PropertyProf Blog

Kushner on Urban Neighborhood Regeneration

James Alan Kushner (Southwestern Law School) has posted Urban Neighborhood Regeneration and the Phases of Community Evolution After World War II in America on SSRN. Here's the abstract:

This article describes four distinct phases that urban neighborhoods have passed through in the last sixty years. The first phase, from World War II until 1968, followed a pattern of decentralization, investment in suburban infrastructure, and strict segregation. The second phase, 1968 to 1975 was marked by hyper-sprawl, the loss of the central city economic base and population, and hyper-segregation. The third phase, 1975-1990, was characterized by class segregation, increased cost to access the suburbs and increased class and racial separation. The fourth phase, 1990 to 2008, witnessed hyper-segregation, voluntary class, racial, and ethnic separation, and persistent racial discrimination. The article suggests that the United States may be entering a fifth post-war phase of Smart Growth, public transport, infill strategies, and New Urbanist and surburbanist designs producing greater diversity.

Ben Barros

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Rose on Carbon Trading

Carol Rose (Arizona) has posted From H20 to C02: Lessons of Water Rights for Carbon Trading on SSRN.  Here's the abstract:

Interest in climate change has generated many proposals for cap-and-trade programs to control greenhouse gases. Longstanding American water rights regimes may have some lessons for these new proposals. Nineteenth century eastern water law focused on the cap - keeping water instream - and particularly illustrates the importance of mobilized constituencies in any program that entails capping resource use. Western water law focused on individualized and supposedly tradable rights, and its experience shows especially the significance of rights-definition both for the content and for the tradability of rights. As with water rights, both content and tradability in the new rights regimes are likely to match only imperfectly the goals that we want a cap-and-trade program to serve. For that reason, the historical experience of both water regimes also suggests the important role that surrounding and supporting institutions will play to facilitate trade under imperfect circumstances, and to reassure participants of the standards, accountability, and acceptability of the cap-and-trade regime.

Ben Barros

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New Jersey v. Delaware

I'm not sure how I missed it up until now, but a fascinating property case was argued this week in the Supreme Court.  The case involves a dispute related to the border between New Jersey and Delaware.  New Jersey wants to allow a large natural gas storage plant on its side of the Delaware river.  To make the plant workable, it needs to put in a 2,000 foot pier, which presents a problem. From the NY Times story on the argument:

Under a 1934 Supreme Court decision that settled a long-disputed boundary, Delaware owns the entire riverbed, from its own shoreline up to the low-water mark on the New Jersey side. But that fact, which neither side in the current case disputes, is not the end of the case, but only the beginning, as the argument on Tuesday made clear.

A major complicating factor is that in 1905, before the boundary was settled, the two states entered into a compact that is still in effect. It provides that “each state may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature” under its own laws.

The word riparian refers to shoreline, and under traditional land-use law, ownership of shoreline property conveys the right to build a pier or wharf extending far enough into the water to make the property accessible.

To New Jersey, permitting the BP project is simply an exercise of “traditional riparian authority” recognized under the compact, its lawyer, H. Bartow Farr III, told the justices.

But “the question that’s really at the rub of this case,” Delaware’s lawyer, David C. Frederick, said when his turn came, “is what you do on the wharf.”

The “crucial distinction here,” he said, was that Delaware was entitled to exercise its police power to block an activity that it considers dangerous or a “nuisance.”

The justices’ many questions during the animated session indicated that they found neither argument completely persuasive.

“Obviously, the right to ‘wharf out’ does not include the right to use the wharf for whatever you like,” Justice Antonin Scalia said to Mr. Farr.

And Justice Samuel A. Alito Jr. objected to Mr. Frederick that if Delaware was entitled to a veto power over the uses of New Jersey-based piers and wharves, then the effort in the 1905 compact to preserve New Jersey’s riparian rights was “worthless” and “meaningless.” Could Delaware declare that docking a sailboat was a “nuisance”? he asked.

As an added bonus, Justice Breyer has recused himself from this original jurisdiction case, raising the possibility of a 4-4 tie.  What happens with a tie vote in an original jurisdiction case?  Who knows.

Ben Barros

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Advice to Law Journals, Part 15

Been absurdly busy of late--was at the University of Miami's lovely campus a few weeks ago for a panel on reparations and then in Chapel Hill for an awesome conference on Thomas Ruffin.  Meanwhile, I had to finish up my Thomas Dew paper.  On top of which, the hiring season is in full swing at Alabama and classes are coming to a close, as well.  November's almost over and there hasn't been a single piece of advice to law journals this whole month.  So this suggestion will be short.

15    give a short time frame for expedites

I'm not sure there's a lot more to add to this; my experience (as faculty advisor) is that when we give long time frames, we rarely land pieces.  Now, we might not have gotten them in the first place, but long time frames also make it harder to plan, because you have offers out that may be accepted.  Authors, obviously, would prefer longer time frames and you may lose some authors if you give an offer with a short period for accepting.

Alfred L. Brophy
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Schragger on Cities, Economic Development, and the Free Trade Constitution

Richard C. Schragger (UVA) has posted Cities, Economic Development, and the Free Trade Constitution on SSRN.  Here's the abstract:

The role of cities and local government generally has gone unexamined by legal scholars of the constitutional common market. Yet in a highly urbanized country in which cities and large metropolitan areas dominate the national economy, much of the cross-border movement of persons, goods, and capital inside the United States is more accurately characterized as inter-municipal rather than inter-state. This Article examines the constitutional rules that govern this cross-border movement from the perspective of the city. The Article argues that judges and commentators have misapprehended the jurisprudence of the American common market because they have been looking at its operation on the wrong scale. Examining how the doctrine operates at the municipal level exposes the gaps and contradictions in the jurisprudence, reveals connections between legal doctrines that heretofore had not been considered part of the free trade regime, and highlights the Supreme Court's implicit (and under-theorized) urban economic policy. The reframing of the economic and jurisprudential place of cities in the free trade constitution sheds light on a number of important recent cases, in particular Kelo v. New London, in which the Court upheld a city's use of eminent domain for economic development purposes under the Fifth Amendment's Takings Clause. The Article's city-centric approach also intervenes in a number of judicial and scholarly debates, including the appropriate reach and application of the ?dormant? commerce clause, the appropriate judicial oversight of local land use regulations under the Takings Clause, and the role of courts in policing and shaping local economic development efforts more generally.

Ben Barros

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Klass on The Frontier of Eminent Domain

Alexandra B. Klass (Minnesota) has posted The Frontier of Eminent Domain on SSRN.  Here's the abstract:

The Supreme Court's 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state statutes to take private property to develop coal, oil, or other natural resources. In fact, the Supreme Court's deference to such “natural resource development takings” in the early part of the 20th century was the base upon which the Court built its decision in Kelo. This Article first explores the relationship between Kelo-type economic development takings and natural resource development takings and argues that the national reaction to Kelo has focused too narrowly on government takings and ignored the impact of private takings. It then uses recent property reforms in the Interior West to explore the broader implications of the role of eminent domain in reallocating property in society and proposes some additional reforms for natural resource development takings.

Ben Barros

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The Sale of Virginia's Natural Bridge

Well, I'm working on the copyedits of an article on antebellum literary addresses and that's led me to be reading some of John Reuben Thompson's poetry.  (Antebellum historians, though perhaps no one else, will recall that Thompson was editor of the Southern Literary Messenger.)  Dig this poem:

A SALE! A sale! Earth's proudest things are daily bought and sold,
And art and nature coincide in bowing down to gold.
Alas! at such a sale as this sad thoughts within us rise
Until the Bridge becomes to us a very Bridge of Sighs.

Ho! citizens of Lexington, ho! keepers of the springs,
To whom the Bridge a revenue in transient travel brings,
Rebuke the cruel auctioneer with your severest frown
Before in his destructiveness he seeks to knock it down!

At least, ere he proceeds to such extremity as that,
Be good enough to bid him first remember what he's at.
Let even-handed justice, too, cry loudly in his ears
That he should give this ancient Bridge a trial by its piers.

Now, by the bones of Captain Smith, how shall he dare to cry
(For crying's his "vocation, Hal," though with unmoistened eye)?
That this great span which hath endured for centuries unknown,
At bidding of a purchaser is going, going, gone!

Oh, for a Wordsworth's flowing lines to sonnetize the Bridge
And paint in Tintern Abbey tints the Valley and the Ridge,
But what's words worth in such a task as lies before us here,
As little as to give the face of placid Windermere.

The only ode, O noble Bridge, that should be sung to thee
Is heard among the mountain pines and heard upon the lea,
A Miserere lofty as that anthem of the surge
When on the sunset strand it chants the day's departing dirge.

The earth is full of stately works of monumental pride—•
The famed Rialto thrown above the dark Venetian tide—•
And pyramids and obelisks of ages passed away—
And friezes of Pentelicus majestic in decay:—

But arches, domes, colossal piles that human skill has wrought,
All, all, when in comparison with thy proportions brought,
Are fleeting as the palaces fantastically vain
That Russian monarchs rear in ice on Neva's frozen plain!

A Saxon priest once stood beneath the Coliseum's wall
And augured that the globe itself should topple with its fall!
Oh, when this mighty arch of stone shall from its base be hurled
An elemental war shall work the rum of the world!

Now how's that for a property poem?!

The bridge, which was once owned by Thomas Jefferson, is up for sale again.  Frederick Church's landscape of the Natural Bridge is from our friends at the University of Virginia.  I'd say the poem's downright Emersonian, except that Thompson was a proslavery zealot.  But that's a story for another day.  Those who are interested, however, can find some mighty important and interesting speculation in Peter Carmichael's The Last Generation (discussed by me in Reviews in American History here).

Alfred L. Brophy
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Banner: Possessing the Pacific

Stuart Banner's Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska has just appeared in my mailbox.  It looks very exciting.  Here is the description from Harvard University Press:

During the nineteenth century, British and American settlers acquired a vast amount of land from indigenous people throughout the Pacific, but in no two places did they acquire it the same way. Stuart Banner tells the story of colonial settlement in Australia, New Zealand, Fiji, Tonga, Hawaii, California, Oregon, Washington, British Columbia, and Alaska. Today, indigenous people own much more land in some of these places than in others. And certain indigenous peoples benefit from treaty rights, while others do not. These variations are traceable to choices made more than a century ago--choices about whether indigenous people were the owners of their land and how that land was to be transferred to whites.

Banner argues that these differences were not due to any deliberate land policy created in London or Washington. Rather, the decisions were made locally by settlers and colonial officials and were based on factors peculiar to each colony, such as whether the local indigenous people were agriculturalists and what level of political organization they had attained. These differences loom very large now, perhaps even larger than they did in the nineteenth century, because they continue to influence the course of litigation and political struggle between indigenous people and whites over claims to land and other resources.

Possessing the Pacific is an original and broadly conceived study of how colonial struggles over land still shape the relations between whites and indigenous people throughout much of the world.

I'm looking forward to reading this.

Alfred L. Brophy
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AALS Property Section Newsletter

This year's edition of the AALS Property Section Newsletter is now available.  Thanks to Carol Brown of UNC for putting it together.

Ben Barros

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Davidson on Takings and Equality

Nestor Davidson (U. Colorado) has posted The Problem of Equality in Takings on SSRN.  Here's the abstract:

The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest judicial protection is provided to those most able to navigate the political system. And from a doctrinal perspective, an overly robust equality inquiry housed in the Takings Clause is inherently indeterminate, warping not only the fabric of takings but also of equal protection jurisprudence. Accordingly, this Article argues that concerns about the uneven distribution of regulatory burdens should sound not under the Takings Clause but rather under the Equal Protection Clause, with its deferential standards for the review of ordinary economic and social regulation. Excising the equality dimension of regulatory takings would properly leave the Takings Clause as a guard against those rare regulatory actions that are functionally equivalent to the direct exercise of eminent domain. The result would be a simpler, clearer, and ultimately more egalitarian law of takings.

I read an earlier draft of this paper, and it is outstanding.  A must-read for anyone interested in takings generally, and the more specific issue of where the Supreme Court's takings jurisprudence might go post-Lingle.

Ben Barros

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Van Houweling on The New Servitudes

Molly Shaffer van Houweling (UC Berkeley - Boalt) has posted The New Servitudes on SSRN. Here's the abstract:

In the age of electronic commerce, consumers routinely acquire intangible products without engaging in any direct human interaction. These products—computer programs, digital music, etc.—often arrive bearing terms that purport to limit the sticks in the consumers' bundles of rights in ways that depart from the background limitations imposed by intellectual property law. For example, a consumer who has downloaded a computer program from the Internet might be presented with a screen of text imposing myriad restrictions on how the program may be used; installation commences only when the consumer clicks “I agree.” Courts in the United States have increasingly enforced such restrictions—labeling them “click-wrap licenses” and applying to them the same contractual concepts that govern face-to-face exchanges of promises. Similar licensing approaches—albeit with quite different substantive terms—have been extended into the realms of “free software” and “free culture.”

The law of tangible property offers a different lens through which to view these contemporary techniques for distributing and controlling intangible products. When someone buys land that is purportedly subject to use restrictions imposed by a prior owner, those restrictions are sometimes enforced as “servitudes”—non-possessory property interests that attach to land and impose their restrictions and obligations on generation after generation of landowners. Like click-wrap licenses and similar techniques of the digital age, use restrictions imposed by servitudes bind remote purchasers with whom the beneficiaries of the restrictions may have no direct relationship. They do not arise from any human communication, but instead “run with” the burdened assets and automatically bind current possessors.

Although servitudes are a familiar feature of contemporary real property law, they have long encountered judicial skepticism that has generated a host of doctrinal complications. This skepticism has been even more pronounced in the context of servitudes applied to items of tangible personal property. But it finds little expression in the current contractual approach to interpreting licenses attached to intangible products.

In this article I develop a comprehensive account of the evolving jurisprudence of servitudes as applied to both land and personal property, identifying the sources of traditional servitude skepticism in order better to evaluate the new generation of running restrictions on intangible informational goods. I apply the lessons I draw from the old servitudes to paradigmatic examples of contemporary licensing practices—including Microsoft end-user license agreements, the Free Software Foundation's General Public License, and Creative Commons licenses. The lessons I draw from the old servitudes bring the problems—and also the promise—of these new servitudes into sharp focus, providing a new framework within which to analyze emerging electronic commerce practices while contributing doctrinally- and historically-grounded insights into the ongoing debate about the proper relationship between intellectual property and the public domain.

Ben Barros

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Coordinating Law and Society Panels

The deadline for paper and panel proposals for next year's Law and Society Conference (May 29-June 1 in Montreal) is fast approaching.  Submissions are due December 12, and should follow these guidelines.  For a host of reasons, it is better to submit a panel proposal rather than a solo paper.

For those who are interested in participating at the conference, and have not yet formed a panel, I would be happy to play matchmaker and help form panels.  If you are interested, please e-mail me as soon as possible with a short description of your topic.  I'll collect the topics and try to put people together.

Ben Barros

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Post-Lingle Substantive Due Process Case

Over at Law of the Land, Patty Salkin has a post on a recent Ninth Circuit decision in Crown Point Development, Inc. v. City of Sun Valley.  The Circuit had previously barred land-use substantive due process claims, under the reasoning that if a land use regulation did not substantially advance a legitimate interest, it was a taking.  So under the prior Ninth Circuit law, a substantive due process claim would be replaced by a takings claim.  This reasoning was always suspect, but is clearly wrong after Lingle.  So in Crown Point, the Ninth Circuit has correctly recognized that a landowner can maintain a substantive due process challenge to a land-use regulation.

Ben Barros

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Adverse Possession in the News

We’ve been having an interesting dust-up here in Boulder about adverse possession – a local couple prevailed on what seems to be a pretty ordinary adverse possession claim and a local columnist blasted the decision as an example of how out of control the Boulder “progressive” community is – “where common sense is occasionally as rare as a conservative's view of private property rights,” sparking a backlash that made it all the way to Fox News.  And the New York Times a few days ago highlighted Gov. Spitzer’s veto of a bill in New York that would have barred adverse possession “if the person making the claim had ‘actual knowledge’ that the property was owned by someone else,” according to the Times.  Who knew AP would be such a hot topic again?

UPDATE:  Eduardo Penalver has more thoughts on the Boulder case.

Nestor Davidson

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Takings Dispute Between Ranchers and the Military

A few days ago, the Washington Post had an interesting article on an eminent domain dispute between ranchers and the military.  The story has led to some discussion between Ilya Somin and Kaimi Wenger about some takings issues, including compensation for subjective value.  Ilya's first post is here; Kaimi's comment is here; and Ilya's response is here.

Ben Barros

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Vietnam Veterans' Memorial: Memory, Honor, and Interpretation

Today is monument day at propertyprof.  A reader sent this story from USA Today along about a proposed underground “center” beside the memorial wall that would inform visitors about the war.

Propertyprof readers may be interested in this excerpt, touching on a function of monuments and their difference with museums:

Judy Scott Feldman of the National Coalition to Save Our Mall says the center would set a precedent that would encourage other groups to push for interpretive adjuncts to their monuments. "We are mistaking the power of our memorials with the educational value of our museums."

The public domain image of the Vietnam Veterans Memorial is from our friends at Wikipedia.

Alfred L. Brophy
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Naming rights: University of California--Irvine

Been reading (thanks to Brian Leiter) about the University of California-Irvine's Donald Bren School of Law.  Among the interesting aspects of Bren's agreement with the school is this:

Signs on law school buildings must read "Donald Bren School of Law" and be at least twice the size of the building name. Bren's must be the largest and most prominently displayed name on the building, according to the agreement.

I take it that is enforced as a contract, rather than as an affirmative covenant.

Al Brophy
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More Monuments: Repairing or Replacing the Tomb of the Unknown Soldier

In honor of Veterans Day, the New York Times has a video about the dispute over cracks in the marble at the tomb of the Unknown Soldier.  Should the marble, whose cracks have been steadily growing larger, be repaired or replaced?  This is yet another example of the controversies over monuments and their meanings.

Image: The panoramic of Missouri Gold Star mothers meeting with General Pershing at the Tomb of the Unknown Solider in 1930 is from our friends at the Library of Congress.

Alfred L. Brophy
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Claims of Pretextual Takings Post-Kelo

The D.C. Court of appeals recently held that a property owner can challenge a taking based on a blight designation as pretextual.  I've had some e-mail discussion with some folks about the case (Franco v. National Capital Revitalization Corp, 930 A.2d 160 (D.C. 2007)) and whether this type of challenge is the kind of claim of pretext that the Kelo majority expressly contemplated or whether it is an end-run around Kelo.  I'm waffling, and need to think about it more, but wanted to note the decision.  Another interesting issue, which I also need to think about more, is whether this creates a split with the Second Circuit's recent Didden decision.

UPDATE:  Ilya Somin at the VC has a very thoughtful post on this case.  Ilya is more up on this issue than anyone I know.  Check it out.

Ben Barros

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Oregon Voters Limit Measure 37

Over at PrawfsBlawg, Eduardo Penalver has the details.  A taste:

Under the new law, landowners who can establish that regulation caused their property values to decline will be entitled to some relief, but not the virtually complete liberation from land use regulation that some owners enjoyed under Measure 37.   Owners will be entitled to build one to 10 houses on burdened rural parcels under various scenarios, but typically not more than three.  In effect, the measure tries to strike something of a middle ground, permitting some rural development in order to address horror stories like Dorothy English's inability to build a home for her grandson, but prohibiting new hundred-home subdivisions and commercial and industrial development in rural areas outside of Oregon's urban growth boundaries.   

Ben Barros

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