Monday, August 13, 2007

Advice to Law Journals: Part 2

It's been a long time since I last wrote about advice to law reviews.  Following up on my promised series, here's installment two, just in time as student editors get back to school.... 

2.  Involve faculty in the selection of note topics and their writing
    One of the great difficulties for students is selecting a topic to write on; a good topic's critical.  In fact, I think a good idea is indispensable--and if you have a good idea, even if the execution leaves something to be desired, you'll at least have something that will attract an audience and maybe promote some further work.  You're going to spend a lot of time working on a note and it's good to have something workable from the start.  Faculty often have an excellent idea of whether a topic's workable and can help from shaping the initial questions through the research and writing.  At the Alabama Law Review, each student is required to work with a faculty member in the development of the note.  It's nice to have someone who has a sense of how manageable a topic is, how to scale down unwieldy projects, and how to weld together questions and research and how to back out of one-way alleys.

Of course, related to this is the idea that students have to actually take the advice they're given.  As a student--and more so as a faculty member--I haven't always taken good advice, though I try to take as much of it as a I can recognize.  So perhaps a corollary piece of advice here is: work with faculty and listen to them.

Alfred Brophy
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August 13, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Should We Still Teach the RAP?

So asks Ilya Somin at the VC:

In legal circles, the RAP is virtually a byword for abstruse complexity, and is traditionally one of the most hated parts of the law school curriculum. Forcing law students to learn it is almost a form of hazing, much like making them learn the Blue Book.

But that's not why I'm considering dropping it. I think it should probably be dumped from introductory property courses because virtually every state and most foreign common law jurisdictions have essentially abolished it - either by providing for the creation of "perpetual trusts" or by enacting statutes suspending its operation for 90 years after the death of the previous owner. The RAP takes a good deal of time to read about and explain, and causes endless frustration for both students and property professors. I suspect that that time and energy can be better spent on more productive activities - much like the time we spend learning and applying the Blue Book.

Ilya's point about the changes to the RAP is an important one.  Pennsylvania just abolished the RAP for newly created interests (wait-and-see will continue to apply to pre-2007 interests), and I'd bet that the RAP will be abolished completely within the next twenty years.  Many of the statutory changes, however, still involve some application of the common law rule, which suggests that keeping the RAP in first year Property is a good idea.  The RAP is also something that might be hard to grasp without having some exposure to it in law school, and the Rule does come up in some odd contexts.  On the other hand, teaching it well takes at least four hours of class time.  With time scarce, I wouldn't be surprised if the RAP is increasingly cut out of Property.

Ben Barros

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August 13, 2007 in Future Interests and the RAP, Teaching | Permalink | Comments (3) | TrackBack (0)

Friday, August 10, 2007

Blumm and Grafe on Measure 37

Michael Blumm and Erik Grafe (Lewis & Clark Law School) have posted Enacting Libertarian Property: Oregon's Measure 37 and Its Implications on SSRN.  Here's the abstract:

In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it's clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.

Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in the 1970s and 1980s. But after a hiatus of a decade-and-a-half, land planning opponents put on the ballot a scheme that promised landowners either compensation or a regulatory waiver from land use requirements imposed after they—or a family member—acquired the land in question. That 2000 measure, which the voters approved as an amendment to the Oregon Constitution, was struck down by the Oregon Supreme Court for violating the state constitutional requirement that initiatives be limited to only a single subject.

Undaunted, the opponents of Oregon land use planning put another initiative on the ballot quite similar to the 2000 initiative in 2004, except that this initiative was a statutory amendment, not a constitutional amendment. Thus, it was not burdened by the concerns that led to the 2000's measure's judicial rejection. This measure, known as Measure 37, promises to transform land use regulation in Oregon and the Oregon landscape in the process.

This article explains the background, politics, and implementation of Oregon's experiment in creating what is the leading example of libertarian property in the world. The article explains early judicial and attorney general interpretations of the measure and its predecessor and focuses attention on the many ambiguities in the measure's language, particularly the uncertain scope of its express exceptions from compensation. Measure 37's proponents have attempted to export its principles to other states and, in 2006, Arizona joined Oregon as another laboratory for libertarian property. Finally, the Oregon legislature recently sent to the voters a referendum, which would attempt to clarify some of Measure 37's ambiguities, expedite regulatory waivers for small developments, but impose limits on new waivers for large developments. The Oregon electorate will decide this referendum in November 2007.

Ben Barros

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August 10, 2007 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Dagan on the Limited Autonomy of Private Law

Hanoch Dagan (Tel Aviv University) has posted The Limited Autonomy of Private Law on SSRN.  Here's the abstract:

The relationship between private law adjudication (typified as the bipolar encounter between plaintiff and defendant) and social values usually associated with much broader settings (such as the pursuit of distributive justice by state legislation) is a perennial concern of legal theory. The task of this essay is to strike the middle-ground between the voices of private law autonomy and the total instrumentalization of private law for any desirable value, purpose, or state of affairs. I claim that neither autonomist theory nor its instrumentalist counterpart provides a satisfactory account of private law. Autonomist theory is implausible because private law rests on a thick perfectionist view of society and hence cannot claim to be neutral vis-à-vis social values. But unlimited instrumentalism is also misguided because, as autonomists insist, the bipolar structure of private law litigation indeed entails certain normative constraints. These two propositions yield the main conclusion of this essay: the normative infrastructure of any private law doctrine should be responsive both to (minor) bipolarity constraints on the one hand, and to social values appropriate to the pertinent category of human interaction on the other. The essay further explores the implications of this conclusion for three specific doctrinal issues: marital property, monetary remedies for breach of entitlements, and the right of entry (into property).

Ben Barros

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August 10, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 8, 2007

Brooks on Hegel on Property

Thom Brooks (University of Newcastle upon Tyne (UK) - Newcastle Law School) has posted Hegel on Property on SSRN.  Here's the abstract:

Hegel's views on property are one of the most misunderstood aspects of his thought. We can best correct these misunderstandings only by interpreting his comments on property in full light of their place in the Philosophy of Right and the place of the Philosophy of Right within Hegel's larger philosophical system.

Hegel's Philosophy of Right is divided into three parts, each related to one another dialectically. These parts are 'abstract right [abstrakte Recht]' (PR, Subsection 34-104), 'morality [Moralität]' (PR, Subsection 105-41), and 'ethical life [Sittlichkeit]' (PR, Subsection 142-360). Most commentators have restricted their analyses of Hegel's theory of property primarily to the section abstract right in his Philosophy of Right. Others have mistaken Hegel's views on property in abstract right as a theory of private law.

Few substantively appreciate that Hegel offers an extended view of property built around very different concerns in his later discussion of 'civil society [die burgerliche Gesellschaft]' contained in the final part of the Philosophy of Right, 'ethical life'. Perhaps more importantly, it has gone relatively unnoticed how Hegel's discussion of the free will in 'Subjective Spirit' found in his larger philosophical system (ES, Subsection 440-82) relate to his discussion of the free will in 'Objective Spirit' immediately following (ES, Subsection 483-552). This is important for an interpretation of the Philosophy of Right given that this text is an elaboration of 'Objective Spirit'.

An initial test of a systematic reading of the Philosophy of Right is whether it can contribute to our understanding of the Philosophy of Right by demonstrating the explanatory force of the wider philosophical system. In this brief study, my aims are relatively modest. I will begin by explaining how the section 'Subjective Spirit' is related to the Philosophy of Right. Central to this explanation is the development of the free will from one to the other. This view helps us make best sense of the primary problem of the Philosophy of Right, namely, how the free will can will freely, not arbitrarily. The following section explains why Hegel's views on property ownership in abstract right are primarily illustrative of the initial development of the free will, rather than a complete theory of property as many have maintained. If my position is correct, then we cannot present a picture of Hegel's theory of property that exclusively considers abstract right nor can we understand abstract right as a realm of private law. This position is best arrived at after grasping the relation of the abstract right within the Philosophy of Right and Hegel's larger philosophical system.

This short essay is definitely worth a read for folks interested in the philosophy of property or in neo-Hegelian theories of property like Radin's personhood theory.

Ben Barros

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August 8, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

New Permablogger

As you can see from the masthead to the left, Rose Cuison Villazor has joined us as a contributing editor.  Welcome Rose!

Ben Barros

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August 8, 2007 in About This Blog | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 7, 2007

Love Cemetery: Restoring Access to a Slave Cemetery

Lovecemetery_2 Just read China Galland's charming Love Cemetery, which has just appeared from HarperCollins.  It  combines just about all of my interests, for it is a story about an African American cemetery in East Texas (that dates to the 1830s), which a community pulled together to clean up from 2003-06.  Garland links the account of the clean-up with her exploration of the community's history with taking land from some of its black residents.  Ah, cemeteries and land loss, memory and reparation.  Now those are some topics I'm interested in!

Here's the description from HarperCollins:

Love Cemetery is the story of one woman trying to come to terms with racism––on both personal and public levels. When China Galland visited her childhood hometown in east Texas, she learned of an unmarked cemetery for slaves––Love Cemetery. Her ensuing quest to reclaim the ground, to mark it, unearths racial wounds that have never completely healed.

Research into county historical records and interviews with local residents in Harrison County––at one time the largest slave–owning county in Texas––led Galland to the discovery of Love Cemetery, an African–American communal burial ground that the local community had been locked out of for forty years. Research became activism as she helped organize a grassroots, interracial committee, made up of local religious leaders and lay people, to work on restoring community access to Love.

Metaphorically, Love Cemetery is only one example of a much larger body of unearthed history. The author presents material that reaches back to the time of slavery and post–civil war Reconstruction, of lynchings and "landtakings" (the theft of land from African Americans). Love Cemetery shines a light on the national legacy and shame of slavery through an inspiring story of one community's reconciliation in their united effort to mark a piece of American history. The history of Love Cemetery is the history of slavery in the United States––a history that touches us all–black or white. The message of Love Cemetery is ultimately one of tremendous hope as members of both black and white communities come together to right an historical worng, and in so doing, discover each other's common dignity.

But my favorite line in the whole book:

[I]n Texas, he land belongs to the dead; descendants have a right of access to their deceased family members, regardless of how much private property they have to cross. [41]

Ah, cemetery law!

Alfred L. Brophy
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August 7, 2007 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2007

New Jersey Post-Kelo Eminent Domain Case

Last week, a New Jersey intermediate appellate court issued an opinion in Vineland Const. Co., Inc. v. Township of Pennsauken upholding a Kelo-style taking for private development.  The town had selected a private entity to redevelop an area of waterfront that included plaintiff's land.  Plaintiff wanted the option of redeveloping the property on its own.  The taking was upheld under Kelo and New Jersey equivalents.

Ben Barros

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August 6, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, August 3, 2007

Lamb and Nye on Presidential Leadership and Housing Segregation

Charles M. Lamb and Adam W. Nye (SUNY BUffalo) have posted Presidential Leadership and Housing Segregation on SSRN.  Here's the abstract:

This paper first presents a simple typology for comparing presidential leadership in federal housing segregation policy. Then, in separate sections, it surveys the development of housing segregation policy during the Truman, Eisenhower, and Kennedy administrations. Finally, in a short summary section, it integrates these findings with prior research from the Johnson through the Clinton administrations, using the presidential leadership typology presented earlier. It concludes that Truman and Kennedy exercised moderate liberal leadership in housing segregation policy while Eisenhower's administration was characterized by conservative nonleadership. By contrast, Lyndon Johnson exercised strong liberal leadership compared to the liberal nonleadership of Jimmy Carter and Bill Clinton. Like Eisenhower, Gerald Ford exhibited conservative nonleadership in this policy arena, Ronald Reagan and George H. W. Bush exhibited moderate conservative leadership, and Richard Nixon's fair housing policy qualified him as a strong conservative leader.

Ben Barros

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August 3, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Prison as Home for Homeless Sex Offender?

We have had a number of posts about residency restrictions for homeless sex offenders (see here, here, and here). The NY Times today reported that a sex offender is facing an automatic life sentence for violating Georgia's new registry law for the second time. Here's an excerpt:

"The law requires offenders to register their address and forbids them to live or work within 1,000 feet of not only schools and day care centers but also churches, swimming pools and school bus stops. It expanded the definition of a sex offender and raised penalties for violating registry requirements.

Homelessness is not an acceptable excuse. “One of the requirements when you become a sex offender is you have to have an address,” said Sgt. Ray Hardin of the Richmond County Sheriff’s Office in Augusta.

Sergeant Hardin said enforcement of the law required a dedicated investigator, a global positioning system and, each time an offender moves, hours of paperwork. At least 15 sex offenders have been arrested because of homelessness since the law took effect in July 2006, according to documents gathered through pretrial proceedings in a lawsuit brought by the Southern Center for Human Rights and the American Civil Liberties Union.

The suit argues that the law leaves offenders virtually nowhere to live. Sarah Geraghty, a lawyer with the human rights center, said she had scoured the state for homeless shelters that would accept male sex offenders and could find only one, which was full. A document from the Sex Offender Administration of the Georgia Department of Corrections, provided to a reporter by Ms. Geraghty, lists what it calls “offenders arrested for being homeless.”

Georgia’s law is not the only one that has made it hard for offenders to maintain legal residences. In Florida, the state authorized five offenders to live under a bridge in Miami after they were unable to find suitable housing that they could afford. In Iowa, a victims’ group found that offenders tried to comply with the registry law by offering addresses like “rest area mile marker 149” or “RV in old Kmart parking lot.” Critics of residency restrictions say they drive offenders underground and have little effect on the number of sex crimes.

As a tough-on-crime measure, the Georgia law was enacted easily, with supporters saying it would force sex offenders to leave the state. “Every sex offender in Georgia will now serve time in jail, and every sex offender in Georgia will be monitored after their release,” said the House majority leader, Jerry Keen, the bill’s Republican sponsor.

But the law’s opponents have called it too harsh in its penalties, too broad in its restrictions and too rigid, allowing no exceptions even when a day care center or a church opens within 1,000 feet of an offender’s pre-existing residence. One offender, Anthony Mann, was told he had to leave his house and the barbecue restaurant he owned when day care centers opened too close to both locations, according to a second lawsuit."

Rose Cuison Villazor

August 3, 2007 in Land Use | Permalink | Comments (1) | TrackBack (0)

Thursday, August 2, 2007

Fred Thompson (or his staffers) on Eminent Domain

Should you care, Republican kind-of-sort-of candidate Fred Thompson has posted his views on eminent domain.  (Hat tip Todd Z. at the VC).  He also has a post on his views about the Hazleton immigration decision that Rose noted last week.  It will be interesting to see whether eminent domain will play a significant role in the upcoming elections.  Immigration surely will.

Ben Barros

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August 2, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Junior Scholars Property Works-In-Progress Panel

Eric Claeys and I have organized a junior scholars property works-in-progress panel for the AALS meeting in New York.  Here are the details:

Call For Submissions

AALS Property Law Section Junior Scholars Works-In-Progress Panel

The AALS Property Law Section invites junior property scholars to submit works in progress for a junior scholars panel at the upcoming AALS Annual Meeting in New York  The panel will take place on Sunday, January 6, from 9:00 a.m. to 10:45 a.m.  At the panel, paper authors will have the opportunity to present their papers and receive commentary from senior scholars knowledgeable about their paper topics. 

Submissions:  Two papers and an alternate will be selected for the panel by blind peer review.  Papers should be submitted by e-mail to by September 15, 2007 with the subject line “Property Junior Scholars Panel.”  To facilitate blind review, authors should place their names and other identifying information on a separate cover page.  Authors also should alter or delete references within the text that would reveal their identities to a referee.  During the selection process, papers will be judged by how successfully they establish their contributions in a scholarly manner and by how substantially those contributions add to current property law and scholarship.

Eligibility:  The panel is open to scholars who (a) currently have a permanent or visiting appointment at an AALS member or fee-paid school; (b) have been teaching for six or fewer years; and (c) do not yet have tenure.  Papers that have been accepted for publication may be submitted for consideration, but only if they are early enough in the production process for the author to fully incorporate comments provided at the panel. 

Please direct any questions to the panel organizers, Ben Barros ( and Eric Claeys (

Ben Barros

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August 2, 2007 in Conferences | Permalink | Comments (0) | TrackBack (0)

GELPI Takings Conference at South Carolina

The Georgetown Environmental Law & Policy Institute's annual takings conference will be held at the University of South Carolina Law School on September 20 and 21.  The conference includes some interesting panels on Lucas v. South Carolina Coastal Council.  I attended GELPI's takings conference a couple of years ago and thought it was very well done.

Ben Barros

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August 2, 2007 in Conferences, Takings | Permalink | Comments (0) | TrackBack (0)

Korngold on Conservation Easements

Gerald Korngold (Case Western) has posted Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process on SSRN. Here's the abstract:

Over the past thirty years, statutes have reversed the common law and authorized private conservation organizations to hold conservation easements “in gross.” These interests allow nonprofits to control the use and development of the burdened property by preventing alterations of the natural and ecological features. Conservation easements can be held by organizations geographically distant from the restricted land.

Conservation easements bring great benefits as they support conservation, represent private initiative, yield efficiency benefits, and exemplify freedom of choice of property owners. There are costs, however: significant federal and state tax subsidies, the lack of coordinated planning and public process, class issues, stewardship failures by nonprofits, and lack of flexibility by easement holders to meet emerging needs of the community (such as for economic development or affordable housing). There is a risk to effective policy making and democratic principles when local, public land use decisions are delegated to non-representative, non-accountable private organizations.

The benefits of private conservation easements are significant, and they should be continued but with changes. The paper suggests five principles and related specific reforms that should be enacted: restoring market mechanisms in the creation of conservation easements; enhancing governance and operations of easement holders; protecting the expectations of future generation owners; achieving flexibility through expanded termination and modification doctrines; and preserving the public's power of eminent domain.

Ben Barros

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August 2, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 1, 2007

Osofsky on Geography of Justice Wormholes

Hari M. Osofsky (University of Oregon) has posted The Geography of Justice Wormholes: Dilemmas from Property and Criminal Law on SSRN.  Here's the abstract:

This Article provides a law and geography analysis of the ways in which our legal structures constrain the possibilities for justice for categories of people. It explores “wormholes” in the U.S. legal system that transport people pursuing claims under multiple theories of law into another timespace in which basic protections are absent. In particular, the Article compares the barriers faced by post-9-11 “enemy combatants” and the indigenous peoples who were this country's original inhabitants. Through an analysis of two representative case examples—José Padilla's enemy combatant designation and the taking of Mary and Carrie Dann's land—the Article considers: (1) the way in which place, space, and time structure procedural and substantive injustice; (2) how different conceptions of United States spaces impact the possibilities for remapping these wormholes; and (3) the implications of this analysis for limiting and preventing wormholes.

Ben Barros

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

Rasband and Garrett on Public Land Policy

James R. Rasband and Megan Garrett (BYU) have posted A New Era in Public Land Policy? The Shift Toward Reacquisition of Land and Natural Resources on SSRN. Here's the abstract:

Traditionally, the history of public land law has been divided into periods of acquisition, disposition, a shift to retention, and then a period of management. The paper reviews these historical demarcations of public land law and then asks whether we have entered a new period of public land policy that might be termed a period of reacquisition. The paper considers the 19.8 million acre increase in the public land base (outside Alaska) since the 1964 passage of the Land and Water Conservation Fund and the Wilderness Act. It details this federal acquisition under the Land and Water Conservation Fund, by way of land exchanges, and under a variety of other statutes. The paper also suggests that the 37 million acres of land protected under the land trust and conservation easement movement can also be understood as part of this shift to reacquisition because of substantial federal tax expenditures in the form of deductions for conservation easements. Finally, the paper considers whether federal regulation can be characterized as a form of public reacquisition, even if the underlying fee is retained in private ownership, because the regulation shifts control over land and natural resources away from private parties and to the public. The paper, for example, considers whether Section 404 of the Clean Water Act might be understood as akin to a reverse of the federal Swamp Lands Grant Acts of the Nineteenth Century.

Ben Barros

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August 1, 2007 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Conference Announcement: Urban History Group

Urban History Group Annual Conference, 27-28 March 2008, University of Nottingham First Call for sessions and papers:

Urban Boundaries and Margins

This conference will explore the concept of boundaries and margins in the context of the city. The theme is interpreted broadly to encompass not only the identification of various types of boundaries - spatial, social, cultural, economic and political ­­­- but also the processes that help create, sustain as well as contest the legitimacy and practices of such boundaries. This focus draws attention to the differences as well as the similarities between various groups and activities in the city, and explores how these could change over time.

Themed sessions will include the following:

Age and life cycle issues in urban contexts

"Them and us"; class, race, ethnicity, culture

Trangressing norms of behaviour

Shifting concepts of day and night

Marginal groups and practices

Spatial and architectural margins in the home and the city

Administrative and political boundaries

Public and private space

The representation of boundaries

Boundaries of conflict and boundaries of order

The conference committee invites proposals for individual papers as well as for additional sessions. Abstract of up to 500 words should be submitted to the conference organiser and should indicate clearly how the content of the paper addresses the broad conference theme. Those wishing to propose additional sessions should provide a brief statement that identifies the ways in which the session will address the conference theme, a list of speakers and paper abstracts. The deadline for expressions of interest for sessions and papers is 30 September 2007.

In addition, the conference will also host a new researchers forum. This is aimed primarily at those who are at an early stage in a research project and who wish primarily to discuss ideas rather than present findings. New and current postgraduates working on topics unrelated to the main theme, as well as those just embarking on new research, are particularly encouraged to submit short papers for this forum.

Graduate students can obtain a bursary to offset some of the expenses associated with attending the conference. Please send an e mail application to Richard Rodger and ask your PhD supervisor to also send a message confirming your status as a registered PhD student. The Urban History Group would like to acknowledge the Economic History Society for its support for these bursaries.

For further details please contact:

Dr David Green (conference organiser) Email: - Department of Geography - King's College London - Strand - London - WC2R 2LS - UK - Tel: 44 (0) 20 7848 2721/2599 - Fax:44 (0) 20 7848 2287

Ben Barros

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