Tuesday, December 4, 2007

Colorado Redevelopment Case

The Colorado Supreme Court recently decided Wheat Ridge Urban Renewal Authority v. Cornerstone Group, an eminent domain case involving the ability of the government to change its mind and back out of a redevelopment condemnation.  Ilya Somin and Tim Sandefur both have comments on the case.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 4, 2007 in Recent Cases, Takings | Permalink | Comments (1) | TrackBack (0)

Monday, December 3, 2007

Glazer on Outlaws and the Right to Exclude

Elizabeth Glazer (Hofstra) has posted Rule of (Out)Law: Property's Contingent Right to Exclude on SSRN.  Here's the abstract:Meat_loaf

Anything for love;
I would do anything for love;
I would do anything for love;
But I wont do that;
I wont do that.

When Meat Loaf mystified scores of listeners in the early nineties by his logically inconsistent song lyrics, he almost certainly did not look to property law when answering his fans most popular question. This Essay does not argue that he should have. However, Meat Loaf's (in)famous song lyrics may be able to shed light on what has become a popular question among property fans, namely what is the nature of the right to exclude.
This Essay argues that an owner's invocation of the right to exclude depends upon the owner's invocation of other rights in the property bundle. In so arguing, the Essay analyzes current efforts to understand the right to exclude through the lens of the property outlaw, whom Eduardo Moisés Peñalver & Sonia K. Katyal profile in their recent article, Property Outlaws. The Essay highlights the effects of Professors Peñalver's and Katyal's argument on the nature of property's right to exclude. After summarizing recent efforts to understand the right to exclude, describing Peñalver's and Katyal's argument that outlaw behavior has a special and socially productive function in property law, and explaining the connection between their article and the right to exclude, the Essay concludes by proffering evidence that Meat Loaf may have audited a first year property course, or at least that he incorporated insights about property law into his music.

Gotta respect the Loaf.  Photo from Wikipedia.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 3, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Advice to Law Journals: Part 17

Franklin_printing_press 17    edit outside authors sparingly

We're now turning to advice to journals once they have accepted a piece.  I thought you might like a picture of Benjamin Franklin's printing press from our friends at project Gutenberg to illustrate this point: it's a mistake to edit heavily the non-student authors.

Alfred Brophy

Comments are held for approval, so they will not appear immediately.

December 3, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Interesting Sign Dispute, With Eminent Domain Twist

From the Saint Louis Post-Dispatch:

Supporters say it's a political statement, maybe even art. The city says it's too big, a nuisance that needs to be removed.

Either way, a two-story mural decrying eminent domain is testing the boundaries of the First Amendment, sparking a federal lawsuit that challenges the city's intricate zoning code.

At issue is a tricky constitutional dilemma — fighting clutter versus protecting free speech — that experts say could force St. Louis to rewrite its laws regarding outdoor signs. . . .

Painted on the side of a brick apartment building near Soulard, the mural faces drivers heading downtown on Gravois Avenue. It advocates an end to "eminent domain abuse," the mantra of veteran activist Jim Roos.

Roos is among the state's leaders in the fight against eminent domain, an issue that has gained visibility since a 2005 Supreme Court ruling that cities can use eminent domain to promote economic development. He has testified in Jefferson City and clashed with city officials who support eminent domain. . . .

In April, the building division cited Roos for having an illegal sign. At about 360 square feet, the eminent domain mural is more than 10 times larger than the size allowed for signs in that section of the city.

Three surrounding neighborhood associations have submitted letters opposing the sign, as did the local alderman, Phyllis Young.

"He should rent a billboard," Young said.

Roos fought the citation, claiming the city was targeting him not because of the size of his sign, but because of its message.

"I think if it said, 'Go Cardinals,' we wouldn't have any problems," Roos said.

The city routinely approves exemptions for large signs. On the same day a city panel rejected Roos' claim, it granted an appeal by Laclede Gas to display a sign of over 1,000 square feet on the utility's downtown headquarters.

Even so, content is not the issue, city officials say — it's keeping the city tidy.

"Can you imagine what our city would look like if everyone were allowed to paint a 363-square-foot, two-story sign on their buildings?" asked City Attorney Patti Hageman.

Roos has taken his case to federal court, where he has drawn the aid of the Institute for Justice, a libertarian advocacy group in Arlington, Va.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 3, 2007 in Land Use, Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Shavell on Government Land Acquisition

Steven Shavell (Harvard Law School) has posted Eminent Domain versus Government Purchase of Land Given Imperfect Information about Owners' Valuations on SSRN.  Here's the abstract:

Governments employ two basic policies for acquiring land: taking it through exercise of their power of eminent domain; and purchasing it. The social desirability of these two policies is compared in a model in which the government's information about landowners' valuations is imperfect. Under this assumption, the policy of purchase possesses the market test advantage that the government obtains land only if an owner's valuation is low enough that he is willing to sell it. However, the policy suffers from a drawback when the land that the government needs is owned by many parties. In that case, the government's acquisition will fail if any of the owners refuses to sell. Hence, the policy of eminent domain becomes appealing if the number of owners of the land is large. This conclusion holds regardless of whether the land that the government seeks is a parcel at a fixed location or instead may be located anywhere in a region.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

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

Saturday, December 1, 2007

Advice to Law Journals, Part 16

Haverfordcollegelibrary_1865 16    use an outside board of reviewers

One of the ways of improving quality control is to ask experts in the field.  I understand that both the Harvard Law Review and the Yale Law Journal are already asking for experts outside of their schools for opinions.  Lo those many years ago when I was an editor we asked our faculty for advice on articles we were thinking about.  And at the Alabama Law Review we never accept an article without having at least one faculty member read it--though I am often the person doing the reading and since my expertise is limited to a few areas, that sometimes means that I'm reviewing articles in areas in which I have no particular knowledge of the literature or even the key questions.

I hope that in addition to using the experts to judge the quality of a piece, the journals will also communicate the evaluations to the authors.  That gives the authors one of the key benefits of peer review: feedback.

I'm not sure how that practice is working out and I'd be most interested in hearing.  The journals rely on the generosity of faculty at other schools.  I suppose that journals at Harvard and Yale can rely pretty heavily on other faculty, because those faculty may want to curry favor with the editors.  Whether the Alabama Law Review--to take one journal near my heart--could get away with asking for quick turnarounds from faculty elsewhere is an important question.  And how often you could go to the well is another one.  But at least for our nation's most elite journals, I think that asking for outsiders' opinions is an improvement.

Endnote:  While looking for a public domain image of a board of experts, scientists, whatever, to illustrate this post, I came across the lovely image of nineteenth century Haverford College faculty in their library--and that led to this cool link, to Haverford College's 1836 library catalog.

Alfred L. Brophy
Comments are held for approval, so they will not appear immediately.

December 1, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (3)