that the Supreme Court denied cert in the Didden case that I've discussed previously.  Cert is always a low percentage play, but I'm disappointed that the Court didn't take the case.  On the other hand, maybe this is an indication that Chief Justice Roberts is taking my request that the Court stay out of the takings game for a while seriously.

Ben Barros

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

January 16, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Open Book v. Closed Book

When I first started teaching two years ago, I was a big fan of open book exams -- real life is open book, so why shouldn't exams be open book?  This year, I tried something different in my Property I class.  I made the exam closed book, and I gave four graded quizzes throughout the semester.  All of the quizzes were closed book; some were multiple choice and some were short-answer.  The result was a dramatic improvement in the overall performance (measured by quality of answer) on my final.  I'm not sure how much of the improvement to attribute to the quizzes and how much to the closed-book nature of the exam.  I suspect that both played a part.  Interestingly enough, the student feedback on the quizzes was very positive -- my students appreciated the early feedback, and the preparation for the quizzes put them in good shape to prepare for the final.  From now on, I'm going to use the same format -- graded quizzes, closed-book exam -- for all of my large classes, including Business Organizations.  The quizzes, of course, were some extra work, but the results were worth it.

Ben Barros

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

January 16, 2007 in Teaching | Permalink | Comments (1) | TrackBack (0)

Monday, January 15, 2007

Photograph In Memory of Martin Luther King Day

00199r Thought that propertyprofs might enjoy this photograph, from the Library of Congress' American Memory website.  The sign reads: "Colored Waiting Room" and "Private Property No Trespassing."  As dedicated propertyprof readers will recall, I particularly enjoy collecting examples of "Private Property" and "No Trespassing Signs."  Dedicated propertyprof readers will also recall that we often use Library of Congress photographs in illustrating our posts--because they're awesome and because they're in the public domain, as well.

In this case, we located the photograph through Seattle University Law Library's terrific website on Brown.

Alfred L. Brophy
Comments are held for approval,

January 15, 2007 | Permalink | Comments (0) | TrackBack (0)

Bezdek on Equity in Urban Revitalization

Barbara L. Bezdek (University of Maryland School of Law) has posted To Attain 'The Just Rewards of so Much Struggle': Local-Resident Equity Participation in Urban Revitalization on SSRN.  Here's the abstract:

Annually, Americans pour out their sympathy for people displaced from their communities by natural disasters such as fires, floods, and hurricanes. We respond, knowing the anchor that the concept of “home” supplies to body, soul, and family; we intuit the toll exacted by the loss of familiar walls, private homes and community-shared places. Yet, redevelopment policy and practice in the U.S. today relies upon the massive relocation of poor people and the destruction of poor people's neighborhoods with only token recognition of the costs and burdens imposed on the displaced. Although the devastation of community, family, and lives is just as complete when the disaster is the government-sanctioned wrecking ball, comparable sympathy is not commonplace for urban redevelopment refugees.

Urban land is being reclaimed from low-wealth residents by local governments through their active participation in the urban real estate market, through public/private partnerships rather than the exercise of constitutional police powers, with the purpose of engineering new urban territories and repopulating them with the wealthier classes. Although this social engineering is sometimes characterized, or justified, as a modern version of the pioneering that peopled the American plains with striving Europeans, the public policy to so restructure the territories of the central city wrongly allocates the costs of revitalization on the current residents, and distributes the benefits to others. This is the antithesis of governance for the general welfare.

The Article argues that public/private redevelopment of urban community space must be controlled by and directly benefit the affected city residents so that the displaced receive meaningful equity shares in the value-added redevelopment. I propose to recognize the meaningful claims of residents displaced by government-aided changes in urban land use patterns, through the allocation of equity stakes in the wealth generated by such city-supported urban redevelopment. This approach would update resident participation strategies in urban land use planning and regulation extant now for nearly sixty years, by recognizing with market value the legitimate interests of residents in the space they co-inhabit. This view is justified on three grounds: (1) the legal framework offered by property law recognizes numerous rights of persons residing in the path of municipality-assisted redevelopment, which currently are destroyed without acknowledgement or compensation, in the exercise of urban redevelopment powers; (2) important community interests of persons and communities are similarly destroyed, although they have yet to be recognized as interests in property, they could can and should be; and (3) equitable arguments of varying political stripes support claims for both recognition of property rights and development of appropriate remedies for the harms redevelopers inflict on present residents. Part IV proposes the creation of community equity shareholding to achieve community ownership, participation in decision-making, and material benefit from public/private urban redevelopment projects that displace long-term residents.

Ben Barros

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

January 15, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Bernard Herman: Town House

Herman_townhouse Been enjoying Bernard Herman's Town House: Architectual and Material Life in the Early American City, 1780-1830.  Here's the description from the UNC Press site:

In this abundantly illustrated volume, Bernard Herman provides a history of urban dwellings and the people who built and lived in them in early America. In the eighteenth century, cities were constant objects of idealization, often viewed as the outward manifestations of an organized, civil society. As the physical objects that composed the largest portion of urban settings, town houses contained and signified different aspects of city life, argues Herman.

Taking a material culture approach, Herman examines urban domestic buildings from Charleston, South Carolina, to Portsmouth, New Hampshire, as well as those in English cities and towns, to better understand why people built the houses they did and how their homes informed everyday city life. Working with buildings and documentary sources as diverse as court cases and recipes, Herman interprets town houses as lived experience. Chapters consider an array of domestic spaces, including the merchant family's house, the servant's quarter, and the widow's dower. Herman demonstrates that city houses served as sites of power as well as complex and often conflicted artifacts mapping the everyday negotiations of social identity and the display of sociability.

You'll love it.  Propertyprofs may recall Herman's delightful 1992 book The Stolen House.  I read it shortly after I started teaching in 1994 and highly recommend it as a combination of legal history and architecture.  I'll talk about it sometime; that book deserves an entry all its own.

Alfred L. Brophy

January 15, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, January 14, 2007

West Blocton, Alabama Cemetery

Westblocton Dedicated propertyprof readers will recall that I sing the praises of my hometown newspaper, the Tuscaloosa News, every now and then.  We're often treated to terrific human interest stories on cemeteries.  (Like this one, by my friend Cathy Lee, last summer. [Free registration required]) 

So what to my wondering eyes did appear in this morning's Tuscaloosa News?  This awesome story by Ben Windham on the West Blocton Cemetery.  Here's a sample:

Hardly anyone was on Main Street in West Blocton, with its rows of empty storefronts, when I arrived there. Up the hill, doors on Rosa Parks Lane were shut tight against the chill. I was headed for the nearby Italian Catholic Cemetery, one of the state’s hidden treasures. It served Bibb County’s immigrant community in the days before its mines and coke ovens closed.

The Italian community was a world apart. Some of the laborers that mine bosses imported from Italy worked in an enclosure that locals called a “dog pen" until they paid off the cost of their passage.  The homes, stores and restaurants of their fellow countrymen were centered in a hilly area called “Little Italy" . . . .

So strong was the code of apartheid at the dawn of the 20th century that an Italian child was refused burial in the community’s traditional white cemetery, Mt. Carmel.  That led the bishop of the Catholic Diocese of Alabama to consecrate the Italian Cemetery in 1901. . . .

But until recently, when an all-weather road was constructed, the Italian Catholic Cemetery remained difficult to access. Deep ruts and potholes made the road up the ridge treacherous.  Still, a visit there always rewarded the effort.

Most of the grave markers are written in Italian. Some retain the old-county custom of featuring a small oval portrait of the deceased. A few reflect the hardscrabble lives -- and deaths -- of the immigrants. “Victim of the mine," one stone reads. “Killed in Klondike Mine July 20, 1906," says another.

There's a lot more to the story.  I sure enjoy the Tuscaloosa News.

The image of West Blocton (one of the few I could find in the public domain) is from our friends at the Library of Congress.

Alfed L. Brophy

January 14, 2007 | Permalink | Comments (0) | TrackBack (0)

James Brown's Will

This has all the makings of a great class discussion.  So Strom Thurmond, Jr. was James Brown's lawyer?!  And the will (I can't tell from the story whether it was executed before or after the five year old child's birth) doesn't mention either Tomi Rae Hynie Brown or the five year old child.

Al Brophy

January 14, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, January 12, 2007

Carpenter on Sacred Sites on the Western Landscape

I'm looking forward to reading Kristen Carpenter's (University of Denver) Old Ground and New Directions at Sacred Sites on the Western Landscape.  Here is her abstract:

The federal public lands contain places with both religious and secular value for American people. American Indians, in particular, hold certain natural features to be sacred, and visit them for ceremonies and worship. Simultaneously, non-Indians use the same places for economic, recreation, and many other purposes - and conflicts arise between these groups. In the past twenty years, a body of constitutional jurisprudence has developed to address questions of religious freedoms and public access rights on these lands that are owned and managed by the federal government. This article outlines the relevant First Amendment framework as well as recent statutes that apply in sacred sites cases. Acknowledging that the law fails to satisfy parties on all sides of the dispute, it also suggests new directions for scholarship and advocacy in the sacred sites realm.

Propertyprofs might also enjoy Professor Carpenter's A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Non-Owners.

Alfred L. Brophy

January 12, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Stambovsky v. Ackley

I'm teaching real estate transactions in my Property II class, and today we covered Stambovsky v. Ackley, the famous haunted house case.  I have to say that despite its fun facts, I don't find the case very useful.  Sure, its discussion of caveat emptor is okay, but there are a lot of better cases out there on that point.  Am I missing something?

Ben Barros

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

January 12, 2007 in Teaching | Permalink | Comments (6) | TrackBack (0)

Thursday, January 11, 2007

Sale of Art: Thomas Eakins' Gross Clinic

Eakinsthegrossclinic The New York Times has an excellent article on the sale of Thomas Eakins' Gross Clinic by the Thomas Jefferson University Medical School.  It has important implications about a non-profit's duties to raise money and the public's interest in its local treasures.  Here's a flavor of the article:

In art, as in love, you don’t always know what you’ve got until it has one foot out the door. Thomas Eakins’s “Gross Clinic,” as great as any American painting of the 19th century, was about to leave Philadelphia but will now stay in the city that has always been home to it.

Alice L. Walton, the Wal-Mart heiress, and the National Gallery of Art in Washington wanted jointly to buy it for $68 million from Thomas Jefferson University, one of this city’s medical schools. But the Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts, offered a chance to match the price, promised just before Christmas that they could come up with the money after a fund-raising campaign stirred civic juices, angered Jefferson alumni who disapproved of the sale and inspired hundreds of donors, big and small, to send checks.

I'm working on a post on another Pennsylvania treasure--the Hershey Chocolate Company--and the Hershey Trust, which was at the center of another controversy over public and private rights in 2002. 

The image of the Gross Clinic is courtesy of our friends at wikipedia.  Reminds me of a terrific seminar I took with Dr. James C. Davis in college, lo those many years ago (1984).  Perhaps my interest in art history is traceable to his lecture on Eakins.  I remember it to this day....

Alfred L. Brophy
Comments are held for approval.

January 11, 2007 | Permalink | Comments (0) | TrackBack (0)

Safrin on How Property Begets Property

Sabrina Safrin (Rutgers - Newark) has posted Chain Reaction: How Property Begets Property on SSRN.  Here's the abstract:

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society's movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today's global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another.

The article offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and tangible goods from open access or commons property to exclusive ownership regimes. The chain reaction theory of the evolution of intellectual and other property rights has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes.

Ben Barros

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

January 11, 2007 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Kelly on Urban Communities and Eminent Domain

We've spoken already about James Kelly's Urban Communities, Eminent Domain, and the Socioeconomics of Just Compensation.  It's now out in the St. John's Law Review.  Check it out.

Here's the 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.

Alfred L. Brophy

January 11, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Eagle on Takings and Due Process

Steven J. Eagle (George Mason School of Law) has posted Property Tests, Due Process Tests and Regulatory Takings Jurisprudence on SSRN.  Here's the abstract:

The United States Supreme Court recently clarified in Lingle v. Chevron U.S.A., Inc. that its often-expressed “substantially advance” formulation sounds in due process, and thus should be rejected as an appropriate takings test. The Court also explained that due process provides an independent and legitimate basis for attacking government deprivations of private property. Paradoxically, Lingle also reaffirmed as the Court's principal takings test the ad hoc, multifactor formulation in Penn Central Transportation Co. v. City of New York.

The Article asserts that Penn Central itself is a due process test. Building upon Lingle, as the Court did not, the Article outlines separate and independent takings and due property tests. The proffered due process test is based on the need for meaningful scrutiny. The suggested takings test applies property law concepts in determining whether government arrogated private property to itself, and thus must compensate. Most particularly, the Article advocates the “commercial unit” as a necessarily objec-tive measure of what constitutes a relevant interest for takings analysis.

As regular readers know, this is an issue near and dear to my heart.  Eagle is a very perceptive commentator on takings issues, so this is definitely worth the read.

Ben Barros

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

January 11, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 10, 2007

Tate on Incentive Trusts

Joshua C. Tate (SMU - Dedman School of Law) has posted Conditional Love: Incentive Trusts and the Inflexibility Problem on SSRN.  Here's the abstract:

This Article examines the contemporary phenomenon of incentive trusts: trusts that use money to encourage or discourage certain behaviors. Using evidence from Internet websites, practitioner articles, and newspaper articles, the Article considers the likely provisions that a typical incentive trust might have, and explains how such trusts might lead to a problem of inflexibility when they are not drafted so as to take into account the possibility of changed circumstances. The Article also examines current law regarding trust modification and termination as well as recent reform proposals, and suggests some alternatives that might better take into account the particular characteristics of incentive trusts.

Ben Barros

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

January 10, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Daniel Hamilton's The Limits of Sovereignty

Hamilton We're spoken about Daniel Hamilton's The Limits of Sovereignty already.  I'm delighted to say that it's now out from the University of Chicago Press.  Here's the Press' description:

Americans take for granted that government does not have the right to permanently seize private property without just compensation. Yet for much of American history, such a view constituted the weaker side of an ongoing argument about government sovereignty and individual rights. What brought about this drastic shift in legal and political thought?

Daniel W. Hamilton locates that change in the crucible of the Civil War. In the early days of the war, Congress passed the First and Second Confiscation Acts, authorizing the Union to seize private property in the rebellious states of the Confederacy, and the Confederate Congress responded with the broader Sequestration Act. The competing acts fueled a fierce, sustained debate among legislators and lawyers about the principles underlying alternative ideas of private property and state power, a debate which by 1870 was increasingly dominated by today’s view of more limited government power.

Through its exploration of this little-studied consequence of the debates over confiscation during the Civil War, The Limits of Sovereignty will be essential to an understanding of the place of private property in American law and legal history.

The cover art is beautiful too.  In this case, you should judge a book by its cover.  I love fences as illustrations for property talk.

Propertyprofs may also enjoy Charles W.J. Withers' Placing the Enlightenment: Thinking Geographically About the Age of Reason, which is forthcoming in June from the University of Chicago Press.  I hope to comment some on it when it appears.

Alfred L. Brophy

January 10, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 9, 2007

Lewinsohn-Zamir on Redistribution Through Private Law

Daphna Lewinsohn-Zamir (Hebrew University) has posted In Defense of Redistribution Through Private Law on SSRN.  Here's the abstract:

An ongoing debate has centered on whether redistribution should be attained solely through taxes and transfer payments, or also via the private law. The most powerful argument against redistribution through private law is grounded on economic considerations. Accordingly, legal rules are more costly and less effective at redistributing welfare than the tax-and-transfer alternative.

This Article offers a general and principled defense of redistribution through private law rules. The economic argument against such rules is based on a simplistic consequentialist theory; one that confines welfare promotion to the satisfaction of people's actual preferences, and disregards the positive or negative effects of the method which generated the redistributive outcome. The Article develops a more plausible consequentialist theory, which adopts an objective approach to welfare, and considers the impact of redistribution methods on the goodness of the resulting outcomes. Through the lens of the alternative theory, private law rules fare very well and enjoy advantages that taxes and transfer payments lack. Indeed, reallocation of a smaller quantity of goods through private law advances well-being to a greater extent than the same (or even larger) amount generated via taxes and transfer payments. This conclusion is supported by behavioral studies as well.

The Article demonstrates the greater desirability of redistributive private law rules in a few contexts, including Landlord and Tenant Law and Family Property. It also illustrates the advantages of private law in comparison to “intermediate” schemes, in which only one side of the redistribution (the taking or the giving) is executed through legal rules, while the other is attained via taxes or monetary transfers: the voucher system and rules of compensation for property takings.

Ben Barros

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

January 9, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Clauretie, Kuhn, and Schwer on Value of Properties Taken By Eminent Domain

Terrence M. Clauretie, William Kuhn, and R. Keith Schwer (UNLV) have posted Residential Properties Taken Under Eminent Domain: Do Government Appraisers Track Market Values?  Here's the abstract:

Local governments often use powers of eminent domain to take residential properties for public use. In such cases, the local government will use their appraisers to calculate an offer on the property. If the government's goal is to avoid costly (use of administrative resources) litigation it may have an incentive to over-appraise the properties. Such over-valuation would transfer the cost to taxpayers. This study compares the appraised value of sixty properties taken through eminent domain in Clark County, Nevada to comparable properties sold in free market transactions. The findings indicate a 17% over-appraisal of the properties taken by eminent domain. The findings also indicate that a government may use simple rules for appraising the properties, whereas the market employs more complex rules.

Ben Barros

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

January 9, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Baker, Sirmans, and Miceli on Mortgage Redemption Laws

Matthew J. Baker (U.S. Naval Academy), C.F. Sirmans (University of Connecticut) and Thomas J. Miceli (University of Connecticut) have posted An Economic Theory of Mortgage Redemption Laws on SSRN.  Here's the abstract:

Redemption laws give mortgagors the right to redeem their property following default for a statutorily set period of time. This paper develops a theory that explains these laws as a means of protecting landowners against the loss of non-transferable values associated with their land. A longer redemption period reduces the risk that this value will be lost but also increases the likelihood of default. The optimal redemption period balances these effects. Empirical analysis of cross-state data from the early twentieth century suggests that these factors, in combination with political considerations, explain the existence and length of redemption laws.

Ben Barros

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

January 9, 2007 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

'Tis the season . . .

to post articles on SSRN in advance of the upcoming Feb/March window.  Lots of cool stuff has been posted in the last week or so.  I'll be putting up a bunch of links and abstracts over the next couple of days.

I'm also looking forward to reading the Wendel and Popovich article mentioned by Al in his last post -- I remember filling out the survey last year, and have been looking forward to the results.

Ben Barros

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

January 9, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)