PropertyProf Blog

Providing Homeless People Places to Sleep

I recently taught in my Property I class laws that restrict the ability of homeless people to sleep in public places. I use Joe Singer's casebook, which devotes a small section on the "right to be somewhere and the problem of homelessness" (pages 173-176). That section in particular examined Pottinger v. City of Miami, which resulted in, among other things, the creation of "safe zones" for homeless people because they had no alternative shelter.

The class discussion we had about the tension between the right to exclude versus the right of access in the context of the problem of homelessness was one of the best discussions we've had so far this semester. Many students were bothered by the criminalization of being homeless as a result of local ordinances that prohibit acts such as sleeping in public. These students believe that homeless people should continue to have a right of access to public areas, at least for purposes of sleeping.

Today, the NY Times reported that the City of Los Angeles has decided to settle a case brought by the ACLU against the enforcement of the city's ordinance that makes sitting or sleeping on the streets illegal. The 9th Circuit held in Jones v. the City of Los Angeles in April 2006 that enforcement of the ordinance is tantamount to cruel and unusual punishment. The recently agreeed settlement reached between the city and the ACLU resulted not only in the decision by the city to not appeal the 9th Circuit case's opinion but also the provision of 1,250 low-income housing units.

In my local area (Dallas, TX), a local church has decided to open up its parking lot to homeless people as a place for them to sleep at night (see here for story). Their move has generated complaints from nearby business owners who have said that the presence of homeless people have driven away customers. This conflict raises yet another tension within our private property system - the privilege to use one's property versus the recognition that we can't use our property in ways harmful to our neighbors (again, another theme from the Singer casebook). Until adequate shelter and other services are provided to homeless people, the inherent tensions within our property system will continue to manifest in various ways.

Rose Cuison Villazor

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Another Halloween

Well, it's Halloween and that means it's time for a little fun at propertyprof.  Of course I haven't had time to write a cool post, so I'll use what I used last year.

I'll begin with one of the most amusing law review articles I've ever read: James Gordon's "How Not to Succeed in law School," which appeared in the Yale Law Journal in 1991.  My favorite line among many good ones:

Just to prove that at heart they are really gentle, fun-loving people, professors will occasionally do something a little bit zany, like wear a costume to class on Halloween. This makes the students laugh and cheer. Before you laugh and cheer, however, you should check your calendar. It is often difficult to tell whether a professor is wearing a costume or not.

Of course, propertyprofs all know Stambovsky v. Ackley, 169 A.D.2d 254, 258.  Ah, what a great case.  (You may recall this entry from summer 2006 on psychological defects.)  And, along these lines, you might also enjoy Judith Richardson's book, Possessions, on the haunted landscape in the Hudson Valley.

You might find Gates v. Roberts, 350 S.W.2d 729 (Mo. 1961) of some interest, because it's about adverse possession of a house reputed to be haunted back in the 1930s.  Nice case of squatters establishing a right to a house.

Then, going back a bit further, William Sampson argued to the New York Supreme Court in 1810 that the common law ought to evolve.  He pointed out that a number of states had abandoned English law.  Then he contrasted old, superstitious the common law with the modern, American law.  Those efforts to abolish the old common law would have been in vain,

if ever and again some unsubstantial specter of the common law were to rise from the grave, in all its grotesque and uncouth deformity, to trouble our councils and perplex our judgments. Then should we have for endless ages the strange phantoms of Picts and Scots, of Danes and Saxons, of Jutes and Angles, of Monks and Druids, hovering over us like "ravens o'er the haunted house," or ghosts "That inglorious remain Unburied on the plain."  In vain would this country advance in commerce, this and industry; in vain science and philosophy make their abode among us; in vain propitious heaven designate with a favoring hand our station on the globe, and distinguish us by freedom and prosperity, if we mar our own destiny by such servile adherence.

Never know where images of witchcraft will appear in conjunction with the common law, do we?

Maybe next year for Halloween, I'll link to some ghost stories where property is important.... Then again, maybe I'll try to figure out John Dryden's role in William Sampson's thought....

Endnote:  The image of the St. James Hotel in Selma--which looks like it might be haunted! and is rumored to be (nice article from the Selma Times-Journal, one of our nation's oldest newspapers)--comes from our friends at the Library of Congress' Historic Buildings Survey, conducted during the 1930s.  Check out their website for some great photographs.  They're a source I often use when looking for public domain illustrations for propertyprof entries. 

Alfred L. Brophy
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Advice to Law Journals, Part 14

This is one I feel really strongly about.

14    allow authors to submit pieces in any way they’d like; don’t limit to expresso or snail mail or email.

Law journals need to get good pieces into their offices in whatever way possible.  It is self-defeating to be limiting the routes they might arrive.  Articles editors--and the deans who provide the financial support for their pieces--ought to accept submissions any way possible, from courier to overnight mail, snail mail, email, and in any format--wordperfect, pdf, word, whatever.  I'm astonished that reviews won't accept submissions via wordperfect through bepress.

Endnote: The Theodore Horydczak image of a row of mailboxes is from our friends at the Library of Congress.

Alfred L. Brophy
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Freyfogle on Property and Liberty

Eric Freyfogle (Univ. of Illinois) has posted Property and Liberty on SSRN.  Here's the abstract:

Private property and liberty, particularly in the case of privately owned land, are intertwined more complexly than we commonly realize. When we study how private property operates in daily life, looking at the full array of land-use conflicts, what we see is that private rights backed by state power are as apt to restrict liberty as they are to promote it. To regain the complexity of the situation in human-inhabited landscapes is to see why we cannot start with the idea of liberty, or with any conception of natural rights, and produce a working, morally justified system of private property. To produce such a system, we need to start instead in a much different place, looking to the various ways that private property can foster the common good. Ultimately, lawmakers crafting and updating a scheme of property must choose among the many types of liberty that they want to secure, based on their assessment of the common good. Only after they have done that, choosing among the options, can we see how private property promotes liberty. Liberty, in short, is the product of a private property regime, not a point of beginning to craft such a regime.

Ben Barros

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Advice to Law Journals, Part 13

13    search authors on google before accepting a piece

In this world that respects (with good reason) double blind peer review, we're often led to think we should not investigate an author's background.  There are great, great reasons for double blind peer review.  But as long as we've dropped the pretense of double blind review, there's some good reason to investigate authors before making an offer.  You may be quite surprised by what you find; at least, the students I've worked with have been on one or two occasions.  And, along those lines, it probably makes sense to run some kind of pre-emption check; don't just look up the author, look up the subject matter of the article you're about to accept and live with in one way or another for a while.

Alfred L. Brophy
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Westermann on Property Entitlements

W. Stephen Westermann has posted Strong Versus Standard Property Entitlements: Toward a New Theory of Legal Entitlements on SSRN.  Here's the abstract:

Historically the property entitlement has been conceived as a unitary entitlement form that permits a holder to transfer the entitlement to a third party, and the third party to remove the entitlement from its holder, pursuant to a voluntary transaction. Thus, the background presumption—of legal theorists or the Supreme Court or contract law—has been that any entitlement structured as a property entitlement is subject to voluntary transfer in the same manner as any other, be it a fundamental Constitutional right or a parcel of land or a barrel of oil. This conception of a unitary property entitlement form is mistaken. Instead, there are two distinct primary classes of property entitlements: strong property entitlements and standard property entitlements. The basis for the distinction between strong and standard property entitlements is that the power of a third party to remove an entitlement from its holder via a voluntary transaction is comprised of two salient distinct powers. The first is the power to remove the entitlement by offering in exchange therefor money or a superior direct substitute for the entitlement, which power one might call "direct economic surplus inducement." The second is the power to remove the entitlement by making its transfer or waiver a prerequisite to delivery of economic surplus from some other source or sources, what might be called "indirect economic surplus inducement." A "standard property entitlement" permits a third party to exercise both direct and indirect economic surplus inducement in attempting to remove the entitlement; whereas a "strong property entitlement" permits a third party to utilize only direct economic surplus inducement in offers for the entitlement. Distinguishing between strong and standard property entitlements enables a more precise understanding of how rights protecting fundamental liberties, which are at minimum strong property entitlements, differ from most interests in land or chattels, which are standard property entitlements, as well as resolution of longstanding doctrinal confusion in areas such as U.S. constitutional law and contract law.

In addition to introducing the strong property entitlement as a new "type" or "class" of entitlement, this article sets forth a new logical organization of legal entitlements. This article asserts there are four salient types of entitlements that correspond to four salient gradations in power of a third party to remove the entitlement:

1. the liability-rule entitlement identified and named by Calabresi and Melamed—permits a third party to remove the entitlement without the consent of the holder but which requires such third party to compensate the holder in some manner;

2. the standard property entitlement—protects entitlement against removal by force, threat of force or fraud;

3. the strong property entitlement—protects entitlement against removal by force, threat of force, fraud or indirect economic surplus inducement; or

4. the inalienable entitlement—protects entitlement against removal by any means including direct economic surplus inducement.

The last three types of entitlements—the standard property entitlement, the strong property entitlement and the inalienable entitlement—may be thought of as comprising three salient classes of the property category of entitlements. Organizing property entitlements into salient classes based on third party removal power, each of which class contains a subset of specific property entitlement forms, permits precise conversations about the motivating conception of a particular property entitlement that are distinct from conversations, typified by those in the Cathedral article and its progeny, about what specific entitlement form is optimal taking into account market failure considerations such as third-party effects or collective action problems.

Finally, the article analyzes precisely the way in which an entitlement holder's autonomy with respect to an entitlement varies with the extent of removal power granted to third parties. The article posits that a holder's autonomy with respect to an entitlement is comprised of use autonomy and transfer autonomy, with possession autonomy constituting the foundational component of use autonomy common to all entitlements. The article shows that, putting aside possible effects from wealth endowment or cognitive limitations, increasing a third party's power to remove an entitlement from none (which corresponds to the inalienable entitlement) up to and including direct economic surplus inducement (which corresponds to the strong property entitlement) will increase the holder's transfer autonomy without diminishing the holder's possession autonomy. Increasing the third party's power to remove the entitlement beyond direct economic surplus inducement to include indirect economic surplus inducement (which corresponds to the standard property entitlement) will, though, reduce the holder's possession autonomy without increasing the holder's transfer autonomy. The strong property entitlement marks the critical inflection point beyond which any increase in third party removal power begins to mitigate the entitlement's possession autonomy by empowering a third party to remove the entitlement for a price less than the holder's value of enjoyment of those benefits through continued possession.

The fact that, putting aside issues of wealth endowment and cognitive limitations, holder autonomy is maximized by structuring the entitlement as a strong property entitlement does not imply that either social wealth or any particular holder's overall wealth is maximized at this level of third party removal power. It is possible that social wealth as well as the overall wealth of certain (or most) individual holders may be increased by structuring the entitlement as a standard property entitlement. When deciding whether to structure an entitlement as a strong or standard property entitlement, the issue for lawmakers is whether any gain in material wealth from increased allocative efficiency achievable by structuring the entitlement as a standard rather than strong property entitlement exceeds the cost of impairing the absolute possession autonomy that would be conveyed to each holder by structuring the entitlement as a strong property entitlement. For entitlements the primary purpose of which is to provide the holder with autonomy benefits enjoyable free from third party interference and for which any wealth creation through transfer is an incidental concern (such as, say, a right to be free from racial discrimination), it will usually be the case that such entitlements should be structured at minimum as strong property entitlements. On the other hand, for entitlements (such as a barrel of oil) for which allocative efficiency is the primary goal and where there is little, or no, concern about protecting a holder's subjective valuation, such entitlements should normally be structured as standard property entitlements.

Ben Barros

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Shooting Your Real Estate Finance Book

The WSJ Law Blog has a post about an Indiana 3L who was arrested for shooting a rifle off his balcony.  The target?  His Nelson & Whitman Real Estate Finance casebook:

The book was found in the parking lot, shot clean through by two rounds, according to investigators. . . .

The Law Blog reached out for the authors of Real Estate Transfer Finance and Development, law professors Grant Nelson and Dale Whitman . . . .

“Are you serious?” said Whitman, the former dean of Missouri Law who is teaching this semester at Wash U Law. “Wow, he must not have liked that class very much.” Pausing to reflect upon the meaning of all this, Whitman then added, “I’ve had people that say my scholarship is shot through with holes, but I’ve never had anyone prove it literally.” . . .

[Nelson] said he thought we were calling him about the mortgage meltdown, but we explained that we wanted his reaction to the Indiana shooting, which he hadn’t heard about. “That is so bizarre,” he said. “But at least he went after our casebook instead of going after people. Thank god for small blessings.” He then joked: “But it might not be so bad from West’s perspective, because that’s one used casebook now off the market.”

Hat tip:  Eugene and Hanah at the VC.

Ben Barros

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Machiavelli on Property

From Book 17 of The Prince, right after the passage that asks "whether it be better to be loved than feared or feared than loved?":

Nevertheless a prince ought to inspire fear in such a way that, if he does not win love, he avoids hatred; because he can endure very well being feared whilst he is not hated, which will always be as long as he abstains from the property of his citizens and subjects and from their women. But when it is necessary for him to proceed against the life of someone, he must do it on proper justification and for manifest cause, but above all things he must keep his hands off the property of others, because men more quickly forget the death of their father than the loss of their patrimony. Besides, pretexts for taking away the property are never wanting; for he who has once begun to live by robbery will always find pretexts for seizing what belongs to others; but reasons for taking life, on the contrary, are more difficult to find and sooner lapse. But when a prince is with his army, and has under control a multitude of soldiers, then it is quite necessary for him to disregard the reputation of cruelty, for without it he would never hold his army united or disposed to its duties.

Ben Barros

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Civil Rights History in Tuscaloosa News

Dedicated propertyprof readers will recall that I sometimes discuss charming stories related to property in my hometown paper, the Tuscaloosa News.  Although this is more about civil rights history than property, I thought that you might enjoy this story about one of our local heroes, Thomas Linton, who is a Presbyterian minister and a barber.  Here are some key excerpts:

The spirit of Linton's message at the Church of the Lord Jesus Christ on 35th Avenue in west Tuscaloosa thrives at his shop. No risque magazines make it to the table, no one smokes at the shop and a religious show flashes on the TV most days.

As a minister and owner of Howard's and Linton's Barbershop on T.Y. Rogers Jr. Avenue, he led much of the civil rights struggle in the 1950s and '60s fought on that street. He helped form the ministerial alliance with the Rev. T.Y. Rogers Jr., for whom the historical block was renamed, and led mass meetings at the First African Baptist Church that was bombed with tear gas June 9, 1964. After that, Linton persuaded the city's white leaders to hire blacks as clerks and cashiers for the first time in stores outside the black district. ...

Civil rights turbulence of the mid 1950s was starting when John Linton shined shoes as a 14-year-old at his brother's barbershop. Then, a sign still stood on the U.S. Highway 82 roadside touting Tuscaloosa as the home of Robert Shelton, imperial wizard of the Ku Klux Klan.

"I was a kid when Authurine Lucy tried to attend the University of Alabama," John Linton said in telephone interview from his home. "It was an outrage."

That February day in 1956 when Authurine Foster Lucy was suspended from the university, whites pelted her with eggs and state troopers escorted her to the black-owned newspaper, The Alabama Citizen, where a throng of more than 300 gathered. The paper was two shops away from the barber and then-beauty shop.

Robert Wade, 87, ran the linotype machine at the black newspaper. He recalled his indignation of that day.

"I had lost three brothers in World War II," said Wade, owner of a Tuscaloosa print shop. "I couldn't understand why blacks could serve their country but weren't accepted at a university."

Thomas Linton said that Lucy sought refuge in the barbershop, where beauticians helped her wash off the mess.

"It was a gathering place," John Linton said. "I saw some tremendous things happen there when I was a kid." ...

Union Morrow, a 70-year-old brick layer and Tuscaloosa resident, has barbered with Linton for 59 years. They grew up chopping cotton together on their family's small farms in Mantua, in Greene County. Linton's fortitude made a difference to him.

"I always wanted to emulate him because he was a model," said Morrow, who still lays brick and taught the craft at Fredd and Shelton State community colleges. "He was instrumental in change. He was a peaceable, very religious and down-to-earth person. He had a great conviction that everyone should be treated fairly."

Next time you're in Tuscaloosa, you really need to eat at Maggie's Diner, which is just down the block from Howard's and Linton's Barbershop.

Alfred L. Brophy
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Advice to Law Journals: Part 12

12    select articles based on the quality of ideas in them

Sometimes articles may not be a thorough exploration of a topic, but instead have some really creative (cr maybe just simply sound) ideas at their center.  Look favorably on those kinds of articles.  As you read an article, ask yourself: does this make sense?  If so, that's a good sign.

The image needs a little explanation.  I was searching for a picture that would convey "good idea"--thought about a light bulb or a paper clip, but I settled on a book of cool science projects you can build at home.

Alfred L. Brophy

Fennell on Homeownership 2.0

Lee Anne Fennell (U. Chicago) has posted Homeownership 2.0 on SSRN.  Here's the abstract:

Current legal arrangements make homeowners high-stakes gamblers. Homebuyers routinely take on crushing debt loads to put huge sums of money into risky, undiversified ventures that are utterly out of their personal control -- local housing markets. That these markets typically post positive returns over time is of little comfort to those caught on the downside of housing market volatility. Moreover, because rights to these expected gains are priced into the home, many would-be buyers are priced out of the market. The shortcomings of the homeowner's standard investment package have not escaped notice, and for decades scholars and innovators have tried to devise better ways to manage the upside and downside risks of owning a home. Derivatives markets for such risk have recently begun to emerge, due in large part to the collaborative efforts of Karl Case, Robert Shiller, and Allan Weiss. As the technical capacity to slice, dice, and trade homeownership risk advances, this paper steps back to examine how a reduced-risk version of homeownership fits together with property theory, human cognition, and the social dynamics of neighborhoods and metropolitan areas. To explore these questions, I present a new tenure form -- Homeownership 2.0 -- that seeks to optimally unbundle certain investment components from the core homeownership package.

Ben Barros

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O'Toole on Debunking Portland

Randal O'Toole (Cato Institute) has posted Debunking Portland: The City that Doesn't Work on SSRN.  Here's the abstract:

Though many people consider Portland, Oregon, a model of 21st-century urban planning, the region's integrated land-use and transportation plans have greatly reduced the area's livability. To halt urban sprawl and reduce people's dependence on the automobile, Portland's plans use an urban-growth boundary to greatly increase the area's population density, spend most of the region's transportation funds on various rail transit projects, and promote construction of scores of high-density, mixed-use developments.

When judged by the results rather than the intentions, the costs of Portland's planning far outweigh the benefits. Planners made housing unaffordable to force more people to live in multifamily housing or in homes on tiny lots. They allowed congestion to increase to near-gridlock levels to force more people to ride the region's expensive rail transit lines. They diverted billions of dollars of taxes from schools, fire, public health, and other essential services to subsidize the construction of transit and high-density housing projects.

Those high costs have not produced the utopia planners promised. Far from curbing sprawl, high housing prices led tens of thousands of families to move to Vancouver, Washington, and other cities outside the region's authority. Far from reducing driving, rail transit has actually reduced the share of travel using transit from what it was in 1980. And developers have found that so-called transit-oriented developments only work when they include plenty of parking.

Portland-area residents have expressed their opposition to these plans by voting against light rail and density and voting for a property-rights measure that allows landowners to claim either compensation or waivers for land-use rules passed since they purchased their property. Opposition turned to anger when a 2004 scandal revealed that an insider network known as the light-rail mafia had manipulated the planning process to direct rail construction contracts and urban-renewal subsidies to themselves.

These problems are all the predictable result of a process that gives a few people enormous power over an entire urban area. Portland should dismantle its planning programs, and other cities that want to maintain their livability would do well to study Portland as an example of how not to plan.

Ben Barros

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Anticompetitive Behavior in the Residential Real Estate Market

Todd Zywicki at the VC has an interesting post on various barriers to competition in the residential real estate market.  Todd's post highlights two very useful resources.  First, the antitrust division of the DOJ has set up a website on competition issues in residential real estate.  Second, Forbes has an excellent article on the title insurance market.  The article explains how lack of competition dramatically increases title insurance costs to consumers.

Ben Barros

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CNN: Trailer park becomes magnet for sex offenders

CNN.com ran an interesting story today about a trailer park in Florida that has allegedly become a haven for convicted sex offenders.  Under local law, sex offenders are apparently prohibited from living near schools, churches, playgrounds, and bus stops.  The trailer park, which is not located within the restricted areas, has attracted many sex offenders from different parts of the state, in part because the manager encourages them to move there for rehabilitation purposes.  However, this has angered some residents, who feel that they should have been informed about the management's plans.

The casebook I use in first-year Property (Dukeminier) includes a short summary of Mulligan v. Panther Valley Property Owners Association, a case involving a gated community that voted to restrict certain sex offenders from residing therein.  When I discuss this case in class, I ask the students whether restrictions like this will force sex offenders to congregate in areas that are unable to impose such barriers to entry, thus putting residents of those neighborhoods at greater risk.  This seems to be exactly what is happening in the Florida trailer park, but the management of the park seems to view it as a positive development.  As anti-sex-offender ordinances become more common, we may see more communities like this emerging.  Time will tell.

Josh Tate

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Advice to Law Journals: Part 11

11 look favorably on articles that thoroughly explore their topic.

I thought about leaving my entry at that.  But I think this deserves a little explanation.  Certainly we're all familiar with articles that open up an entirely new area for discussion and, thus, may not be thorough explorations of a topic.  But many successful pieces get to the bottom of their topic.  A piece that's thoroughly researched and the definitive word on a topic--even a narrow one--has a good chance of being successful.

Alfred Brophy
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Bleg: Classic Incidents of Property Ownership

We often speak of the four classic incidents of property ownership:  the rights to exclude, use, possess, and alienate.  I have limited research access at the moment, and was wondering about the origins and/or classic statements of this conception of property.  Can anyone point me in the right direction?

Thanks.

Ben Barros

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Eagle on Blight and Condemnation

Steven J. Eagle (George Mason) has posted Does Blight Really Justify Condemnation? on SSRN.  Here's the abstract:

This article asserts, contrary to existing law, that blight condemnation is inconsistent with the fundamental distinction between eminent domain, which arrogates private goods for public use, and the police power, which protects the public from harm. When conditions on a parcel constitute a threat to public health and safety, the landowner should be ordered to abate. If the owner is unable or unwilling to do so, the dangerous condition should be abated by government under its police power. The cost of abatement should be treated as a betterment assessment, which become a lien on the land and, if unpaid, should result in a foreclosure sale. Thereafter, the land could be redeveloped by the purchaser or its designee.

One practical result of abatement and foreclosure is that an owner has an incentive to abate, or to sell to a neighbor or redeveloper who would abate, perhaps in combination with abatement on other nearby parcels similarly situated. Should the parcel go through foreclosure, its redeveloper is selected through a transparent process of competitive bidding. This likely would reduce unjustified blight condemnation resulting from rent seeking manifested through political favoritism towards selected redevelopers. Also, re-channeling redevelopment through market actors would reduce grandiose and wasteful redevelopment schemes.

Ben Barros

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Right of Public Access to the Beach vs. Right to Keep Beach Home

Here's an interesting story from Texas.  Several owners of beach houses in Surfside Beach, Texas face the possibility of having their homes destroyed in order to ensure that the public has access to the beach.  The 1959 Texas Open Beaches Act (information found here) established a public easement on all beaches such that Texas beaches must be accessible to the public.

Apparently, hurricanes have led to the erosion of lands on which the houses are located and the state wants to replenish the beach.  In order to do that, the government says that the private beach houses have to be destroyed or moved.  The state told homeowners that they can apply for reimbursement of up to $50,000 for the cost of destroying or moving their homes.

Homeowners have argued that the government has exercised its eminent domain powers and must offer them with fair market value for their homes. The state countered that, "The government is not taking anyone's house. Mother Nature is." 

Click here for the rest of the story.

Rose Cuison Villazor

Schwarzenegger Signs "Dead Celebrities Bill"

According to NPR, the California governor has just signed into law the bill I referred to in my previous posting about Marilyn Monroe.  Thanks to my colleague Rose Villazor for forwarding me the story.  It will be interesting to see if this ends the dispute over the rights to Marilyn's images.

Josh Tate

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More on Landscape Art

We're on fall break in Tuscaloosa, so I have a little more time than usual.  Been thinking about the relationship between landscape art and property again recently.  Partly this is because it's October and I need to get my Halloween post pulled together, so I've been looking for some images of ghost stories where property is central.  That, of course, leads me to think about the Legend of Sleepy Hollow, where hierarchy is central.  Not so much about property, but who's there first (a key issue in property, of course).  And also to John Quidor's evocative painting of the "Legend of Sleepy Hollow," which is in the Smithsonian.

The National Gallery of Art also has Quidor's Rip Van Winkle, another charming landscape painting based on the short story of Quidor's friend Washington Irving.  Both Legend of Sleepy Hollow and Rip Van Winkle are attempts to come to terms with a wildly changing American culture.  I'm increasingly thinking that the way to talk about legal change in the antebellum United States is through the trope of progress.  Of course, "progress" had different meanings depending on whom you spoke with.  But it's a great organizing principle--and it suggests how law correlates with progression in the physical sciences and with economic and moral thought.  So we expect change and embrace it, even as we find it destabilizing.  Writers on law from William Sampson to Emerson to Story to Thomas Dew all recognize that legal rules are evolving and ought to evolve--that they are bound up with their social and historical context.  What is controversial is when there ought to be legal change and in what direction.  Thus, we get pitched conflicts in cases like Charles River Bridge.  Is there a property right there?  And if there is, how much should we protect it?

But I've also been working away on some literary addresses and again am struck by how often they reference property.  Try George Robertson's address to the Deinologian Society at Transylvania.  He speaks of the evils of slavery, then turns away to talk about the bounties of civilization.  Robertson employs images of landscape:

But these slight blemishes at which we have just glanced—what, are they in the sublime prospect which this day opens. ;o our view? They are but the spots on the sun; and though the microscopic vision of misanthropy may magnify them, they are lost in the great panorama which our country presents to the eye of an instructed and comprehensive patriotism. Could Boone and Harrod and Logan —when, in this once "land of blood," they first trod in the tracks of the Indian and the Buffaloe—have dreamed that what we now behold in this smiling West, would so soon have succeeded their adventurous footsteps, how would such a vision have cheered them amidst tho solitude and perils which they encountered in aiding to plant civilization in the wilderness! But oh! the pilgrim band of Plymouth Rock; the offcast germ of the once leafless, once sapless, tree of light—what holy joy would theirs have been, had their last lingering glimpse of the green fields of their childhood been gilded with a hope, that the then house-less solitude of their refuge would, so soon, or ever be transformed into a vast cultivated garden, the abode of that liberty, religion and law, for which they had abandoned forever the comforts and endearments of the homes of their birth?

The image above right is George Caleb Bingham's Daniel Boone Escorting Settlers Through the Cumberland Gap, which is from Washington University's Gallery of Art (though I first saw it in person and was captivated by it, I think, in 1991 at the National Gallery).

Images of landscape, which help connect people to land and to the ideas of liberty and property.  Great stuff.  And I hope the makings of some fun, further speculation on the relationship between property law and landscape art. 

Alfred L. Brophy
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