Tuesday, July 31, 2007

Strahilevitz on Posner as a Political Economist

Lior Strahilevitz (University of Chicago) has posted 'Don't Try this at Home': Posner as Political Economist on SSRN.  Here's the abstract:

This short essay, written for a symposium commemorating Richard Posner's twenty-fifth year as a judge, examines Judge Posner's assessment of a comprehensive ordinance regulating the rental housing market in Chicago Board of Realtors v. City of Chicago. The essay suggests that Posner's reliance on the economic literature regarding landlord-tenant regulation was laudable and that the conclusions he drew from applying the economic literature were plausible. Posner's analysis of the political economy of such regulations, however, is unpersuasive, and seems to be driven by an unfortunate projection of Posnerian intuitions onto the mind of the median Chicago voter.

Ben Barros

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July 31, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2007

Brown on Blogs, Law School Rankings, and the Race to the Bottom

Jay Brown's Blogs, Law Schools Rankings, and the Race to the Bottom is up on ssrn.  This is both an insightful commentary on the role of blogs in legal scholarship and the mechanics of blogging.  I think the paper will generate some talk.  Professor Brown's abstract reads:

Blogs are changing legal scholarship. Although not a substitute for the detailed, often intricately researched analysis contained in law reviews and other scholarly publications, they fill an important gap in the scholarly continuum. Blog posts can generate ideas and discussion that can be transformed into more a systematic and thorough paper or scholarly article. At the same time, blogs provide a forum for testing ideas once they are published in more traditional venues.

While over time, a blog presence will likely become de rigueur for top scholars and law reviews, top tier schools as a group have not yet targeted blogs as a necessary component of scholarly activity. In the short term, therefore, blogs provide unique opportunities for faculty and law schools outside the top tier to enhance their reputational rankings. Blogs can enhance reputation by allowing faculty to route around some of the biases in law review placements and SSRN rankings that favor those at the top tier schools. Blogs also represent a cost effective mechanism for advertising scholarly activity.

The paper discusses the evidence that blogs enhance reputation and surveys the way that scholars at law schools outside the top tier are already harnessing blogs to enhance their reputations. The paper also discusses what it takes to create a successful blog, from the search for content to the benefits of advertising. The paper finishes with a brief history of The Race to the Bottom, a corporate governance blog.

Alfred L. Brophy
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July 30, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Land Use on the Border

Just got back from Law and Society in Berlin, which was great.  It was nice to meet a bunch of PropertyProf readers in person.

Here's a NPR story on a land-use issue with a unique international law twist:

In Washington State, a dispute over a homeowner's garden wall  has ballooned into a big federal lawsuit. It's stirred up a fight over private property rights versus international border security.  And as NPR's Martin Kaste reports, the case even touches on the limits of presidential power.

MARTIN KASTE: Herbert Liu is a quiet Chinese American from  Hawaii.  But he and his wife recently moved to Washington State to build their retirement home close to the Canadian border, very close to the border.

Mr. LIU: Right now we are standing on the 49th Parallel.

KASTE: This road here?

Mr. LIU: Yeah.

KASTE: So these cars are driving down the road in Canada.

Mr. LIU: Yeah.

KASTE: I mean, I could reach out and touch them.

Mr. LIU: Yes.

KASTE: There's nothing separating the U.S. and Canada here - no fence, no hedge, not even much of a shoulder on that Canadian road. In fact, the main way to spot the border is by the fact that it's supposed to be kept clear of obstructions. There are no trees or structures allowed within 10 feet of the boundary line. It's something Liu found out the hard way when he built a retaining wall that jutted three feet inside that buffer zone.

Mr. LIU: The Boundary Commission stopped us and said to tear the wall down.  They gave us 45 days to tear the wall down or they would come and tear it down themselves.

KASTE: Liu had never even heard of the International Boundary Commission.  It's the bi-national entity that's in charge of marking the border. So he sued to keep his wall with the help of the Pacific Legal Foundation, a conservative group funded in part by property developers. Lawyer Brian Hodges says the International Boundary Commission overstepped its authority when it threatened to tear down Liu's wall.

Mr. BRIAN HODGES (Lawyer): If an international organization can come in and unilaterally expand the scope of its power to include the regulation of private affairs, then you're not safe. And I don't want to sound like an alarmist, but that's the truth.

KASTE: Soon the Bush administration weighed in on Liu's side. It fired the American representative on the Boundary Commission, Dennis Schornack, after he insisted that the wall be moved back. But Schornack isn't going quietly. His lawyer, Elliot Feldman, says the president can't fire him.

Mr. ELLIOT FELDMAN (Lawyer): The commissioner is appointed by  the president, but he doesn't serve the president. He didn't take his oath to the president for this appointment. He took the oath to the treaty.

KASTE: Feldman accuses the administration of letting the  ideology of property rights trump the needs of border security.

Mr. FELDMAN: If this were permitted, there would be no  principled basis for stopping anybody else from doing the same thing. So you would have no visible border anymore and the RCMP on one side and the U.S. border patrol in the other wouldn't be able to police the border, wouldn't be able to patrol it.

Ben Barros

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July 30, 2007 in Land Use | Permalink | Comments (0) | TrackBack (1)

Saturday, July 28, 2007

Gee's Bend: Quilt Lawsuit and Library of Congress Photos

Pettwayhouseloc So the lawsuit by a couple of Gee's Bend artists has hit the New York Times.  Not often that rural Alabama lawsuits make it that far, which is reason enough for propertyprof to take notice. This will be a great topic of discussion in my trust class this fall.  Sounds like the collective of quilters has some pretty interesting arrangements:

The quilters’ collective, an informal group of about 40 members, pays $150 a month to rent a former day care center marked by a small, hand-painted sign, where one room is stacked floor to ceiling with quilts. Small quilts go for $200 to $1,000, while bed-sized ones are priced at $950 to $7,500.

When a sale is made, half the money goes to the quilter and half to the collective, which periodically disburses dividends to all members. Royalties from reproductions of the quilts go into the foundation, which now contains $147,000. The system was designed to forestall jealousy, protect elderly quilters who can no longer sew, and acknowledge the interdependent nature of the community, where many quilters are related and styles were handed down from mother to daughter.

Geesbendquilter_3 This'll generate some great discussion, I am sure.  And we never want to miss an opportunity to present some lovely photographs from our friends at the Library of Congress, taken by Arthur Rothstein in 1937, including a photograph of three quilters (at right).

Update: Our friends over at blackthreads and at the art law blog are talking about the story as well.  Here's Auburn University's website on the Quilts of Gee's Bend.

Alfred L. Brophy
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July 28, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, July 27, 2007

Anti-(Undocumented) Immigrant Ordinance Struck Down

The Hazleton, Pennsylvania ordinance barring undocumented immigrants from renting property was struck down on constitutional grounds. The U.S. District Court for the Middle District of Pennsylvania invalidated the law invalidated the law mainly on preemption grounds in that the local government sought to regulate immigration law, which is an area of law over which the federal government has primary jurisdiction under the Constitution.  The court relied on other arguments to strike down the law, including the Due Process Clause of the 14th Amendment, which according to the court protected the tenants' property interests in their apartments and landlords' interests in the rights to income on their property. The NY Times article about the opinion is found here.

I was particularly struck by footnote 62, which quoted a dissenting opinion by Justice William O. Douglas in Lindsey v. Normet, 405 U.S. 56, 82 (1972).  It said, "[m]odern man's place of retreat for quiet and solace is the home.  Whether rented or owned, it is his sanctuary.  Being uprooted and put into the street is a traumatic experience."

Rose Cuison Villazor 

July 27, 2007 | Permalink | Comments (0) | TrackBack (0)

New Jersey Supreme Court sides with Homeowners Association

Well, this result was predictable.  Yesterday the New Jersey Supreme Court issued a decision in Committee for a Better Twin Rivers v. Twin Rivers' Homeowners Association.  It held that the Twin Rivers' Homeowners Associations rules regulating political speech on private property do not interfere with New Jersey's constitutional guarantee of free expression.

This article quotes Rutgers Law prof Frank Askin (counsel in the case) that it signals that the New Jersey Supreme Court is  "pulling back from their stance in taking the lead in extending rights under the state constitution."

Here's a link to WBUR's The Connection show on the case from August 2002.  It's a great show--I highly recommend it.  And here's the Twin Rivers' Community Association webpage--makes for so good discussion in class.

Thanks to our friends at concurring opinions for this news.

Alfred L. Brophy
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July 27, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 25, 2007

Why Conservation Is Failing and How It Can Regain Ground

Freyfogle Why Conservation Is Failing and How It Can Regain Ground is Eric Freyfogle's new book from Yale University Press.  The YUP description is as follows:

Critics of environmental laws complain that such rules often burden people unequally, restrict individual liberty, and undercut private property rights. In formulating responses to these criticisms, the conservation effort has stumbled badly, says Eric T. Freyfogle in this thought-provoking book. Conservationists and environmentalists haven’t done their intellectual homework, he contends, and they have failed to offer an understandable, compelling vision of healthy lands and healthy human communities.

Freyfogle explores why the conservation movement has responded ineffectually to the many cultural and economic criticisms leveled against it. He addresses the meaning of good land use, describes the many shortcomings of “sustainability,” and outlines six key tasks that the cause must address. Among these is the crafting of an overall goal and a vision of responsible private ownership. The book concludes with a stirring message that situates conservation within America’s story of itself and with an extensive annotated bibliography of conservation’s most valuable voices and texts—important information for readers prepared to take conservation more seriously.

Propertyprofs ought to be familiar with Freyfogle's important 2003 book The Land We Share: Private Property and the Common Good.

Alfred L. Brophy
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July 25, 2007 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2007

More on Statues and Monuments: Roger Taney and the Dred Scott Decision

As I am working on my paper on Thomas Ruffin's moral philosophy, "Dealing with the Sins of the Forefathers" from the Washington Post on arrived in my in box.  (Thanks to Peter Storandt.)  The story arises from a controversy in Maryland right now, where some want to remove a bronze image of Chief Justice Roger Taney from the State House in Annapolis and other from the Federick City Hall.  The story quotes descendants of both Scott and Taney--Dred Scott Madison II and J. Charles Taney:

"If we want to get into the business of taking down statues of founding fathers who were flawed, we're going to have to get to a lot of people," Taney, 60, said in an interview from his home in Connecticut. "All of the men of the South -- Jefferson, Washington -- all were flawed in this regard."

From his home in Texas, Madison, 48, agreed. "Someone's statue? If you move it, where do you end? Do you go down South and start removing all of the statues of Confederate officers? It's part of American history. You can't hide it."...

Mighty interesting story, which touches on central issues of monument law.  Harvard Law School has already dealt with some of this:

"It was a profoundly disturbing decision that literally ripped a nation in half," said Harvard law professor Charles J. Ogletree, who noted that his school removed a painting of Taney from its library in 1992. "It's no surprise that some of the current thinking is that it is not only inappropriate to celebrate him but that any recognition of Taney as anything other than a blight on the federal judiciary is unacceptable."

I have a few thoughts on Dred Scott as a site of reparations talk in this paper.

Alfred L. Brophy
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July 23, 2007 | Permalink | Comments (1) | TrackBack (0)

Peer Review: Rising or Setting?

Legal academic blogs have been buzzing recently about Harvard's new peer-reviewed journal.  Larry Solum and Brian Leiter have both written about the Journal of Legal Analysis.  Based on the Journal of Legal Analysis' board of editors, it will be heavily slanted toward law and economics; I hope that the full board will be a little more representative of the spectrum of legal analysis. But I'm grateful for anything that increases the role of professionals in the publication process and I suspect this will be a huge success.  There are already a lot of outlets for serious, peer-reviewed scholarship and that, along with the trend toward publishing monographs with university presses,I think we're close to a tipping point in the legal academy.

I have a few thoughts on the economics of legal scholarship in this short paper, which focuses on the incentives law schools have to improve their law journals (including increased faculty involvement).

However, the rest of the academy may be going in the other direction.  Danny Sokol has just called my attention to Glenn Ellison's "Is Peer Review in Decline?"  Ellison documents the decline in the faction of papers in top economics journals written by economists from top departments.  Perhaps, he speculates, this is due to the dissemination of papers on the internet.  His abstract follows:

Over the past decade there has been a decline in the fraction of papers in top economics journals written by economists from the highest-ranked economics departments. This paper documents this fact and uses additional data on publications and citations to assess various potential explanations. Several observations are consistent with the hypothesis that the Internet improves the ability of high-profile authors to disseminate their research without going through the traditional peer-review process.

So, that leads to the question whether peer review is increasing or decreasing.  And this may spark the next round of discussions in legal academic blogs on the role of the internet in scholarship....  (It seems to me that this may also be indicative of the oft-mentioned democratization of education--of terrific faculty at schools throughout the country.)

Alfred L. Brophy
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July 23, 2007 in Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Joireman on New Property Rights in Sub-Saharan Africa

Sandra Fullerton Joireman (Wheaton College) has posted Enforcing New Property Rights in Sub-Saharan Africa: The Ugandan Constitution and the 1998 Land Act on SSRN.  Here's the abstract:

Many Sub-Saharan African countries are embarking on major changes in their property rights law with the goal of achieving more vigorous economic growth and alleviating poverty. Uganda has been at the forefront of these changes in property rights in land with Constitutional change and a new land law. The Ugandan land law encapsulates recent efforts to formalize the informal property rights that exist. This article uses paired case studies to examine the implementation and enforcement of the 1998 Land Act in Uganda. There have been three major impediments to the implementation of the Land Act: lack of capacity, corruption and customary law. While the new land law in Uganda has been necessary to achieve a change in property rights, it has faced obstacles in its implementation that undermine the achievement of secure private rights to land.

Ben Barros

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July 23, 2007 | Permalink | Comments (0) | TrackBack (0)

Smith on IP as Property

Henry E. Smith (Yale Law School) has posted Intellectual Property as Property: Delineating Entitlements in Information on SSRN.  Here's the abstract:

This Article proposes that intellectual property's close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms of forgone use than in the law of tangible property. But if intellectual property does not solve a problem of allocation to information, it can play a role in allowing those who find and develop information to appropriate the return from their rival inputs. It is on the cost side that exclusion emerges as a possible shortcut: exclusive rights in information are simple, indirect, and low-cost devices for solving the problem of appropriating the return from these rival inputs. Building on a framework that identifies exclusion and governance as complementary strategies for defining property rights, the Article derives some propositions about which factors can be expected to push toward and away from exclusion in delineating entitlements to information. The role that exclusion plays in keeping the system of entitlements over information modular - allowing information to be hidden behind metaphorical boundaries - is both its strength and its weakness. Because exclusion is both more costly and potentially more beneficial as interconnected information becomes more valuable, it is an empirical question whether we would expect more exclusion - and whether it would be desirable. The Article uses this information-cost theory to explain some of the basic differences between the more tort-like copyright regime and the more property-like patent law. The information-cost theory also has implications for suggestive sources of empirical evidence on structures of entitlements, such as rules within business organizations. Intellectual property, like property in general, can be seen as (at best) a second-best solution of a complex coordination problem of attributing outputs to inputs.

Ben Barros

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July 23, 2007 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Cramer on Eminent Domain for Private Development

Benjamin D. Cramer (Center for Business Law and Regulation) has posted Eminent Domain for Private Development - An Irrational Basis for the Erosion of Property Rights on SSRN. Here's the abstract:

Municipalities have become increasingly bold in their use of eminent domain. This sovereign power was once reserved for public works, but municipalities have increasingly used eminent domain for such putatively private projects as building factories, shopping malls, and upscale condominiums - using the increased tax revenue that these projects will produce rather than the public's ability to make use of the development itself to justify their actions. This Note [written prior to the Supreme Court's decision in Kelo v. New London] explores the controversial exercise of eminent domain for the purpose of promoting private development. After tracing the history of the eminent domain power in America, this Note suggests a judicially manageable test for determining the validity of a proposed taking. Those acts that are traditionally within the scope of the eminent domain power should be treated as presumptively valid, whereas takings for the purpose of transferring property to private entities should be subjected to a higher level of scrutiny. This solution will not prevent all takings for the purpose of private development; it would, however, acknowledge the limitations imposed by the Fifth Amendment's Public Use Clause and limit the use of eminent domain to those projects that truly benefit the public.

Ben Barros

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

Saturday, July 21, 2007

Another Hippie Property Song

It's a Saturday in July--so a nice time for something light.  We'll be back to talking about  note topics for the new crew of law review soon enough.

Carl Christensen reminds us--how could we possibly forgot this?--that the Five Man Electrical Band has a classic of hippie property jurisprudence, Signs.  And of course Ben's been humming the song while taking these cool pictures of Cape Cod.  Check out these lyrics:

And the sign said anybody caught trespassing would be shot on sight.
So I jumped on the fence and yelled at the house, Hey! what gives you the right
To put up a fence to keep me out or to keep mother nature in.
If God was here, he'd tell you to your face, man you're some kinda sinner.

Those lyrics remind me that one of these days we need to talk about the relationship of William Blackstone to Christianity and to property (a topic of much importance to Hawaiian missionaries).  In the interim, you may be most interested in my colleague Bill Brewbaker's paper Found Law, Made Law and Creation: Reconsidering Blackstone's Declaratory Theory.

Carl's provided this link to a youtube broadcast of it, below.

And, as long as we're talking about songs with property themes, how about The Kinks' Coming Dancing:

They put a parking lot on a piece of land
Where the supermarket used to stand.
Before that they put up a bowling alley
On the site that used to be the local palais.
That's where the big bands used to come and play.
My sister went there on a Saturday.

More nominations?

Alfred L. Brophy
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July 21, 2007 | Permalink | Comments (1) | TrackBack (0)

Thursday, July 19, 2007

Property Signs - Cape Cod Edition

Regular readers will know that we like to talk about property signs here at PropertyProf.  Earlier this week I took a couple of pictures of signs on the beaches here in Orleans, MA, where we've been coming for vacation for a few years.  Al and Carl will be amused to know that I was humming "Signs" by the Five Man Electrical Band to myself while I was taking some of the pictures.  There are two main beaches in Orleans, Skaket on the Bay side and Nauset on the Ocean side.  We spend most of our days on Skaket, where the water is warm and the tide goes out a long way (over a mile), leaving behind tide pools that are lots of fun for kids to splash around in.  Skaket isn't a long beach, and at high tide things can get a little tight.  There are three private houses at one end that have a small strip of private beach, leading to this sign:


What I like about this example is the combination of the "End of Protected Beach" sign and the private beach sign -- the "this is private property, keep off" message comes through, but the overall vibe is more "if you come over here and drown, don't blame us."  Of course, people on the Cape tend to be polite and bourgeois, so there is no need to make the sign too pointed.

Over at Nauset, where we often go in the evening, there is this sign:


The dunes are prone to erosion and are habitat for the endangered piping plover.  I think the two signs together make an interesting pair.  They both are all about the right to exclude, but the right is being used for different purposes in each situation.  Maybe I'll use the signs when I'm teaching the right to exclude this year.  Is the use of the right to exclude in one situation better in some way than the other?  Discuss.

Ben Barros

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July 19, 2007 in Teaching | Permalink | Comments (1) | TrackBack (0)

Historic Preservation in Tuscaloosa

Walkerpercy This morning brings another great story from my local paper, the Tuscaloosa News, on the efforts to preserve one a landmark in town--an antebellum mansion.  The whole story is worth a read (you may have to register with the paper--it's free), but the property lawyer in me is particularly interested in the concluding paragraphs:

After changing hands several times following Drish’s death, the home passed from private hands in 1906 to the Tuscaloosa Board of Education, which used it as a school.

In the 1920s the board rented the building to Tuscaloosa Wrecking Service and the building, with the company’s name over the first floor and “AUTO PARTS" over the second floor in large white-on-black letters, became the subject of a 1936 photograph by Walker Evans, co-author of the Depression-era classic, “Let Us Now Praise Famous Men."

In 1940 the Drish House was purchased by the nearby Southside Baptist Church, which built a sanctuary abutting the house. The church used it sparingly over the years until it closed its doors for good three years ago because of a dwindling congregation.

Remaining church members held onto the deed to the house until last week, said Bobby Ledbetter, a former church member who was instrumental in the handover to the preservation society at no cost.

“We hope it is finally in good hands now and that the preservation society will be able to fix it up and restore it to what it used to be," he said.

Endnote: I've illustrated this post with Walker Evans's photograph, from the Library of Congress' Collection.  More photographs here.

Alfred L. Brophy
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July 19, 2007 in Land Use | Permalink | Comments (1) | TrackBack (0)

Monday, July 16, 2007

Hippie Jurisprudence: The Rolling Stone 40th Anniversary Issue

Rollingstone1967 Just on the heels of my post on lyrics you might use in class (mostly from the 1960s), comes the most recent issue of Rolling Stone into my mailbox.  Very close readers of the legal blogosphere may recall that I read Rolling Stone (as a way of keeping connected to my students, although that strategy doesn't work).  This one, however, has got a lot to talk about.

First, the on-line version has an interactive map, which I recommend--click on San Francisco and you'll get part of Grace Slick's White Rabbit.

Second, an article by Princeton University historian Sean Wilentz (author of such volumes on the nineteenth century as Chants Democratic and The Rise of American Democracy.)  Wilentz locates 1967 as the start of the culture wars: free love & drugs vs. stability.  Locating major trends in American culture in a single year is always hard--though there have been some really successful books built around years (Kenneth Stampp's 1857; Louis Mazur's 1819 immediately come to mind.)  And while I would have emphasized more of the counter-culture and less of the conservative response were I fortunate enough to be writing for Rolling Stone, the essay's well worth a read.

But to return to the story; we're spoken a little bit about aloha jurisprudence.  And now I think we might want to talk a little bit about hippie jurisprudence of property.  "Steal this Book" is a rather depressing account of respect for law and property.  But I wonder if there's something more serious that can be done here?  Legal historians spend a good deal of their energy trying to find ways to link larger culture to the rhetoric and behavior of judges.  So the question is natural: did judges adopt a language or reasoning style that sprang from the hippies?

In the context of the summer of love (and its wake), one wonders how attitudes towards squatter's rights, for instance, might have changed.  (In fact, this issue of Rolling Stone talks a little about squatting--Owsley, the king of LSD, and his wife "now live in Australia forty-five minutes from anywhere on 120 acres of land he claimed by squatting on it like a pioneer.")  Did judges adopt more communal approaches to property or alter the law in ways that might suggest hippies' ideas?  Just so happens I think there may be a few cases from the early 1970s that echo hippie rhetoric. 

Let me suggest a few in particular.  One is about beach access--from the early 1970s.  Then there is U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), which protected hippies from discrimination in food stamps.  I'm not quite sure that's what I'd call hippie jurisprudence, but it grows from a core of values of non-discrimination, which sound rather "hippian."

Then there's the anti-hippie ordinance (which prohibited people from sitting in a park at Carmel-by-the-Sea), which the California Supreme Court struck down in 1971 in Parr v. Municipal Court, Cal.3d 861, 479 P.2d 353 (Cal. 1971).

Actually, a propos of monument law, the ordinance prohibited sitting on public monuments (among other things):

On any public property it shall be unlawful for any person to: * * * ((2)(b)) Climb any tree; or walk, stand or sit upon monuments, vases, fountains, railings, fences, planted areas, or upon any other property not designed or customarily used for such purposes, or to sit on any sidewalks or steps, or to lie or sit on any lawns.

The city argued in Parr that hippies threatened to destroy the community:

Carmel also urges the court to examine the ‘historical context and the conditions existing prior to’ enactment of the ordinance. We hope the court will not shut its eyes to ‘matters of public notoriety and general cognizance.’ We hope the court has seen the instant slum created in the Haight-Ashbury. We hope the court has seen the deterioration if not destruction of the Telegraph-campus in Berkeley; we hope the court has seen the squalor and filth of the communes in Big Sur, and the damage caused by the sheer numbers of this transient phenomenon. The court may be aware that Carmel had become a meeting place-a mecca-for the hippies who had become disenchanted with the Haight-Ashbury and Berkeley. Regarding this ordinance we hope that the court observed the ‘conditions existing prior to its enactment.’ The mass of humanity that occupied the park smothered the grass by their very numbers. The grass competed with and struggled against the overwhelming effect of heavy usage-cigarettes, bottles, knives, and just plain people.

But perhaps the case has more to do with the post-World War II opposition to racial discrimination than with hippies, for the court invoked Justice Murphy's concurrent in Oyama, which invalidated California's Alien Land Law (and it also cited some of Jacobus tenBroek's work on the fourteenth amendment, which similarly drew on the post-war optimism about the broad meaning of the fourteenth amendment's equality principle):

‘The more basic purpose of the statute was to irritate the Japanese, to make economic life in California as uncomfortable and unprofitable for them as legally possible. It was thus but a step in the long campaign to discourage the Japanese from entering California and to drive out those who were already there.’ (Oyama v. California (1948) supra, 332 U.S. 633, 657, 68 S.Ct. 269, 280, Justice Murphy concurring.) In the instant case, it appears that the purpose of section 697.02 is to irritate youthful hippies and to make their existence in Carmel as uncomfortable as possible by closing to them effective use of those public places where they choose to congregate.

It also referred to a three-judge panel's opinion in Wheeler v. Goodman, 306 F.Supp. 58 (D.C. N.C. 1969), which has this memorable phrase from Judge Craven: " A man is free to be a hippie, a Methodist, a Jew, a Black Panther, a Kiwanian, or even a Communist, so long as his conduct does not imperil others, or infringe upon their rights."

I guess if you want to study the central hippie influence on property law, you need to be looking for places where music influenced (or at least correlated with) how people think about property.  So Joni Mitchell's Big Yellow Taxi comes to mind immediately.  (See below for a propertyprof first--a link a a youtube video of Joni Mitchell in concert.)  Propertyprofs should, of course, be familiar with David Callies' similarly titled Preserving Paradise.

Alas, I thought that I might have been the first person to invoke the phrase hippie jurisprudence.  However, Jon B. Hultman beat me to it with a note--amusingly titled--"Administrative  Denaturalization: Is There 'Nothing You Can Do That Can't Be [Un]done'?"--in volume 34 of the Loyola of Los Angeles Law Review in January, 2001.

All of this is pure speculation on my part.  And I stand ready to be corrected.  This has happened before.  When Justice Samuel Alito visited Tuscaloosa last spring I asked him about whether there is any evidence of his judicial restraint and skepticism of extending precedent in his 1975 Yale Law Journal note (previously discussed here--where I suggested some links between Ben Barros' work and Justice Alito's note).  He said flatly, "I don't think so."  End of another intriguing idea for an essay!

I'd be interested if propertyprof readers have any other instances of hippie jurisprudence in mind.

By the way: I'm posting this from the Ronald Reagan McDonalds in Northport, Alabama.  It's the only McDonalds in the country where President Reagan ever ate (so far as we know).  Wifi in McDonalds in Northport, Alabama?!  The times, they are a-changin'.  I'm guessing President Clinton ate at large percentage of them.  All of this reminds me of one of my favorite quotes from Ronald Reagan, during, as I recall, his campaign for governor: hippies dress like Tarzan, have hair like Jane, and smell like Cheetah (or something like that).  Now that's great politics.

Update: Carl Christensen provides this link to a record with songs from 1971 (the year Parr was decided)--nice samples, too.

Alfred L. Brophy
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July 16, 2007 | Permalink | Comments (1) | TrackBack (0)

Thursday, July 12, 2007

Menell on IP and the Property Rights Movement

Peter S. Menell (Boalt) has posted Intellectual Property and the Property Rights Movement on SSRN.  Here's the abstract:

The article examines the recent efforts of the Property Rights Movement to expand the “property tent” to emcompass intellectual property. In eBay v. MercExchange, a case addressing the standard for injunctive relief in patent cases, some property rights advocates argued that the Supreme Court should look to trespass and encroachment cases to establish a strong presumption favoring a right to a permanent injunction. More generally, Professor Richard Epstein has suggested that “structural unity” between real and intellectual property should guide courts and legislatures to use the real property mold in evolving intellectual property law. This article shows that the origins, philosophical foundations, and economic ramifications of real and intellectual property are quite distinct and that uncritically basing intellectual property law on a real property analogy is likely to cause more harm than good. The article also suggests that property rights advocates' effort to expand the “property tent” to include intellectual property is likely to backfire, calling attention to the interdependency of resources and the need for a significant government role in governing allocation and use of property.

Ben Barros

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July 12, 2007 in Intellectual Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Dana on Reframing Eminent Domain

David A. Dana (Northwestern) has posted Reframing Eminent Domain: Unsupported Advocacy, Ambiguous Economics, and the Case for a New Public Use Test on SSRN.  Here's the abstract:

The two eminent domain reform alternatives currently on the political agenda are a flat ban on condemnations or a ban on only economic development condemnations coupled with continued allowance of blight condemnations (the approach in most reforming states). Although the possible effects of reform are central to the current debate, scholars have not carefully addressed those effects. With regard to the quantitative effects of reform, this Article uses an accessible model to demonstrates that: (1) 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; (2) 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); and (3) the extent to which alternative means of subsidizing new development (such as tax relief) will offset the loss of eminent domain depends on the level of competition among localities for new development prior to ban or restrictions on the use of eminent domain. We can say less about the quality of the development after eminent domain reforms than we can about the quantity of development after eminent domain reforms, as 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. Given that, a new approach to the public use component of eminent domain law is needed.

Ben Barros

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July 12, 2007 in Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Property, Citizenship and Social Entrepreneurism Workshop

Like Ben (and many other readers of this blog), I will be attending the Law and Society conference in two weeks.  Before that, I will be attending another conference, which focuses on property law.  The Center on Property, Citizenship and Social Entrepreneurism at Syracuse University College of Law, in conjunction with Durham University's Department of Law, will be sponsoring a workshop on comparative, transnational, and emerging issues in property law.  It will be held in Durham University on July 18-19, 2007.  I look forward to meeting some of you at either conference.

Rose Cuison Villazor   

July 12, 2007 in Conferences | Permalink | Comments (1) | TrackBack (0)

On the Road

I'm off to Cape Cod for vacation next week, then will be in Berlin for Law and Society the week after that.  I'm not sure what my internet access will be, so blogging from me might be light for a bit.  I hope to be able to post, though, especially from Berlin.

Ben Barros

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July 12, 2007 in About This Blog | Permalink | Comments (1) | TrackBack (0)