Friday, February 29, 2008

Right to Sunlight in California

From CNN:

In an environmental dispute seemingly scripted for eco-friendly California, a man asked prosecutors to file charges against his neighbors because their towering redwoods blocked sunlight to his backyard solar panels.

But the couple next door insisted they should not have to chop down the trees to accommodate Mark Vargas' energy demands because they planted the redwoods before he installed the solar panels in 2001. . . .

After more than six years of legal wrangling, a judge recently ordered Richard Treanor and his wife, Carolyn Bissett, to cut down two of their eight redwoods, citing an obscure state law that protects a homeowner's right to sunlight.

The couple does not plan to appeal the ruling because they can no longer afford the legal expenses, but they plan to lobby state lawmakers to change or scrap the law.

The Solar Shade Control Act means that homeowners can "suddenly become a criminal the day a tree grows big enough to shade a solar panel," Treanor said.

The case marks the first time a homeowner has been convicted of violating the law, which was enacted three decades ago, when few homeowners had solar systems.

The law requires homeowners to keep their trees or shrubs from shading more than 10 percent of a neighbor's solar panels between 10 a.m. and 2 p.m., when the sun is strongest. Existing trees that cast shadows when the panels are installed are exempt, but new growth is subject to the law.

Ben Barros

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

February 29, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)

Levitt Bankruptcy

800pxwelcome_to_levittown_sign NPR has an interesting story on the bankruptcy of Levitt and Sons, the firm that developed Levittown.  The story also discussed the impact of the bankruptcy on buyers in a Levitt project in Florida:

Among those customers is Bill Quattrocchi, who lives in Tradition, a big development for active seniors — those 55 and older — in Port St. Lucie, along Florida's Atlantic Coast. As he drives a golf cart through the neighborhood, he notes a road that "was supposed to lead to a clubhouse."

"It leads to nowhere," Quattrocchi says as he drives along. "They never completed this road to the other section."

While other builders are still selling houses in Tradition, Quattrocchi and his neighbor, Bob Wilson, have the misfortune of living in a section developed by Levitt and Sons. It's a neighborhood where all construction stopped after Levitt declared bankruptcy; out of 1,200 planned homes, only 90 are currently occupied.

Quattrocchi wheels his golf cart through an area where residents live across the street from half-finished houses. He notes that "available" signs have been removed from the fronts of the homes.

Wilson points to a row of empty houses. He says in some cases the homeowners were foreclosed; in others, the buyers "just walked away." . . .

[T]here's another group of Levitt customers who also are bitter at how they've been treated: those who put $40,000 and $50,000 deposits down on a Levitt home. Jerry Greenfield is one of them: He put down $45,000 on a Levitt home at Tradition and included another $25,000 for upgrades. When he heard about the bankruptcy, he figured his deposit was protected because he had put it in an escrow account.

"I felt that, jeez, I don't have a problem here," Greenfield says. He expected to get a refund for his deposit. But he soon found out it's not quite that easy.

That's because Florida law allows a builder to access money in an escrow account if it provides a bond. Greenfield had to hire a lawyer and is now working to recover his deposit from the bonding company. And that's just the deposit — he doubts he'll ever see the $25,000 he paid Levitt for upgrades.

Greenfield says he's learned that, among the dozens of people who had deposits with Levitt, he's one of the fortunate ones. Most didn't put their deposits in escrow.

Ben Barros

[Levittown Photo from Wikicommons]

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

February 29, 2008 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Thursday, February 28, 2008

Late 1800's San Francisco Spite Fence

I have a thing for spite fence cases.  My Mom sent along a link to this 1902 story (with photos) about a great spite fence (40 feet tall!!!) in San Francisco's Nob Hill neighborhood.  As an added bonus for propertyprofs, the story involves a land assembly issue:  the spite fence was put up around a holdout.  Some excerpts:

The Yung lot is the only portion of the block bounded by California, Taylor, Sacramento and Jones streets which Charles Crocker was unable to secure, when he erected his mansion there. Nicholas Yung, who was in the undertaking business and who was comfortably fixed, although not wealthy, preferred to stay in his Nob hill home. He and his family enjoyed the view and the other advantages of the situation as much as did Crocker, and he saw no reason why he should trade his residence for some other property which Crocker offered him, and emigrate. Crocker was willing to give him $6000, but we would not sell, even when the blasting on the Crocker site sent rocks flying around his house and the grading left his place up in the air. Finally Crocker threatened to fence in the Yung home, and at last Yung said he would sell for $12,000. Crocker refused to pay that sum, and carried out his threat to put up the fence. Yung did not consider the price he asked exorbitant, it being said that Flood paid $25,000 for a similar lot when he wished to get a complete block on Nob Hill.  . . .

The fence cost about $3000, but Crocker was a millionaire and did not mind the expense, and he had the satisfaction of driving the Yung family away from their home. Their house was boxed up and the sunlight shut out, and Yung was compelled to move the dwelling to another lot which he owned on Broderick street. The tall fence destroyed the value of the Sacramento street lot, which for about a quarter of a century has remained unused and unsightly. . . .

Ben Barros

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

February 28, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2008

Barros on Property and Freedom

I've posted Property and Freedom on SSRN.  Here's the abstract:

Private property is often defended on the basis that it promotes individual freedom. Discussion of this subject has typically taken place in the context of contentious debates over the legitimacy of government interference with private property, especially government regulation of land use and redistributive taxation. Pro-property, anti-interference advocates tend to suggest that there is a strong relationship between property and freedom. Those on the other side of the debate tend to be more skeptical. The political philosopher G.A. Cohen, for example, has asserted that "the familiar idea that private property and freedom are conceptually connected is an ideological illusion."

In this Essay, I argue against both sides of this intractable debate. Property and freedom are inextricably linked, but a strong relationship between property and freedom does not immunize property from government interference. To support these positions, I shift the discussion of property and freedom away from debates about the inviolability of property, and focus instead on the institutional relationship between property and freedom. Accordingly, I focus on two questions that have often been neglected in the heat of the debate over government interference with property: to what degree does the institution of private property protect individual freedom, and to what degree is individual freedom possible without the institution of private property?

Property as an institution promotes individual freedom in three ways: by creating a zone of individual autonomy and privacy; by distributing power; and by providing access to the resources that people need to be free. The discussion of these institutional connections between property and freedom draws out three important substantive points. First, individual freedom depends, in an institutional sense, on private property. Second, because the relationship between property and freedom is complex, different types of property (e.g., land versus money) and different aspects of property ownership (e.g., the ability to exclude others versus the ability to transfer to another owner) promote freedom in different ways. Third, and most importantly, the relationship between property and freedom in this context may be used to support, rather than oppose, arguments for the redistribution of property. Indeed, a strong connection between property and freedom can be maintained without any reference whatsoever to libertarian or other theories that hold that property rights should be immune from state interference.

Using these relationships between property and freedom, I then critique two of John Rawls's positions on property. Rawls asserted that the basic liberties protected by his First Principle of Justice include the right to hold personal property, but not productive property; and that either a property-owning democracy or a liberal socialist regime could comport with his two principles of justice. In my critique of Rawls, I first explain why the concept of freedom embodied by the First Principle of Justice provides a better defense of private property than the inequality allowed by the so-called difference principle in the Second Principle of Justice. I then use the connections between property and freedom discussed earlier in the Essay, and Rawls's own positions on freedom, to argue that Rawls's positions on property are wrong, that the First Principle must include the right to hold productive property, and that therefore only a property-owning democracy would satisfy the requirements of the two principles of justice.

I'll be blogging about some of the subjects in the essay, especially the parts about Rawlsian property, over the next couple of weeks.  Comments are very welcome.

Ben Barros

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

February 26, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2008

Turnipseed on Deathbed Marriages

Terry L. Turnipseed (Syracuse) has posted How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America on SSRN.  Here's the abstract:

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from marriage?

In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible, does it not? The expectant heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so.

How did this rule come about? What, if anything, should we do to change it?

This article explores these and other related questions, including a proposed theoretical framework for a model act giving heirs and beneficiaries standing to sue in order to negate the property consequences that flow from marriage, depending on the level of mental capacity at the time of the marriage.

Individuals on their deathbeds have just as much right to marry as anyone, and if competent and under no duress, the parties to the marriage certainly should have protection under the law. Protection should be appropriately shaped to avoid harassment of widows and widowers.

However, I simply cannot see a valid argument for denying a decedent-spouse's heirs (those who would take the decedent's property if he or she died unmarried and intestate) and beneficiaries (those who would take under the decedent's valid will, if any, absent a spousal election) the right to challenge the property consequences of a suspect marriage, especially when that challenge is based on traditional grounds that might naturally flow from a deathbed marriage.

Ironically, a decedent on their deathbed may not have the legal capacity to enter into a contract but can get married. It is only reasonable that these poor people and their heirs and beneficiaries should have state protection against a surviving spouse taking some or all of the decedent's property. Protection of heirs and beneficiaries is necessary where a surviving spouse may have few legitimate motives for entering into a deathbed marriage, particularly in light of the surviving spouse's ability to take some or all of the decedent's property.

The current incentives are off kilter. A greedy potential spouse has every incentive to find a minister or officer of the law willing to marry them off to a wealthy sick person and no legal incentives not to try it. No matter how ugly the situation, a marriage becomes set in stone with no person other than the surviving spouse allowed standing to seek redress in a court of law upon the death of one of the spouses. Allowing, in an appropriate way, heirs and beneficiaries to challenge the property consequences of a suspect marriage puts in place the proper disincentives before attempting to take advantage of one of feeble mind and spirit.

If these property consequences are allowed to stand, victims will continue to abound in deathbed marriage situations where consent is lacking: the decedent, her family, and society generally. Just imagine how you would feel losing an expectancy in such circumstances.

Ben Barros

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

February 25, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, February 24, 2008

Nelson on Fairness and Priority in Foreclosure Purchases

Grant Nelson (Pepperdine) has posted The Foreclosure Purchase by the Equity of Redemption Holder or Other Junior Interests: When Should Principles of Fairness and Morality Trump Normal Priority Rules? on SSRN.  Here's the abstract:

This article explores an issue that is uniquely suited to Dale Whitman's powerful analytical mind and his intuitive moral and ethical sensibilities - when should the core maxim of mortgage law, namely that a properly conducted foreclosure of a senior lien terminates junior interests - yield to higher principles of fairness and morality? When the holder of the equity of redemption directly or indirectly purchases at either a mortgage sale or tax sale, survival or revival of junior liens and other junior interests is the norm. This is the case even though time-honored foreclosure principles dictate that a valid foreclosure produces a title free and clear of junior interests. In this situation, compelling concepts of morality, fairness and the prevention of unjust enrichment overcome a strong presumption that normal lien priority rules should govern. Overall, courts and the Restatement reach the correct result in this context. On the other hand, when the purchaser at a tax sale is a mortgagee or other junior interest, courts improperly invoke morality and fairness concepts to justify survival and revival. Here the purchaser does not act unethically and there are no valid moral or fairness arguments for departing from normal priority rules, so modern courts should follow the Restatement approach.

Ben Barros

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

February 24, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2008

Advice to Law Journals, Part 25

Littleprince 25 Keep up with work or it will overwhelm you. 

Actually, this is great advice for academic life in general.  And the image I use for this is from the book where I first learned this years ago--the Little Prince, who had to weed the baobabs on a daily basis or they'd overwhelm him.  Make sure you weed your garden (or in his case planet) on a daily basis or it will simply overwhelm you.  Get your cite-checking done on time, read the article submissions, deal with authors, write your note ... whatever it is that needs to be done, do it now.

I had another lesson in this when I began serving as book reviews editor of Law and History Review.  It's a great job, by the way, because it lets you keep up with the latest in the field.  And as service goes, it's pretty great because there's a high intellectual component to the job: matching up reviewers with books--trying to figure out who has a good vantage to review a book. Sometimes I try to use reviewers who have worked in similar records but for a different time period or in a different location or people who work in the same period but ask different questions. And a lot of times, of course, you want a review who's working in exactly the time and record and questions under review.  It's pretty cool.  However, it was immediately apparent to me that it would require tending on a daily basis.  Send the books out, edit the reviews when they come in, get them packaged for the press, read the page proofs....

And so this is the end of my series on advice to law journals.  I started out with 18 or so ideas and added a few along the way, some in response to readers--so that it grew to 25 pieces of advice.  I hope it's been of some use.  Though I do wonder, because some anonymous "top twenty law review editor" recently asked Eugene Volokh for some advice.  The editor wondered if it would be a good idea to require all submissions electronically.  I continue to think that law reviews should do everything they can to get scholarship in the door.  It's a bad idea to limit the ways articles will come in.  That puts the convenience of the editors above the good of the journal.  Alas, it's hard to tell law review editors this.  After all, they're in training for hierarchy and right now they're on the top of the pyramid.  (This ought to be the subject of another piece at some point.)

This is an ending of another sort as well, for I shall be giving up my position as faculty adviser of the Alabama Law Review at the end of this academic year.  It's been a huge pleasure and honor to work with the students for six years--and for six years at the Oklahoma City University Law Review before that.  I shall miss the law reviewers.  It's a great pleasure to work with people who're so smart and dedicated and are excited about writing their first piece of serious scholarship.  I think one of the reasons that faculty members often appear so youthful is that they have the good fortune to spend so much time around enthusiastic students; the students keep us young.

I'm also going to be posting here less frequently than I have for a while (I know, I know--how will the world survive?!)  For one thing, now that I've started reposting stuff I've done before. That's a sure sign that I've reached the end of my usefulness here.  You know it's time to find a new friend when you start telling the same stories and I think the same is true for blogging.

I am also committed to finishing University, Court, and Slave.  So, having said my piece for the time being, I'm only going to be posting intermittently for a while, as I work on my manuscript of University, Court, and Slave.  That's a book about moral philosophy in the old South; I'm interested in the role of slavery and property in the thought of intellectuals in the old South and how those ideas related to what happened in the judiciary.  It's a project that's consumed my life off and on since I entered graduate school in 1992 (with several multi-year detours through colonial legal thought, violence and law in the Jim Cow era, reparations, and contemporary property law) and it's something that I'm thoroughly enjoying working on.  It is relevant right now, because a bunch of schools are going back to revisit their histories with slavery.  A lot of this was inspired, I think, by Brown University's Steering Committee on Slavery and Justice.  That committee was a success and other schools are starting that process of self-investigation.  Moves are afoot at William and Mary, the University of Maryland, and Harvard for similar investigations.  We'll see where they go....

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

February 20, 2008 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 19, 2008

War and Peace: Art and Cultural Heritage Law in the 21st Century

Warkahead If I could be anywhere on March 4, I'd be at the Cardozo Public Law, Policy, and Ethics Journal's symposium on War and Peace: Art and Cultural Heritage Law in the 21st Century.  The Cardozo Law School website  says:

Cardozo Public Law, Policy and Ethics Journal and The Lawyer’s Committee for Cultural Heritage Preservation are presenting an all-day symposium, on how to prevent looting during times of both war and peace, how to deal with looted cultural material that enters into the international art market, and legal issues related to restitution of art works. Donny George, former director of the Iraq Museum in Baghdad is a presenter.

There's a terrific line-up of speakers:

10:45am  Iraq and Afghanistan
Donny George, former Director General, Iraq Museum; former Chairman, Iraqi State Board of Antiquities and Heritage; Visiting Professor, State University of New York at Stony Brook
Matthew Bogdanos, Colonel, US Marine Corps
Brian Rose, President, Archaeological Institute of America; Curator-in-Charge, Mediterranean Section,
University of Pennsylvania Museum of Archaeology and Anthropology
Patty Gerstenblith, Director, Program in Cultural Heritage Law, DePaul University College of Law

12:00 Lunch

1:30pm  Archaeology in the Americas
Sharon Cohen Levin, Chief, Asset Forfeiture Unit, US Attorney’s Office, Southern District of New York
Terence N. D’Altroy, Professor of Anthropology, Columbia University
Todd Swain, Park Ranger and Special Agent, National Park Service
Robert Palmer, National Park Service NAGPRA Civil Penalties Investigator, Assistant Professor of Behavioral Sciences, Loras College
Sherry Hutt, Manager, National NAGPRA Program, National Park Service

3:15pm  World War II
Lucille A. Roussin, Professor, Cardozo School of Law
Monica Dugot, Director of Restitution, Senior Vice President, Christie’s International
Lucian Simmons, Worldwide Head of Restitution, Senior Vice President, Sotheby’s, New York
John J. Byrne Jr., Founding Partner, Byrne Goldenberg & Hamilton
Howard Spiegler, Partner, Herrick, Feinstein

4:45pm  Summary Session: What are the different approaches to returning cultural property and do they work?
Lucille A. Roussin, Adjunct Professor, Cardozo School of Law

The illustration of the Warka Head, an antiquity looted from the Iraqi National Museum, comes from the U.S. Department of State's Bureau of Educational and Cultural Affairs.


February 19, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Singer on Normative Methods for Lawyers

Joseph William Singer (Harvard) has posted Normative Methods for Lawyers on SSRN.  Here's the abstract:

How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists.

Because there are better and worse ways of making normative arguments and because both lawyers and law students need to know how to make such arguments, this article explains four basic tasks of normative argument and outlines a number of different ways lawyers accomplish those tasks. It then applies these various normative methods to a basic property law case. Bringing to consciousness these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.

Ben Barros

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

February 19, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Zoning and the Subprime Crisis

Over at the VC, Ilya Somin has a post on possible links between restrictive zoning and the subprime market.  I have to say that I'm a bit skeptical.  I can see how zoning increases housing prices, but I can't see too much of a link between zoning and people getting mortgages on houses that they couldn't afford.

Ben Barros

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

February 19, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)

Monday, February 18, 2008

Subprime Blogging

Over at Daily Sprawl, Chad Emerson is keeping tabs on various mortgage issues.  Folks interested in the subject should check it out.

Ben Barros

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

February 18, 2008 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Singer on Property Norms and Externalities of Ownership

Joseph William Singer (Harvard Law School) has posted How Property Norms Construct the Externalities of Ownership on SSRN.  Here's the abstract:

The relation between property and sovereignty is a contested one. Traditional norms identify the protection of both persons and property as two of the core functions of government. However, these twin goals come into conflict when the existence or exercise of a property right results in harm to others. Yet it can be argued that recognition of any property right necessarily harms others by excluding them from resources they may need for human life. How then do we determine when an exercise of ownership is legitimately viewed as a "self-regarding act" that does not affect the legitimate interests of others (and thus does not involve any negative externalities) and when such an exercise does harm others and thus comes within the legitimate sphere of government regulation? Property norms help answer this question by orienting us in a moral universe through background understandings that define legitimate interests that deserve legal protection. Norms orient us, first, by telling us who is an "owner" and who is a "non-owner" with regard to any particular entitlement in a particular resource, and second, by telling owners when they are obligated to take into account the effects of their actions on others and when they are entitled to think of their own interests alone. In so doing, property norms define which externalities we as a society must pay attention to, worry about, and seek (if possible) to prevent.

Ben Barros

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

February 18, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Saxer on Religious Accessory Uses

Shelley Ross Saxer (Pepperdine) has posted Faith in Action: Religious Accessory Uses and Land Use Regulation on SSRN.  Here's the abstract:

This article details the application of constitutional, land use and tax law principles to non-religious facilities and activities, within religious institutions, considered accessories or auxiliaries to the institutions' principal religious function. To qualify them as accessory uses, the religious institution must establish that these non-religious/secular uses are necessary to the religious exercise of the institution's members and guests. The article compares the tests for accessory uses applied in land use cases interpreting the Religious Land Use and Institutionalized Persons Act (RLUIPA), with the test for auxiliary uses employed by cases determining the tax exempt status of certain religious organizations. The idea of accessory uses was developed in land use law according to the principle that because the primary use (religious worship) was permitted under the zoning regulations or a variance, the secondary and incidental uses should likewise be protected. On the other hand, the integrated auxiliary principle proceeds from the idea that the religious institution should not be burdened by government regulation. Therefore, those activities and facilities meeting the definition of an integrated auxiliary likewise cannot be burdened. The article proposes that the rationale behind providing protection for accessory uses under the RLUIPA and the rationale behind offering tax relief for religious auxiliary uses are the same: that religious exercise should not be unnecessarily burdened by the government. Therefore, the article suggests a consolidated approach be created wherein an auxiliary use that qualifies for tax exempt status likewise should warrant protection under the RLUIPA as an accessory use, and vice versa. By combining the approaches for tax exemption and land use regulation, religious freedom will be more consistently secured. To avoid violating the Establishment Clause, the article warns, the government must not become so entwined with legislating or acting in the area of religious worship as to express a preference for one religion over another, or religion over irreligion. Ultimately, it is a difficult line that the state or federal government must walk: avoiding interference with religious exercise on one side and benefiting or preferring a certain religion over another on the opposite side. The article concludes that the laws governing tax exemptions can inform land use cases struggling with the issue of accessory uses and constitutional protection under RLUIPA. There are three reasons why tax laws are helpful: 1) tax courts and legislatures have struggled to answer the same basic question of what constitutes an accessory use; 2) tax laws have embraced a more cooperative approach, allowing religious institutions to define which accessory uses are reasonably devoted to church purposes (and therefore deserving of tax exemption); and 3) tax courts have increasingly recognized that the term religious use constitutes some activities, such as recreation and social gatherings, not traditionally considered religious in nature. On the other hand, land use decisions have not provided any consistent approach to identifying accessory religious uses, and some courts have required the religious institution to independently establish the religious nature of the use without the benefit of referencing the primary religious function of the organization. Finally, the article proposes that the RLUIPA be broadly construed to protect all accessory uses that contribute directly to the religious mission of the institution, regardless of whether their independent religious nature is established.

Ben Barros

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

February 18, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

I'm Back

Sorry for the lack of posting in the last week.  I had the flu for one part of the week, and was on the road for the other.  Not a good combo.

Ben Barros

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

February 18, 2008 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Monday, February 11, 2008

Indian Head Rock Dispute

The New York Times has the latest on a rock that's claimed by Kentucky and Ohio and has some historical significance.


February 11, 2008 | Permalink | TrackBack (0)

Sunday, February 10, 2008


Honeydripperjailscene Saw a fantastic movie last night--John Sayles' latest, Honeydripper.  Danny Glover stars as the proprietor (Tyrone "Pinetop" Purvis)  of a failing blues club in Harmony Alabama in 1950.  Never been to Harmony, but I take it from mapquest that it's got to be rural--down near Andalusia, west of Enterprise (my favorite name for a town e-v-e-r).  Closest city's Mobile.

I'm not going to be able to do anywhere near justice to Pinetop.  Suffice it to say that he's a veteran of World War I.  I think he must have known some of my heroes over there, like O.B. Mann, about whom it was said that he had "come back from the war in France with exaggerated notions of social equality and thinking he could whip the world."  Ah, what a tribute to people who remade the world and the struggles that they face.

Anyway,  Pinetop's property's about to be foreclosed (see that's the propertyprof hook!) and he needs a big night to stave off foreclosure and pay off some other loans that are coming due.  The plan's to have a headliner--Guitar Sam--draw a big crowd.  It's easily predictable that Guitar Sam doesn't make it. So in desperation Pinetop decides to use Sonny Blake (Sonny as in Son of God?), who's a World War II veteran.  Sonny'd gotten off the train in Harmony, looking for meal and a place to stay and after he found the meal and was on his way looking for a job picking cotton, he ran into "the law."  He was arrested and convicted of "gawking with intent to mope" and given an indefinite sentence, probably until the cotton was picked.  Anyway--I'm not doing justice to this--but Pinetop makes an arrangement with the sheriff to have Sonny play for the evening in place of Guitar Sam.  The plan's to start Sonny off playing, then cut the lights off and make off with the loot--but once Sonny starts playing, Pinetop realizes what he's got and lets Pinetop keep playing.

So as I was driving home last night, past the Tuscaloosa County Courthouse my mind wandered to the question whether there are records of convictions for vagrancy up there on the seventh floor that tell similar stories.  I don't know--been up there only once and I came across all sorts of stuff (like a stack of absentee ballots from the early 1960s).  Was up there so that one of my students could show me the records he found of a story--which he'll tell at the appropriate time--of a slave who sued for his freedom.  It is a saga of epic proportions--a nineteenth century Odyssey.  There are all sorts of stories to be told, if we're willing to look for them.

One other thought on this: shade of Sayles' fabulous 1984 Brother From Another Planet, where the hero was able to fix electrical appliances and instruments.

There's some Toni Morrison intergenerational stuff going on, including flashbacks at various points--all very sophisticated.  One more cool thing about this: John Sayles was in town earlier in the week for the opening at the BAMA Theater.   Here's the Univeristy of Alabama student newspaper's write-up about it.  Yup, never know what cool things you're going to find in this town!


February 10, 2008 | Permalink | Comments (0) | TrackBack (0)

South Carolina Monument In Hamburg

Thanks to Ann Bartow for a pointer to this story from the South Carolina newspaper The State on the Hamburg, South Carolina massacre of 1876 and the monument that's already there--as well as efforts at historical preservation in Hamburg.  Here's a taste of the story:

The town of Hamburg, a tiny community of freed slaves that existed after the Civil War, has all but disappeared from South Carolina’s history.

But the impact of the massacre that happened here in 1876 along the Savannah River marked a turning point in S.C. race relations for generations.

The Hamburg Massacre, where white militia executed five black men without trial, launched a new beginning for white supremacy in South Carolina. ...

Today, expensive homes and an 18-hole golf course line the river bank where Hamburg once stood.

“It’s so eerie. Not only has the history of this place vanished, but the memory has vanished, too,” said historian Stephen Budiansky, who chronicles the Hamburg Massacre in his just-published book, ”The Bloody Shirt.” “Even the physical remains are gone.”


February 10, 2008 | Permalink | TrackBack (0)

Saturday, February 9, 2008

Ball on Privacy, Property, and Public Sex

Speaking of Carlos Ball, he has posted Privacy, Property, and Public Sex on SSRN.  Here's the abstract:

This Article argues that the constitutional right to sexual liberty should include the right to engage in public sex under certain circumstances. In doing so, the Article contends that the right to sexual liberty should not, as the Supreme Court has held, be site-dependent, that is, its scope should not be limited to sexual conduct that takes place in the home and other private places. The Article reviews the sociological literature on public sex to explain how sexual actors frequently and effectively privatize public sex sites. By analogizing to the privacy protection afforded by the Fourth Amendment, the Article argues that what should ultimately matter in determining the scope of the right to sexual liberty under the Due Process Clause is not where the sex takes place but whether the sexual actors' expectations of privacy are reasonable. In the end, the Article seeks to problematize the seemingly intuitive notion that, in matters of sex and sexuality, the concept of privacy is inextricably linked to geographic sites that are private.

I attended a workshop where Carlos presented an earlier version of this paper.  His discussion of the sometimes private nature of public spaces is particularly interesting.

Ben Barros

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

February 9, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Ball from Penn State to Rutgers-Newark

Brian Leiter is reporting that property prof Carlos Ball is moving from Penn State to Rutgers-Newark.

Ben Barros

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

February 9, 2008 in Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 6, 2008

Reprising Hippie Jurisprudence


In light of Orin Kerr's post on Judge Fullam's 1968 opinion regarding the prosecution of a "hippie", it may be time to reprise our post from last summer on hippie jurisprudence.  The post was inspired by an issue of Rolling Stone celebrating the magazine's fortieth anniversary. 

Very close readers of the legal blogosphere may recall that I read Rolling Stone (as a way of keeping connected to my students, although that strategy doesn't work).  This one, however, is different.

First, the on-line version has an interactive map, which I recommend--click on San Francisco and you'll get part of Grace Slick's White Rabbit.

Second, an article by Princeton University historian Sean Wilentz (author of such volumes on the nineteenth century as Chants Democratic and The Rise of American Democracy.) Wilentz locates 1967 as the start of the culture wars: free love & drugs vs. stability.  Locating major trends in American culture in a single year is always hard--though there have been some really successful books built around years (Kenneth Stampp's 1857; Louis Mazur's 1819 immediately come to mind.)  And while I would have emphasized more of the counter-culture and less of the conservative response were I fortunate enough to be writing for Rolling Stone, the essay's well worth a read.

But to return to the story; we're spoken a little bit about aloha jurisprudence.  And now I think we might want to talk a little bit about hippie jurisprudence of property.  "Steal this Book" is a rather depressing account of respect for law and property. But I wonder if there's something more serious that can be done here? Legal historians spend a good deal of their energy trying to find ways to link larger culture to the rhetoric and behavior of judges.  So the question is natural: did judges adopt a language or reasoning style that sprang from the hippies?

In the context of the summer of love (and its wake), one wonders how attitudes towards squatter's rights, for instance, might have changed. (In fact, this issue of Rolling Stone talks a little about squatting--Owsley, the king of LSD, and his wife "now live in Australia forty-five minutes from anywhere on 120 acres of land he claimed by squatting on it like a pioneer.")  Did judges adopt more communal approaches to property or alter the law in ways that might suggest hippies' ideas?  Just so happens I think there may be a few cases from the early 1970s that echo hippie rhetoric. 

Let me suggest a few in particular.  One is about beach access--from the early 1970s.  Then there is U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), which protected hippies from discrimination in food stamps.  I'm not quite sure that's what I'd call hippie jurisprudence, but it grows from a core of values of non-discrimination, which sound rather "hippian."

Then there's the anti-hippie ordinance (which prohibited people from sitting in a park at Carmel-by-the-Sea), which the California Supreme Court struck down in 1971 in Parr v. Municipal Court, Cal.3d 861, 479 P.2d 353 (Cal. 1971).

Continue reading

February 6, 2008 | Permalink | Comments (1) | TrackBack (0)