Wednesday, February 6, 2008

Whitman Festschrift

To my pleasure, the Missouri Law Review's festschrift volume for Dale Whitman (volume 72, fall 2007) appeared in my mailbox this morning.  Lots of great articles--though I suspect my favorite will be Dale Whitman's "teaching property--a conceptual approach," which lists ten key concepts:

10. a joint tenancy might be severed by a conveyance by one of the joint tenants, even if the other joint was unaware of the action and did not consent to it.
9.  adverse possession is not a transfer of title from the former true owner, but rather creates a new original title in the adverse possessor.
8.  a future interest is "future" only in the sense that possession under it is deferred until some later time.
7.  restraints on alienation, unlike restraints on use, are widely disfavored and often held unenforceable.
6.  deeds, once delivered, are not ambulatory.
5.  a deed will transfer whatever interest the grantor holds, even if it is a lesser interest than the deed describes, unelss the deed contains language that is inconsistent with a more limited transfer.
4.  recording is not necessary to the effectiveness of a conveyance as between the parties.
3.  possession is often treated as teh equivalent of ownership except as against someone with better title.
2.  servitudes run to successors, on both the benefit and burden sides.
1.  rights in land can be created in a profusion of ways in our legal system.

Lots of wisdom from one of the masters.

Al Brophy

February 6, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 5, 2008

Advice to Law Journals, Part 24

We're nearing the end of advice to law journals....

24 Have some fun. 

Publishing a journal is a ton of work; try to have the experience itself be enjoyable. 

Al Brophy

February 5, 2008 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Monday, February 4, 2008

Epstein on Wealth in Real Property

Richard Epstein (Chicago) has posted How to Create - Or Destroy - Wealth in Real Property on SSRN.  Here's the abstract:

Current legal conceptions of property differ in the private and the public law. The former develops a comprehensive conception that gives full protection for each element in the bundle of rights┬┐possession, use and disposition┬┐which allows parties to enter into complex transactions that increase wealth for the parties without prejudicing outsiders. Constitutional doctrine gives strong protection to exclusion, but weak protection to use and disposition, and thus invites a complex range of government strategies that reduce property value, without creating any offsetting gain in third parties.

Ben Barros

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February 4, 2008 | Permalink | Comments (1) | TrackBack (0)

Sunday, February 3, 2008

Goldstein v. Pataki

Ilya Somin has a good post at the VC about this interesting Second Circuit case.  An excerpt:

The US Court of Appeals for the Second Circuit recently decided Goldstein v. Pataki, a case challenging the condemnation of homes and other property in Brooklyn for the purpose of transferring them to developer Bruce Ratner, owner of the New Jersey Nets. Ratner plans to use the land to build a new stadium for the Nets, as well as other facilities, including some 2250 new housing units.

Not surprisingly, the Second Circuit upheld the condemnations. Under Kelo v. City of New London, they had very little choice. As I discuss in great detail in this article, Kelo mandates very broad judicial deference to the government in determining whether a condemnation is a genuine "public use" under the Fifth Amendment. Any potential benefit to the general public is sufficient, even if it is greatly outweighed by the project's cost.

The case nonetheless reveals some of the serious shortcomings of Kelo and related precedents. Goldstein v. Pataki is a correct application of Kelo; it is also an example of the sort of abuse that more robust judicial protection of property rights could prevent.

Ben Barros

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February 3, 2008 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Saturday, February 2, 2008

Ceded Lands in Hawaii

In 1893, the government of the Kingdom of Hawaii, a constitutional monarchy, was overthrown by a group of mostly American planters and businessmen, supported by a contingent of U.S. Marines.  The revolutionaries subsequently established the Republic of Hawaii and entered into negotiations with the United States to seek Hawaii's annexation.  When Hawaii was annexed by the United States in 1898, the Republic of Hawaii ceded the public lands of Hawaii to the United States.  When Hawaii became a state in 1959, the United States conveyed more than a million acres of land this land to the new state, to hold in trust for five specified purposes, including "the benefit of native Hawaiians."  This "Ceded Lands Trust" is analogous to the school lands trusts established in the admission acts of most states admitted to the Union after about 1820.  Earlier this week, the Hawaii Supreme Court held that the State cannot convey lands from the Ceded Lands Trust to private parties until the claims of Native Hawaiians to these lands have been resolved.   Newspaper articles on the case can be accessed here and here. The opinion itself, Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, can be accessed here (careful; the file is enormous). 

Carl Christensen
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February 2, 2008 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Advice to Law Journals, Part 23

23  subsidize the journal (with academic credit).

One of my colleagues uses the wise phrase "if you subsidize something you'll get more of it."  I think applies well to lots of situations, including law reviews.  Want students to spend more time running the journal and producing an excellent work product?  Give them more academic credit for it.  This has received some attention of late over at Leiter Reports.  A few years ago at Alabama we increased the credit hours that the editor-in-chief and managing editors received for running the law review here, to a total of six hours.  My strong preference is for even more credit; I think the time they spend working on the journal justifies that.  It also gives a great incentive to students to take the review seriously.  My sense at the time that it was in line with the credit that the leaders of a lot of other flagship journals received.

ALB
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February 2, 2008 in Law Schools | Permalink | Comments (1) | TrackBack (0)