Wednesday, February 28, 2007

Private Property in Legos

From TCSDaily:

Some Seattle school children are being told to be skeptical of private property rights. This lesson is being taught by banning Legos.

A ban was initiated at the Hilltop Children's Center in Seattle. According to an article in the winter 2006-07 issue of "Rethinking Schools" magazine, the teachers at the private school wanted their students to learn that private property ownership is evil.

According to the article, the students had been building an elaborate "Legotown," but it was accidentally demolished. The teachers decided its destruction was an opportunity to explore "the inequities of private ownership." According to the teachers, "Our intention was to promote a contrasting set of values: collectivity, collaboration, resource-sharing, and full democratic participation."

The children were allegedly incorporating into Legotown "their assumptions about ownership and the social power it conveys." These assumptions "mirrored those of a class-based, capitalist society -- a society that we teachers believe to be unjust and oppressive."

They claimed as their role shaping the children's "social and political understandings of ownership and economic equity ... from a perspective of social justice."

So they first explored with the children the issue of ownership. Not all of the students shared the teachers' anathema to private property ownership. "If I buy it, I own it," one child is quoted saying. The teachers then explored with the students concepts of fairness, equity, power, and other issues over a period of several months.

At the end of that time, Legos returned to the classroom after the children agreed to several guiding principles framed by the teachers, including that "All structures are public structures" and "All structures will be standard sizes." The teachers quote the children:

"A house is good because it is a community house."

"We should have equal houses. They should be standard sizes."

"It's important to have the same amount of power as other people over your building."

Ben Barros

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February 28, 2007 in Property Theory | Permalink | Comments (1) | TrackBack (0)

Menell on Property Rights Movement and IP

Peter S. Menell (Boalt Hall) has posted The Property Rights Movement's Embrace of Intellectual Property: True Love Or Doomed Relationship? on SSRN.  Here's the abstract:

The recent Supreme Court battle over the legal standard for permanent injunctions in patents cases (eBay v. MercExchange) marked an important new front in the Property Rights Movement's campaign to establish a strict and broad interpretation of property rights and their enforcement. This essay explores whether Professor Richard Epstein's embrace of intellectual property rights is likely to produce a durable marriage of traditional property rights theory and intellectual property protection or merely represents a fling that will not withstand divisive relational pressures. It shows that philosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.

Ben Barros

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February 28, 2007 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

My Desk

For your viewing pleasure, here is a picture of my desk:


Note the bright yellow-green document in the middle -- one of my students was smart enough to place the colored sheet on the top of her student note so it wouldn't get lost in the pile.  In my humble opinion, a clean desk is a sign that you don't have enough to do.

Ben Barros

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February 28, 2007 in About This Blog | Permalink | Comments (2) | TrackBack (0)

Monday, February 26, 2007

Glennon et al. on Water Resources

Robert Glennon (University of Arizona) and collaborators have posted four articles on water resources on SSRN.  Here they are:

Robert Glennon, Jedidiah Brewer, Alan P. Ker, and Gary D. Libecap, Water Markets in the West: Prices, Trading, and Contractual Forms:

Rising urban and environmental demand for water has created growing pressure to re-allocate water from traditional agricultural uses. But, for a variety of reasons, water markets are more complicated than are those for other resources. In this paper, we first explain these differences by examining water rights and regulatory issues. Second, we place our research in the context of other economics literature on water marketing. Third, we present new, comprehensive data on prices and the extent, nature, and timing of water transfers across 12 western states from 1987-2005. Prices are higher for agriculture-to-urban trades versus within-agriculture trades, in part, reflecting the differences in marginal values between the two uses. Prices higher for urban use are also growing relative to agricultural use over time. Markets are responding. The number of agriculture-to-urban transactions is rising over time, whereas the number of agriculture-to-agriculture transfers is not. Further, there is a shift from using short-term leases to using multi-year leases of water and permanent sales of water rights. This pattern underscores the need to consider the amounts of water obligated over time, rather than examining only annual flows in assessing the quantities of water traded as is the common practice in the literature. Considering committed water, we find that more is transferred and the direction of trading is different than if the focus is on annual flows. Finally, the data reveal considerable variation in water trading across the states.

Robert Glennon and Michael J. Pearce, Transferring Mainstem Colorado River Water Rights: the Arizona Experience:

As one of the fastest growing states in the country, Arizona faces a problem: where is it going to find water to support this growth? The problem arises because most surface water supplies are completely allocated and groundwater is being pumped at an unsustainable rate. This leaves, as the only viable source of new water, Colorado River water available through the sale, lease or exchange of existing water rights.

The United States is entering an era of water reallocation, when demand for new supplies will be satisfied by shifting water use from existing users to those with new demands. Voluntary transfers between willing sellers and willing buyers is, we believe, the best way to bring about this reallocation. Water marketing should be especially embraced by the environmental community because the alternatives are unsatisfactory: more diversions of water from the few remaining free-flowing rivers; an increase in groundwater pumping; or the construction of new dams.

This paper explores the opportunities for marketing Colorado River water by examining case studies of individual transfers that have occurred or been proposed. We consider a recent proposal by the seven Colorado River Basin States that would alter the Law of the River with a set of incentives that would encourage water conservation by allowing cities to pay farmers and irrigation districts to undertake extraordinary conservation measures. We conclude that there substantial impediments to water marketing: the legal constraints are formidable; the transaction costs substantial; and the emotions highly charged. Procedural pitfalls and bureaucratic oversight of transfers constitute substantial impediments to the transfer of even modest quantities of water. These regulatory obstacles drive up transaction costs and discourage the development of a market in water.

Robert Glennon, Tales of French Fries and Bottled Water: the Environmental Consequences of Groundwater Pumping:

This article is a substantially revised version of the 19th Annual Distinguished Visitor lecture at Lewis and Clark Law School in September 2006. Drawing on my 2002 book, Water Follies: Groundwater Pumping and the Fate of America's Fresh Waters (Island Press, 2002), I use stories about common activities in our daily life, such as drinking bottled water and eating French fried potatoes, to illustrate the horrible environmental consequences of groundwater pumping. Excessive groundwater pumping has dried up rivers and lakes around the country, including some very surprising areas, such as Florida and Massachusetts. The phenomenon comes from a disconnect between law and science: the science of hydrology understands that surface and groundwater are integrated parts of the hydrologic cycle, but the legal system governs ground and surface water by different legal doctrines. Rather than reforming the system, we have devised Rube Goldberg solutions, such as refilling dried-up lakes by pumping more groundwater. This illustrates a remarkable trait of human beings: we have an unlimited capacity to deny reality.

Robert Glennon, Christopher Avery, Carla Consoli, and Sharon B. Megdal, Good Intentions, Unintended Consequences: The Central Arizona Groundwater Replenishment District's Search for Renewable Supplies of Water:

The 1980 Arizona Groundwater Management Act is widely celebrated as a progressive piece of legislation that attempted to halt excessive groundwater pumping. A key component of the Act was its requirement that developers demonstrate an “assured water supply” [AWS] before receiving permission to build. In the early 1990s, the legislature created an optional method for securing AWS compliance: membership in the Central Arizona Groundwater Replenishment District [CAGRD]. This option has turned out to be far more attractive than was originally envisioned. This paper explores the good intentions but unintended consequences brought about by the CAGRD option.

As membership in CAGRD has skyrocketed, so has the CAGRD's obligation to obtain additional supplies of renewable water. From where, and at what price, CAGRD will obtain these supplies is very problematic. This article offers a set of options that would reform how CAGRD operates. Without significant change, CAGRD will find itself required to accept additional members but without access to long-term water supplies to meet it replenishment obligations.

Ben Barros

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February 26, 2007 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 23, 2007

Stein on Building Codes

Gregory M. Stein (University of Tennessee) has posted Doomed to Re-Repeat History: The Triangle Fire, the World Trade Center Attack, and the Importance of Strong Building Codes on SSRN.  Here's the abstract:

Imagine this: You are a member of a commission charged with recommending changes to the building code of a densely-packed urban city, say New York. Your recommendation is that high-rise office buildings are overly safe and that your city should relax its codes. That, more or less, is what happened in New York in 1968. Fifty-seven years after the Triangle Waist Company fire, in which 146 people trapped in the upper floors of an unsafe building burned, jumped, or fell from a collapsed fire escape to their deaths, New York City relaxed its safety rules for high-rise buildings.

In his outstanding historical account, "Triangle: The Fire that Changed America," David Von Drehle makes the cogent case that building-safety laws matter. And in their equally outstanding retelling of the 2001 World Trade Center attack from the perspective of those trapped inside the burning buildings, "102 Minutes: The Untold Story of the Fight to Survive inside the Twin Towers," Jim Dwyer and Kevin Flynn make the explicit case that we have forgotten this lesson.

The parallels between the books and the events they portray are remarkable. In each case, we are reminded of the incentives that cause developers to squeeze the maximum amount of rentable space onto each expensive square foot of urban land. We come to understand the competing stresses on city bureaucrats charged with drafting and enforcing safety rules for high-rise buildings. We are treated to careful descriptions of the structures that inevitably result from these economic forces and safety rules. And we then watch a pair of disasters unfold, two miles and ninety years apart.

Ben Barros

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February 23, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Bourassa and Hoesli on Why Do The Swiss Rent?

Steven C. Bourassa (University of Louisville) and Martin Hoesli (University of Geneva) have posted Why Do the Swiss Rent? on SSRN.  Here's the abstract:

At 34%, Switzerland has the lowest home ownership rate in Western Europe. This is a puzzle given the economic strength of the country. We use 1998 household survey data for five Swiss cantons to explore some possible reasons for this. We estimate a tenure choice equation that allows us to analyze the impacts of a number of key variables on the ownership rate. We pay particular attention to the relative cost of owning and renting, which is a function of house prices, rents, and the user cost of owning. The latter is a function of income tax policy and expected house price inflation, among other things. We also measure mortgage underwriting criteria and consider rent control and other policies affecting rental housing. By simulating a number of hypothetical changes to taxation and other policies, underwriting criteria, and price levels, we assess the importance of these variables in explaining the ownership rate. We conclude that high house prices - relative to rents and to household incomes and wealth - are by far the most important cause of Switzerland's low ownership rate.

Ben Barros

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February 23, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 21, 2007

Taking The Rhetoric of Property Way Too Far

Some readers might be familiar with the case of Steven Bixby, who was convicted of killing two police officers in dispute over South Carolina's use of eminent domain to take 20 feet of Bixby's land to widen a highway.  From a CNN story on Bixby:

The 39-year-old man was convicted Sunday, after a five-day trial, of murdering the two officers. On Tuesday, the penalty phase of his trial begins; the same jury that convicted him has a choice of sentencing him to death or to life without chance of parole.

His family was upset because the state wanted to take about 20 feet of land near their home to widen a highway. Witnesses said Bixby and his father, who is awaiting trial on murder charges, had threatened to gun down any officer who set foot on their land. . . .

On the stand for the defense Saturday, Bixby's mother [testified:] "He has the right to protect his property by any means necessary." . . .

The 20 feet of land the family refused to give up has since been used to expand a highway that runs near the now-vacant home.

Ben Barros

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February 21, 2007 in Property Theory, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, February 19, 2007

Fischel on Miller v. Schoene

I'm sure that many readers are familiar with William Fischel's scholarship.  His book The Homevoter Hypothesis is one of my favorite works on land use and local government issues, and his book Regulatory Takings:  Law, Economics, and Politics is an amazing resource for people interested in the political, historical, and economic background of the Supreme Court's leading takings cases.  In the mold of some of the chapters in Regulatory Takings, Fischel has authored a new article titled The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene, available on-line from BePress.  Here's the abstract:

Miller v. Schoene approved the uncompensated destruction of cedar trees that were alternate hosts to a fungus that damaged apples but not cedars. Supreme Court Justice Harlan F. Stone’s opinion noted that deciding for either cedar or apple growers would amount to action by the state. Scholars have claimed that Miller marked the demise of the public/private distinction in constitutional law. This article presents historical evidence to the contrary. A widely-accepted standard—higher commercial value—commonly decided whose interests should prevail in such controversies. The analysis also shows that moral hazard explains why cedar owners were denied just compensation, which orchardists had originally been willing to tax themselves to pay. Cedar owners whose land actually gained in value when their trees were cut down nonetheless availed themselves of damages.

This is a must-read if, like me, you're a takings geek.

Ben Barros

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February 19, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Saturday, February 17, 2007

another reason for the public reaction to Kelo

After reading (OK, skimming) the Nadler/Diamond article on public reaction to Kelo, it occurred to me that one factor that might have increased public outrage was misleading press coverage of the decision.

For example, an article in the Economist (available at 2006 WLNR 20520851) wrote:

Since property rights are one of the foundations on which America's immense prosperity is built, it seems odd to undermine them. The framers of the constitution understood this well. True, the fifth amendment allows the government to take private property, but only for public use and so long as just compensation is paid. Public use has long been understood to mean what it says: a road, a public school or the like. Few would dispute that the state needs a tool (known as the power of eminent domain, or outside America as compulsory purchase) to prevent a lone homeowner from blocking an interstate highway.

But in June last year the Supreme Court expanded the definition of public use. In the case of Kelo v New London, it ruled, by five votes to four, that the state may seize private property on behalf of private developers, so long as this serves some broadly defined public purpose, such as increasing the flow of taxes into public coffers. In other words, any local government may evict any citizen to make way for someone richer. The four dissenting justices knew this might be a tad controversial. "The spectre of condemnation hangs over all property," fumed Sandra Day O'Connor. "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The article's statements that the 
"Public use has long been understood to mean what it says: a road, a public school or the like" and that the Court "expanded the meaning of public use" are flat-out wrong .  In fact, for decades the Court has understood "public use" to mean "public purpose", no matter how much libertarians may dislike this view.  And the article's invocation of the founders in the first paragraph is meant to inflame the reader's emotions by pitting the Founding Fathers against the Framers against the current Court.

And this festering hunk of dishonesty occurred in the Economist (a fairly high-toned publication) several months after the decision (which means the author and editors actually had time to do research!). 

If this sort of misinformation is what came out in the Economist, I suspect that less elite sources of information were even more careless.

Michael Lewyn

February 17, 2007 in Land Use | Permalink | Comments (2) | TrackBack (0)

Friday, February 16, 2007

Ryan on Palazzolo, the Public Trust, and Reasonable Expectations

Erin Ryan (William & Mary) has posted Palazzolo, the Public Trust, and the Property Owner's Reasonable Expectations: Takings and the South Carolina Marsh Island Bridge Debate on SSRN.  Here's the abstract:

South Carolina recently promulgated new guidelines regulating the State's consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina's formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the aftermath of a key Supreme Court takings decision, Palazzolo v. Rhode Island, in which the public trust doctrine made a late-breaking appearance on remand.

After exploring the takings-related anxiety embedded in the South Carolina bridge controversy, this essay reviews the Palazzolo saga through its ultimate disposition on remand, and analyzes its significance not only for the marsh island bridge debate but for the broader array of land use controversies that involve wetlands, tidelands, and other submerged lands. Rhode Island's successful reliance on the public trust doctrine in defending the Palazzolo claim on remand – bolstered by a related analysis in McQueen v. South Carolina Coastal Council – suggests that regulatory takings claims brought by disappointed bridge permit seekers are unlikely to succeed. Both decisions hold that the public trust doctrine forms part of the background principles of state law that inform private property owners' reasonable expectations about the potential uses of submerged lands. Because the property owner's "reasonable expectations" about development prospects are a central consideration in the legal analysis of a regulatory takings claim, recognition that the public trust doctrine limits their formation regarding submerged lands strengthens the position of the state in this and many other land use controversies that pit environmental protection of wetlands and tidelands against opposing private property interests.

Ben Barros

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February 16, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 14, 2007

Stetson Looking For Property Visitor

Stetson is seeking a Visiting Professor (not a look-see position) to teach the basic Property course during 2007/08.  Contact Professor Janice McClendon, Co-Chair of the Appointments Screening Committee at  [email protected].  If interested, contact her ASAP -- this position needs to be filled before March 15.

Ben Barros

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February 14, 2007 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Monday, February 12, 2007

Nicole Garnett at the VC

Nicole Garnett is guest-blogging this week at the Volokh Consipiracy about the political economy of eminent domain.  Today's post is on the issue of undercompensation.

UPDATE 2/13:  The next post in the series is Takers Try To Minimize Cost By Not Taking High-Value Properties.  Ilya Somin comments here.

UPDATE 2/14:  Today's post is Replacement Value, Not Market Value.

Ben Barros

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February 12, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Carpenter on Allotment

Kristen A. Carpenter (University of Denver) has posted Contextualizing the Losses of Allotment Through Literature on SSRN.  Here's the abstract:

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th- early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into mainstream society, allotment was devastating for Indian people who suffered incredible losses of land, economic livelihood, culture, and everything else that mattered. But the Supreme Court's caselaw on allotment might make you think otherwise. Indeed Lone Wolf v. Hitchcock (1903) characterizes allotment as a policy that simply changed the manner in which tribes owned their real property and did not cause any losses at all.

There are, of course, many ways to develop a fuller legal picture of the losses tribal people suffered during allotment, including historical and empirical research. But this article argues that fiction also has something to offer. Accordingly it argues that two novels by the Turtle Mountain Chippewa author Louise Erdrich can serve to contextualize the losses suffered by Indian people during allotment. While tribal people clearly lost a lot of land, Erdrich helps us understand how allotment brought about losses in socio-economic, familial, spiritual, and other realms of tribal life. And even though she is writing about fictional Ojibwe people and not the real Kiowa and Comanches involved in Lone Wolf, Erdrich raises important, relevant questions about allotment. Inspiring lawyers to contemplate these questions—completely ignored by Lone Wolf—can enhance both understanding of the case and contemporary advocacy to redress the losses of allotment today.

Ben Barros

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February 12, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

More on Wilderness to Property

Marc Roark has some new posts up in his series From Wilderness to Property.  Check 'em out.

Ben Barros

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February 12, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Friday, February 9, 2007

Alix-Garcia on Common Property Deforestation

Jennifer Alix-Garcia (University of Montana, Dep't of Economics) has posted A Spatial Analysis of Common Property Deforestation on SSRN. Here's the abstract:

This paper develops and tests a theory of common property deforestation over space. The model examines both the spatial distribution of forest loss and the total amount of deforestation within a given community, showing how these outcomes are jointly determined. We estimate the
equations of the model in a four step process using data from 318 Mexican common properties. In contrast to previous deforestation theories, we find that the allocation of deforestation across space is dependent upon both the absolute and relative quality and location of each hectare land in the same community and on the overall deforestation decision of the community. Simultaneously, total deforestation depends upon the value of deforested land, which is determined by its physical attributes, as well as the characteristics of the community that affect its collective choice problem. Smaller group size, higher secondary education, and greater inequality are associated with lower deforestation.

Ben Barros

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

Nadler and Diamond on Kelo

Janice Nadler and Shari Seidman Diamond (Northwestern University Law School) have posted Government Takings of Private Property: Kelo and the Perfect Storm on SSRN. Here's the abstract:

In Kelo v. City of New London, the U.S. Supreme Court ruled that governments are permitted to use the power of eminent domain to force the sale of private property for the purpose of promoting economic development. The decision provoked an unusually widespread popular reaction of outrage. In this chapter, we document the extreme public reaction to Kelo, which cut across political party, race, gender, and education. We focus on the rift between the public's expectations about the circumstances under which government should be permitted to take private property, on the one hand, and eminent domain law, on the other. The Supreme Court has long interpreted the “public use” requirement of the Fifth Amendment quite loosely, but for many decades this went mostly unnoticed by the general public until the Supreme Court declared in Kelo that taking homes for the purpose of economic development satisfies the public use requirement. The Kelo decision seemed to trigger a sudden collective recognition of the Court's public use doctrine, and in this chapter we explore the possible reasons for this change.

Ben Barros

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February 9, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (1)

Wednesday, February 7, 2007

Hypothecating Kidneys

Over at the CoOp, Nate Oman has an interesting post on granting security interest in human body parts.

Ben Barros

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February 7, 2007 in Property Theory | Permalink | Comments (1) | TrackBack (0)

Teaching History and Theory in First Year Property

I love both the history and theory of property, but struggle with how deeply to cover them in first-year property.  I was reminded of this issue when I was looking through an older study guide for property.  The guide took what I understand to be a traditional approach to covering estates and future interests, focusing in depth on the historical development of the common law from William the Conqueror to the present.  My perception is that few professors still teach the property course in this way; I certainly don't.  Some understanding of the feudal evolution is necessary to understand how our property system works, but I wonder how much.  For example, does it really add anything to student understanding to know that executory interests were first allowed by the Statute of Uses?

On both history and theory, I tend to think that they should only be included in first-year property to the extent that they help student understanding of the basic legal covered in the property course.  I wonder, though, whether there are basic theoretical and historical issues that are important enough to cover for their own sakes, regardless of the degree to which they help student understanding.  On the theory side, for example, there is a good case to be made that all students should understand the basics of externalities and the property rule/liability rule distinction, regardless of their exact tie to the subject matter in the property course.  I think that both help tremendously in understanding nuisance doctrine, especially nuisance remedies, but I think I could make a case for including them even if I didn't cover nuisance in the course.

Thoughts?  Opinions?

Ben Barros

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February 7, 2007 in Property Theory, Teaching | Permalink | Comments (2) | TrackBack (0)

Monday, February 5, 2007

Power on Limitations on Land Use Controls

Garrett Power (University of Maryland School of Law) has posted Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions - 2007 Edition on SSRN.  Here's the abstract:

Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2007) is electronically published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in Land Use Control and Environmental Law courses. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text consists of non-copyrighted material and professors and students are free to use it in whole or part. The author requests that any corrections or suggestions be sent to him at this address: [email protected]

The readings provide an historical context, and an up-to-date focus on many of the constitutional questions that face today's Supreme Court: the “regulatory taking' issue; the “navigability” boundary on federal power; the “public use” limitation on eminent domain; the balance between property rights and First Amendment liberties; the “essential nexus” between government prohibition and purpose, and; the fine line between taxation and expropriation.

As the table of contents indicates, the 100 odd cases have been grouped into 28 sessions. Most sessions consist of four or five tightly-edited cases, and the related statutes, if any. Each session is intended to provide an assignment appropriate for a 50 minute class discussion. The compilation is approximately 700 pages in length. It will be up-dated annually.

Ben Barros

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February 5, 2007 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Klemme on Takings and Substantive Due Process

Howard C. Klemme (University of Colorado School of Law) has posted Takings, Substantive Due Process, and the Regulatory Roles of Government on SSRN.  Here's the abstract:

As described in the Author's Note, this recently completed book is an in-depth analysis of the law of what constitutes a compensable taking and how that law relates (along with its history and rhetoric) to the law of substantive due process. While that analysis focuses primarily on so-called “regulatory takings,” it also considers other forms of takings, for example, those that may occur when governmental employees cause injury to private property while engaging in tortious conduct.

The book is intended to serve as a comprehensive research tool for students, lawyers, judges, land use planners, and others who may be interested in the law of compensable takings, including those who may have a special interest in its history or rhetoric, such as political scientists, economists, historians and rhetoricians. Most takings and related substantive due process decisions of the United States Supreme Court are analyzed, as are many state court decisions, many of which prove to be of far more significance than most of the Supreme Court's decisions. Indeed, except for the law of takings as it relates to utility rate regulation and rent control, nearly all the present-day law of takings, including its confused and confusing substantive due process rhetoric, have been created (or invented) by state courts. Surprisingly little is the original work of the United States Supreme Court.

Of the book's ten chapters, only the book's foundation chapters, Chapters I, II, and V, accompany this abstract. Following the broad overview presented in Chapter I of the book's research, analyses, and principal conclusions, Chapter II describes in greater detail the three regulatory roles of government - prevention, redistribution, and that of encouraging the exchange or sharing of privately owned resources - that are most likely to be relevant when trying to decide whether a particular governmental regulation or its application, or any other form of governmental action or inaction constitutes a compensable taking.

In terms of legal analysis, the book's two most important chapters are Chapters IV and V. Though it does not accompany this abstract, Chapter IV expands the analysis presented in Chapters I and II and demonstrates from several different perspectives how, on a principled basis, it is possible to distinguish between governmental actions or inactions that constitute compensable takings and those that do not. In most instances, that process involves using the "involuntary Good Samaritan test" of takings (as I have denoted it) to identify which regulatory role (or roles) the government was exercising when it adopted or applied a particular regulation or undertook other regulatory action. The resulting conclusion answers the question of whether a compensable taking has occurred. The purpose of Chapter V, the book's single most important chapter, is to demonstrate and explain how, and why, that process and test reflect so well the underlying policies of the takings clause, its language and its history of nearly eight hundred years.

Ben Barros

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February 5, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)