PropertyProf Blog

Cemetery Law in the News

Thanks to Carl Christensen for two recent news stories on cemetery law.  First, one on relocating graves for the expansion of O'Hare Airport.  Second, one on the latest on the Whole Foods construction on Oahu.  From the Honolulu Star Bulletin article (linked to above):

Work on the planned Whole Foods Market store in Kakaako has stopped again after the discovery of still more remains at the construction site, bringing the count to 58.

The Native Hawaiian Legal Corp., meanwhile, filed a motion seeking a temporary restraining order yesterday on behalf of cultural descendant Paulette Kaleikini to stop the removal of any more human remains from the redevelopment site.

In the motion, NHLC attorney Moses Haia asks that, in light of the additional finds, construction be halted at the entire Ward Village redevelopment site.

Propertyprof readers will recall that we've been following this story for a while.  The image of Kakaako from the 1920s is from the University of Hawaii's Center for Oral History.

Al Brophy
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Reminder -- Sept. 15 Deadline for AALS Junior Workshop Panel Submissions

Just a reminder that the deadline for submissions for the AALS Property Section Junior Scholars Works-in-Progress Panel is September 15.  Details on the panel, and instructions for submissions, are available here.

Ben Barros

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Junior Property Scholars Conference - February '08

On February 8 and 9, 2008, I’ll host a works-in-progress conference for junior property scholars at Widener Law School in Harrisburg, PA.  I’m pretty flexible on the definition of “junior property scholar,” though the basic rule of thumb is teaching for six or fewer years.  People who are from outside the U.S. or teach in related fields would be very welcome.

The basic idea is to give junior people a forum to get feedback on their scholarship and to get to know each other.  There will be two types of presentations.  First, people with a paper that is pretty far along can submit their paper in advance for people to read before the conference.  The conference is timed in part to allow people to get drafts ready for the Spring law review submission season.  Second, people with early-stage ideas can present their thoughts to the group to get feedback.

The exact structure of the conference will depend on how many people want to attend.  To give me a rough head count, please e-mail me ([email protected]) if you think you might want to join us.   Please note that because this is a works-in-progress conference, we’ll ask attendees to cover their travel and hotel costs.  We’ll cover the meals.

Ben Barros

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Anderson on Teaching the Right to Exclude

Jerry L. Anderson (Drake University Law School) has posted Comparative Perspectives on Property Rights: The Right to Exclude on SSRN.  Here's the abstract:

A comparative perspective can help students understand that the bundle of rights we call property can be allocated in a variety of ways, in order to serve societal interests. This article examines two variations on the right to exclude, which the American Supreme Court has declared to be essential to property ownership. Laotian hunting rights allow public access to private lands, clearly violating the right to exclude but providing important public benefits. Likewise, the right to roam in Britain qualifies the right to exclude to allow public hiking on private land. These examples help students realize that property rights represent a balance between private and societal interests.

Ben Barros

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At last some honesty (and perspective) about rankings

In the wake of Appalachian State's defeat of Michigan, there has been interminable discussion around my college town about rankings of college football teams.  Almost rivals the feeding frenzy around the US News rankings of law schools--almost, but not quite.  At last this morning's Newsday brings some honesty about rankings, a quotation from the man who started the AP rankings of college teams back in 1936:

The idea of a national poll, Alan Gould said when he introduced it for AP in 1936, was "to develop interest and controversy between football Saturdays. Newspapers wanted material to fill space between games. That's all I had in mind, something to keep the pot boiling. Sports was living off controversy, opinion, whatever. This was just another exercise in hoopla."

Isn't what this law school rankings business is all about--some more hoopla?  It sells some copies of US News, gives deans and students some bragging rights, and gives us in the academy something to shoot for and something to talk about.  But Mr. Gould helps us keep these sorts of things in perspective.

Now, back to work on my essay on Thomas Roderick Dew's Digest of the Laws, Customs, Manners, and Institutions of Ancient and Modern Nations.

Wyman on Just Compensation

Katrina Wyman (NYU) has posted The Measure of Just Compensation on SSRN. Here's the abstract:

This article is a response to a little-noticed aspect of the reaction to the U.S. Supreme Court's 2005 decision in Kelo v. City of New London: the renewed discussion that the case has prompted about how much compensation homeowners should be paid when governments take their houses.

Since Kelo, there have been many proposals to increase the compensation that governments have to pay when they take property. These proposals are aimed at deterring governments from taking property in the first place and increasing the compensation that takees receive. In light of questions that three justices asked during the oral argument of Kelo about compensation for eminent domain, some observers have predicted that the Supreme Court might take a case about compensation for eminent domain.

I argue that the current debate about compensation for eminent domain is being conducted within too narrow a framework because many of the existing proposals start from the same assumption about the appropriate measure of takings compensation. Many of these proposals, like current compensation law, assume that takings compensation ideally should leave takees subjectively indifferent to a taking. I critique the idea that takings compensation should aim to leave takees subjectively indifferent to a taking. I argue instead that we should aim to leave takees objectively indifferent to a taking. Furthermore, I sketch an objective compensation measure that contrasts with the subjective ideal that underlies existing takings compensation law and many of the current reform proposals.

Ben Barros

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Strang on Remedies for Abuse of Easements

Lee Strang (Michigan State) has posted Damages as the Appropriate Remedy for 'Abuse' of an Easement: Moving Toward Consistency, Efficiency, and Fairness in Property Law on SSRN. Here's the abstract:

The current majority position - what I will label the American rule - is that the proper remedy for 'abuse' or 'misuse' of an easement is an injunction. In this Article, I argue that courts should move away from this position and adopt instead a rule permitting courts to award damages when two conditions are met: (1) when the dominant tenant's servicing of nondominant land does not pose an unreasonable burden on the servient estate; and (2) when the cost to the dominant tenant of ceasing his servicing of nondominant land is substantially greater than the benefit to the servient tenant.

I call this the Brown rule after the Washington Supreme Court case, Brown v. Voss, where it found its most prominent statement. A remedy of damages instead of an injunction, under these circumstances, fits well with earlier case law, builds on courts' equitable authority and concomitant case law, accords with the broader movement in property law from property to contract concepts and remedies, and is more efficient and fair.

I first review the history of easements and argue that, at least in the United States, the common law rule was that courts would enjoin a dominant tenant's use of an easement to service nondominant land. Only in the relatively rare circumstance where legitimate use of a dominant estate could not be separated from abuse of the easement, courts would permanently enjoin - in effect, extinguish - use of the easement. The common law did not authorize courts to extinguish an easement in the normal course, simply because of its abuse by the dominant estate holder.

I will show, however, that there was much confusion among courts, counsel, and scholars on what the proper remedy was. This resulted from the continued influence of English law in this area. Consequently, I will label the remedy of an injunction for abuse of an easement the American rule, and the rule that requires forfeiture for abuse of an easement I will label the English rule.

Recently, the American rule has been challenged. Some courts have ruled that, instead, the proper remedy under certain conditions is damages. I argue below that this movement in the courts, exemplified by Brown, is consistent with and further supports claims that property law has been moving away from property-based concepts and remedies and toward contract-based concepts and remedies. I will also show that there is in the United States a broader tradition than is commonly realized of courts employing their equitable discretion to grant damages instead of injunctive relief. Lastly, I will argue that damages is more efficient and fair than injunctive relief, at least under the two conditions I outlined above.

Ben Barros

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Canada's Answer to Pierson v. Post

Bruce Ziff (University of Alberta) sent along this very interesting post on the rule of capture in Newfoundland.  If you like the rule of capture (as I do), you'll want to check out the link to Bruce's article included in the post.

Pierson v. Post is well known not just to American property law teachers and students, but is a staple of Canadian law teaching as well. I have always felt that the case was overrated as a teaching tool, though it holds a continuing fascination for some. Indeed, there has been a recent flurry of scholarly activity about the litigation (such as A. McDowell, "Legal Fictions in Pierson v. Post", 105 Mich. L. Rev. 735 (2007) D. Dharmapala & R. Pitchford, "An Economic Analysis of 'Riding to Hounds': Pierson v. Post Revisited", 18 J.L. Econ. & Org. 39 (2002); B.R. Berger, "It's Not About the Fox: The Untold History of Pierson v. Post", 55 Duke L.J. 1089 (2006)).

To my mind, a cluster of little-known Newfoundland decisions concerning the seal hunt offer a better introduction to basic property doctrine. In the late-19th century, five cases were heard before the Newfoundland Supreme Court concerning the right to pans (piles) of seal pelts left on the ice floes during the annual hunt. In essence, each contest concerned the rights of the first taker against crews that happened upon the seemingly abandoned carcasses. Who should prevail? Two approaches are advanced in the cases, neither of which adopts the simple solution found in Pierson v. Post (nor that of the dissent in that case). For more, see Ziff, "The Law of Capture, Newfoundland-Style". Comments welcome.

The cases are listed below. The most useful one from a pedagogical point of view is Clift v. Kane. I have PDF versions for those interested. Contact: [email protected]

Power v. Jackman (1859) 4 Nfld.L.R. 333 (S.C.)

Noel v. Warren (1861) 4 Nfld.L.R. 557 (S.C.)

Doyle v. Bartlett (1872) 5 Nfld.L.R. 445 (S.C., en banc)

Clift v. Kane (1870) 5 Nfld. L.R. 327 (S.C., en banc.)

Power v. Kennedy (1884) 7 Nfld.L.R. 34 (S.C.)

Ben Barros

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Advice to Law Journals: Part 7

Another installment in our continuing series on advice to law journals.

7    Think seriously about younger authors.  These pieces may be quite good and well-thought-through.  They may represent the best of the new thinking on a topic, they may be particularly well-researched and honed, because younger scholars are putting their very best efforts into the piece.  Other journals looking to land pieces by more established scholars may overlook pieces that are quite good by less-established authors.   

Then again, rookies also make some pretty common mistakes.  At some point I'd like to talk a little bit about those mistakes, including taking on too much, trying to rethink a field without a sufficient understanding of the field, and focusing on issues that aren't important.

Alfred L.Brophy
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Epstein on Kelo and Zoning

Richard Epstein has a short post on Kelo and zoning over at thepolitic.org.

Ben Barros

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Pushing the Public-Private Boundary on the Jersey Shore

Today's NY Times has an interesting article on a dispute brewing on the Jersey Shore.  A Methodist group owns virtually all of Ocean Grove.  It denied permission to some same sex couples who wanted to use a pavilion for civil union ceremonies.  The core of the dispute is the impact that acceptance of public funds and tax breaks given in return for public access has on the Methodist group's ability to control the use of its property:

The public versus private status of not only the pavilion but also much of the Camp Meeting Association’s property is at the crux of the debate.

Since 1989, Ocean Grove’s beach, boardwalk and oceanfront road have received tax-exempt status under the New Jersey Department of Environmental Protection’s Green Acres Program, which was created to encourage use of privately owned space for public recreation and conservation. In its original application for the exemption — which saves the group about $500,000 a year and is up for renewal on Sept. 15, according to Bernard Haney, the Neptune Township tax assessor — the association noted that the properties were open to the public and that the pavilion had been used by outside groups.

. . .

“They’ve taken state, federal and local funds by representing that they are open to the public,” said United States Representative Frank Pallone Jr., a Democrat who represents the area, noting that beyond tax exemptions, the group has gotten numerous government grants over the years for building and boardwalk repairs and beach replenishment. “Until now, nobody has ever said that you had to abide by the tenets of the church in deciding who uses the buildings or owns the houses.”

. . .

But Brian Raum, senior counsel for the Alliance Defense Fund, a family and church rights legal organization that is representing the Camp Meeting Association in its federal lawsuit, said the group had never represented itself as anything but a religious organization, and challenged the idea that receiving government aid meant relinquishing one’s rights. Indeed, many religious groups get state and federal grants of various types.

Ben Barros

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Lehavi on the Property Puzzle

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Property Puzzle on SSRN.  Here's the abstract:

This Essay constructs a political and institutional model of property, offering an innovative approach for addressing some of property's most puzzling features. The central thesis of this Essay is that regardless of our preferred substantive justifications for property, “dramatic” decisions about the giving or taking of property, such as the full-scale nonconsensual transfer of title and possession in land from one person to another, should be chiefly made by explicit and publicly-reasoned resolutions of governmental entities entrusted with the power and duty of collective decisionmaking - chiefly legislative and administrative bodies - supervised in turn by the institution of judicial review.

In support of this thesis, the Essay seeks to refute three prevailing, even if implicit, assumptions that guide much of current property theory: First, that governmental interventions with property are categorically more legitimate when they seek to redistribute preexisting property entitlements “downwards,” i.e. from the better-off to the less well-off. Second, that judicial review of legislative or regulatory decisions about property entrusts the reviewing court with substantially weaker powers than the court would have in adjudication of private disputes. Third, that the normative viability of the above-stated differential construction of property law necessarily hinges upon the feasibility of creating a comprehensive and unambiguous divide between private law and public law.

Ben Barros

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Advice to Law Journals: Part 6

Up until now, my advice to law journals has largely been suggestions of ways to get more and better pieces.  Now I'm going to turn to some things to avoid--or at least be wary about.

6   Approach “big idea” pieces skeptically.

Everyone's always interested in big ideas--rethinking takings doctrine, Johnson v. M'Intosh.  Every once in a blue moon something comes along that warps up out of our ways of thinking.  Richard Epstein's Takings and Frank Michaelman's "Property, Utility and Fairness: Comments on the Ethical Foundations of 'Just Compensation'," are two that come immediately to mind; Lindsay Robertson's Conquest by Law is another.  Sure, you may be reading the next two tiered theory of article III.  And a lot of times those pieces get citations; however, there's also some reason for being suspicious of the new.  We can all think of pieces that aspire to something large and that are a flop. Big think pieces ain't easy to write and it's uncommon for everyone to have been wrong all along about a major theory.  So the big think pieces--fun as they are to write and read--may not be successful.  In fact, I think they're rather unlikely to be successful.

It's time to do some empirical work on how often big think pieces are successful (for example, in terms of citations).  But for the time being I'd wary of them, while recognizing that some are very, very good.  Of course, even if wrong, they may be great "Thought Starters" and for that reason along may be something you want to publish.  So there's good reason to give them a hard look, as we say in administrative law.

Endnote: The public domain version of Rodin's The Thinker is from our friends at wikipedia.

Alfred L. Brophy
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