PropertyProf Blog

Konomark and the extension of Aloha Jurisprudence

While Alitorros is up in Montreal enjoying Law and Society, I've been sweating out the move to Chapel Hill.  Now I'm in a pet friendly hotel in Chapel Hill, getting caught up on my blog reading....

Via Eric Johnson over at prawfsblawg, I've just learned about "konomark"--a pineapple inside a circle. 

It's a symbol that "that lets visitors to your website know that you are generally willing to share your copyrighted content, such as photos, educational materials, music, etc., with folks like yourself, for free. The konomark is an invitation to e-mail you and ask you for permission."

This is Eric's idea--he blogged about it last April over at prawfs, but I missed it back then.  I think this is great--and a great symbol of friendliness.  As the konomark website says,  "The Hawaiian word 'kono' means to invite, prompt, or ask in. The 'mark' part is pretty self-explanatory – the idea is to mark content that's shareable."  Makes me happy to see that a Hawaiian symbol is used to invite sharing of property--and makes me think that this is a further piece of aloha jurisprudence! (More on aloha jurisprudence here.)  I'm going to start konomarking my papers.  And maybe we'll have a similar sign for access to real property sometime soon--perhaps a palm tree in a circle?!

Alfred Brophy

Off to Law & Society

I'm heading to Montreal for the Law & Society Conference, which will feature a great set of property panels.  Internet access permitting, I'll try and post from there.

Ben Barros

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The Latest Talk about Cultural Property

... from the New York Times, discussing James Cuno's Who Owns Antiquity? Museums and the Battle Over Our Ancient Heritage, just published by Princeton University Press.  Cuno is also editor of Whose Muse? Art Museums and the Public Trust published in 2006.

The article begins by asking this question: "To what culture does the concept of “cultural property” belong? Who owns this idea?"  I'm not sure that's the most the most direct route to the bottom of "cultural history" questions, like what to do with the Elgin Marbles.  However, it opens up some interesting ground for discussion of what "cultural property" is and why (or whether) we should care about it.

The article continues:

It has, like much material property in the last 50 years, often changed hands. And in doing so, it has also changed meanings and grown in importance. It now affects the development of museums, alters the nature of international commerce and even seems to subsume traditional notions of property. ...

What was profound in the West was not the looting but attempts to end it, along with ambitions that went beyond assertions of power and possession. The desires of the greatest collectors and museums have been to preserve and to understand (leading, for example, to the decoding of the Rosetta Stone and the preservation of artifacts that would have otherwise been lost). This gave birth to what Mr. Cuno calls “encyclopedic museums,” those that encompass the world’s cultures while seeking an Enlightenment ideal of universalist understanding.

Seen in this light the very notion of cultural property is narrow and flawed. It is hardly, as Unesco asserted, “one of the basic elements of civilization.” It illuminates neither the particular culture involved nor its relationship to a current political entity. It may be useful as a metaphor, but it has been more commonly used to consolidate cultural bureaucracies and state control.

But if cultural property really did exist, the Enlightenment museum would be an example of it: an institution that evolved, almost uniquely, out of Western civilization. And the cultural property movement could be seen as a persistent attempt to undermine it. And take illicit possession.

Close readers of propertyprof will recall that we've been following these issues in a lot of different ways--from John Merryman's volume on the Elgin Marbles to Hiram Bingham's exploration of Machu Picchu (and here).  And, of course, the critical question: Who owns American folk culture?  Parker Brothers, apparently!

Alfred Brophy.

GELPI Report on Takings Legislation

The Georgetown Environmental Law and Policy Institute has released a report on the impact of takings legislation.  Here is a summary of the findings:

The major findings of the report are that the takings agenda has undermined community protections by forcing a roll back of existing legal rules and/or by exerting a chilling effect on new legislative activity, special interests such as developers and timber companies have been the primary beneficiaries of takings legislation, the takings laws have fomented and exacerbated neighbor-neighbor conflicts over land use issues, the takings agenda has conferred large windfalls on certain owners either in the form of taxpayer-funded awards or special exemptions from the rules that apply to the rest of the community, and the property rights agenda has undermined the democratic process.

Ben Barros

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Hamilton from Chicago-Kent to Illinois

According to Brian Leiter, property prof Dan Hamilton is moving from Chicago Kent to the University of Illinois.

Ben Barros

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Carillo on ARMs

Jo J. Carrillo (Hastings) has posted Dangerous Loans: Consumer Challenges to Adjustable Rate Mortgages on SSRN. Here's the abstract:

This article analyzes the relationship between innovative mortgage
products, like adjustable-rate mortgages, and the first wave of consumer legal
challenges brought against those products under the Truth in Lending Act
(TILA), 15 U.S.C. section 1601, et seq. (TILA).

Ben Barros

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Davies on Assured Supply Laws

Lincoln Davies (Utah) has posted Just a Big, 'Hot Fuss'? Assessing the Value of Connecting Suburban Sprawl, Land Use, and Water Rights Through Assured Supply Laws on SSRN.  Here's the abstract:

States and localities increasingly recognize the need to link land use and water supply planning. As the populace grows and sprawl continues, the strain on available natural resources, particularly water, makes this recognition all the more important. This Article addresses an increasingly common type of this planning link "assured supply" laws that require developers to prove they have secured adequate water stock before commencing construction. The Article performs a qualitative analysis of the potential benefits and costs of such laws and finds that, on balance, assured supply laws provide at least five significant benefits: consumer protection, greater holistic project- and agency-level planning, improved efficiencies in water rights allocation, and increased water conservation. Notably, however, these laws appear to do very little to diminish sprawl and, if designed incorrectly, may actually exacerbate it. The Article then extracts five dimensions around which localities might design their assured supply laws to maximize their benefits and minimize possible costs, concluding that such laws are most likely to deliver optimal benefits when they are (1) mandatory, (2) stringent, (3) statewide, (4) broadly applicable, applying to more than only large projects, and (5) interconnected with broader land-water and environmental lanning mechanisms.

Ben Barros

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Heller and Hills on Land Assembly Districts

Dan Kelly's response (see post below) reminded me that the Harvard Law Review has posted Land Assembly Districts, by Michael Heller (Columbia) and Rick Hills (NYU), online.  Here's the abstract:

Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or “LADs.” This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and moral intuition underlying LADs is simple: when the only justification for assembly is over-fragmentation of land, neighbors should be able to decide collectively whether their land will be assembled. Our legal theory solution is equally simple: use property law to retrofit communities with a condominium-like structure tailored to land assembly. Let’s try giving those burdened by condemnation a way to share in its benefits and to veto projects they decide are not worth their while.

Ben Barros

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Two by Kelly

Daniel B. Kelly (Olin Fellow, Yale) has posted two pieces on eminent domain on SSRN.  They are:

The Limitations of Majoritarian Land Assembly 

In their article, Land Assembly Districts, Professors Michael Heller and Rick Hills address the collective action problem arising from excessively fragmented land. They propose an innovative solution: Land Assembly Districts (or LADs). In this Article, I raise several concerns regarding LADs in particular and majoritarian land assembly in general. LADs rely on majority voting by a neighborhood's existing owners. Yet majority voting, coupled with the possibility of heterogeneity, means that LADs may both approve socially undesirable assemblies and disapprove socially desirable ones. LADs also permit owners to bargain over a project's surplus. But such bargaining creates additional costs for developers, as well as a potential bilateral monopoly problem, both of which may result in fewer desirable assemblies. There is thus no reason to believe a priori that LADs are superior to either eminent domain or private assembly. Finally, because LADs require courts to delineate the circumstances in which eminent domain would continue to be permitted, LADs may not even offer an administrability advantage. Indeed, LADs ultimately may rely on judicial expertise to an extent the authors themselves believe is problematic. Still, LADs constitute a creative proposal worthy of consideration.

Pretextual Takings

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a particular private party is to allege that the taking is "pretextual." This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motivations, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between the government and private parties. When the state lacks information regarding the optimal site for an assembly, the state may need to rely on a private party to identify, as well as develop, a particular site. However, when the state itself possesses information regarding the site, precondemnation private involvement, as well as post-condemnation involvement by a preferred private party, is generally unnecessary. Such involvement increases the likelihood of a pretextual transfer without any corresponding public benefit. The Article concludes that, based on these differences, a burden-shifting framework, analogous to Title VII's test for identifying pretext, can be adopted in the takings context. The new framework is then applied to several situations in which allegations of pretext are likely to arise.

Ben Barros

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Property in Space

The Boston Globe has a great article on property in space.  It raises a number of interesting theoretical issues about property, and might make a great teaching tool.

Hat tip:  Ilya at the VC.

Ben Barros

Asteroid Photo From NASA via Wikicommons

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More Black Market Body Parts

From CNN.com:

The former head of UCLA's cadaver program and a businessman were indicted Friday on eight felony counts involving black market sales of human body parts.

Henry Reid, the former director of UCLA's willed body program, allegedly sold donated body parts to businessman Ernest Nelson, who then resold them to medical, pharmaceutical and hospital research companies.

"As a result, Ernest Nelson was able to supply over 20 of his clients with hundreds of body parts and received over $1 million for the supplied body parts," according to the indictment.

Ben Barros

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Sprankling on Owning the Center of the Earth

The UCLA Law Review has posted John G. Sprankling's Owning the Center of the Earth online.  Here's the abstract:

How far below the earth’s surface do property rights extend? The conventional wisdom is that a landowner holds title to everything between the surface and the center of the earth. This Article is the first legal scholarship to challenge the traditional view. It demonstrates that the “center of the earth” theory is poetic hyperbole, not binding law. Broadly speaking, the deeper the disputed region, the less likely courts are to recognize the surface owner’s title. The emergence of new technologies for use of the deep subsurface—such as heat mining and carbon sequestration, both of which may help mitigate global climate change—requires that we develop a new model of subsurface ownership. Accordingly, this Article proposes and evaluates four alternative approaches to subsurface property rights. The preferred model would recognize the surface owner’s title for only 1000 feet downward. If adopted, this approach would eliminate over 99 percent of the supposed real property ownership in the United States.

Very cool!

Ben Barros

Public domain image from NASA via Wikicommons

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Semeraro on Sweet Land of Property

Steven Semeraro (Thomas Jefferson) has posted Sweet Land of Property?: The History, Symbols, Rhetoric, and Theory Behind the Ordering of the Rights to Liberty and Property in the Constitutional Lexicon on SSRN.  Here's the abstract:

This article critiques the property rights movement‘s position that courts should scrutinize property regulation to the same extent that they now scrutinize fundamental liberty-based claims. At its root, the debate over the proper degree of scrutiny for property rights claims is a debate about the appropriate scope of a society‘s freedom to organize and reshape itself in search of a greater good. Strict scrutiny of regulation truncates the debate, demanding that we privilege what has been to guard against the hazards of the unknown. Greater judicial deference, by contrast, frees us to seek, through governmental actors pursuing the public interest, a better, more fulfilling society at the risk that we will fail.

Reviewing an array of arguments based on (1) intellectual and social history, (2) the rhetoric of modern jurisprudence, and (3) property law theory, this article shows that the movement‘s adherents have failed to make their case for strict scrutiny of property regulation. This article‘s critical assessment of the property rights movement cannot establish that judicial deference to legislative judgment in property rights cases is necessarily morally superior to more probing scrutiny. That the property rights movement has made virtually no progress more than two decades after it began, however, casts some measure of doubt on the possibility that it ever will.

Ben Barros

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Property and Progress: Antebellum Landscape Art and Property Law

(Doing some cross-posting from thefacultylounge.org this morning....)
My time in Tuscaloosa is rapidly drawing to a close.  Yesterday I had the pleasure of attending graduation and on Thursday I'm going to give a lecture on the relationship between landscape art and property law in the years leading into Civil War at one of my favorite--and one of our country's finest--art museums, the Westervelt Warner Museum.  (The Westervelt Warner owns one of Hiram Powers' statute's The Greek Slave, which is under discussion over at Althouse's shop. The statue served for antebellum Americans as a reminder that Greek Christians could be put into slavery and that we should treat others as we would want to be treated.  In essence, it tried to put Americans into a mindset that would cause them to oppose slavery.  That trope has a distinguished lineage in antislavery advocacy.)

The talk centers around my favorite work of American art, Asher B. Durand's Progress (1853), which just so happens to be owned by the museum.  This will be a huge treat for me, to have the chance to talk about that most magical of paintings at its home.  And, in fact, this talk is part of welcoming it home from travels to the Brooklyn Museum of Art and then out to San Diego for a major exhibit on Durand.  (Alice Walton's  Kindred Spirits , which is the centerpiece of her art museum Crystal Bridges was also a centerpiece of the show.)

I try to join two themes here--first, the centrality of property and particularly humans' footprints on the land, in antebellum landscape art; second, the ways that antebellum property law reflected and amplified those values.  I don't think either of those themes is controversial; however, I have not seen them put together.  The correlation between them is not perfect--a substantial part of landscape art reveals concern over increasing human intrusions on nature.  Just not Durand's Progress.  It’s a great canvass for seeing all sorts of images of what "progress" meant-–the shift from the native Americans over on the left (the state of nature), then moving across the canvass to the right, the telegraph wires, the steam boats, the canal, the peddler, the boy bringing the cattle to market, the church, the railroad roundhouse....

I've written about pieces of this talk in a bunch of places--years ago back at co-op, then here at propertyprof (focusing on Hawaiian landscape art) and ratio juris, and earlier this year at legalhistoryblog.  So major chunks of this have already been "workshopped" on blogs already.  I'll be posting a paper about this by the end of the summer.  In the meantime...

Continue reading

Gardner on International Application of Regulatory Takings

Royal C. Gardner (Stetson) has posted Taking the Principle of Just Compensation Abroad: Private Property Rights, National Sovereignty, and the Cost of Environmental Protection on SSRN. Here's the abstract:

Part I of this article provides a brief background of the United States takings jurisprudence. It examines how the Fifth Amendment protects private property rights and when environmental regulation implicates the payment of just compensation. Part II reviews the methods by which the United States government seeks to protect the environment without infringing on private property rights, focusing on financial incentives and disincentives. Part III compares the many parallels between private property rights and national sovereignty. Part IV explores how lessons derived from the United States experience in balancing private property rights and environmental concerns are relevant to international environmental issues. It focuses on how the United States seeks to influence the environmental policy of other states through financial incentives and disincentives in multilateral and bilateral contexts. Concluding that such conditional assistance is consistent with the domestic principle of just compensation, the article offers a framework for when such assistance is justified.

Ben Barros

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DePaul Conference on Acquiring and Maintaining Collections of Cultural Objects

This fall, on October 16, DePaul Law School's Center for Intellectual Property Law and Information Technology and the Program in Cultural Heritage Law will host a conference on "Acquiring and Maintaining Collections of Cultural Objects: Challenges Confronting American Museums in the 21st Century."

Speakers include: Jame Cuno, Art Institute of Chicago; Ildiko DeAngelis, George Washington University; Patty Gerstenblith, DePaul Law School; Thomas Kline, Andrews Kurth; Jennifer Kreder, Northern Kentucky University; John McCarter, Field Museum of Natural History; John Russell, Massachusetts College of Art and Design; Howard Spiegler, Herrick Feinstein; Martin Sullivan, Smithsonian National Portrait Gallery; and Stephen Urice, University of Miami School of Law.

Looks like a fabulous program!
Alfred Brophy

Antiquities under Siege: Cultural Heritage Protection after the Iraq War

The University of Chicago's Cultural Policy Center has just released Antiquities under Siege: Cultural Heritage Protection after the Iraq War.  Its website describes the book:

As Saddam Hussein's government fell in April 2003, news accounts detailed the pillaging of from the Iraq Museum. The looting of nearly 15,000 items from the Museum's collection grabbed headlines and briefly focused international attention on Iraq's threatened cultural heritage and the efforts to recover missing items. Less dramatic, though far more devastating, has been the subsequent epidemic of looting at thousands of archaeological sites around the country. Illegal digging on a massive scale continues to this day. If unaddressed, the same fundamental deficiencies that left Iraq's museums and sites vulnerable to looters will threaten the cultural heritage of other politically unstable regions.

Antiquities under Siege examines the criminal activity that continues to erode the traces of Mesopotamian, Judeo-Christian and Islamic cultures buried in the desert of Iraq, and investigates the global implications of this ongoing catastrophe. This book demonstrates that the disasters that have befallen Iraq's cultural heritage in the wake of the US-led invasion are both the result of the general failures of postwar planning and specific shortcomings in U.S. and international cultural policies protecting cultural heritage sites and artifacts.

Looks like a fantastic book!

Alfred Brophy.

Frishmann on Environmental Infrastructure

Brett M. Frischmann (Loyola Chicago) has posted Environmental Infrastructure on SSRN.  Here's the abstract:

This essay explores how my recent work on infrastructure and commons applies to environmental resources. Part I briefly describes the core idea, which is developed extensively elsewhere. Part II suggests how it might apply to the natural environment. Specifically, Part II (a) frames the difficult environmental valuation and management problems; (b) applies the infrastructure criteria and delineates environmental infrastructure; (c) offers a few insights regarding environmental management and regulation; and (d) considers how infrastructure theory relates to the literatures on ecosystem services and multiple use management.

The essay is based on a presentation at a panel on infrastructure commons at the 2007 Law & Society Annual Conference in Berlin, Germany. It will be published in the Ecology Law Quarterly along with three essays on infrastructure commons written by David Driesen, Gregory Mandel, and Marc Poirier.

I saw this paper presented at Law & Society.  Very interesting!

Ben Barros

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McCall on North Carolina Eminent Domain

Jamie R. McCall (UNC-Chapel Hill School of Gov't) has posted The Use of Eminent Domain by North Carolina Counties: Historical Patterns, Current Trends, and Decision Variables on SSRN.  Here's the abstract:

A 2006 report by the Government Accountability Office states that little data or research exists on the use of eminent domain by state or local governments. In an effort to help fill this knowledge gap, this capstone examines how eminent domain is used and what variables are important in the execution of eminent domain action by North Carolina county governments. This analysis uses data from a survey of county managers about eminent domain policies and practices. The data show a wide variation of how counties utilize eminent domain, but also suggest that the bulk of eminent domain action is for public infrastructure and public facilities. A wide variety of factors influence county government decisions to condemn property, and the presence of certain structures like religious institutions discourage counties from using eminent domain. Additionally, some counties also engage in alternative strategies before deciding to use their eminent domain authority.

Ben Barros

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Two From Dana

David Dana (Northwestern) has posted two new papers on SSRN:

Exclusionary Eminent Domain

This Article explores the phenomenon of "exclusionary eminent domain" - the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality, whether or not exclusion itself was the purpose of the condemnation. All condemnations exclude the condemned owner (and his or her tenants, if any) from the condemned property. Exercises of what I am calling "exclusionary eminent domain" are doubly exclusive because the displaced residents are unable to afford new housing in the same neighborhood or locality as their now-condemned, former homes. In exclusionary eminent domain, low-incomes households are excluded not only from their homes but also from their home neighborhood or locality.

Exclusionary eminent domain, as I am using the term, seems to occur in two distinct contexts. In the suburban context, a structure or structures occupied by low-income households are condemned by a predominantly non-low-income locality in the interest of attracting new development that will house or otherwise be geared to middle-class or wealthy people. The threatened condemnations of mobile home parks in suburban New Jersey towns such as Lodi are examples of this type of exclusionary eminent domain. In the urban gentrification mode of exclusionary eminent domain, a large city with a mix of wealthy and poor areas condemns low-income housing in a gentrifying or largely gentrified area, with the result that the displaced low-income residents must move to poorer areas of the city or out of the city. The use of threats of eminent domain to facilitate the massive Atlantic Yards development in north central Brooklyn - a development that will feature seventeen luxury towers to be constructed by Frank Geahry - illustrates this model of exclusionary eminent domain. This Article assesses the case for a new state constitutional law doctrine limiting exclusionary eminent domain, and argues that, on balance, the advantages of such a doctrine may exceed the disadvantages. The particular form of exclusionary eminent domain doctrine I am positing would incorporate two of the features of the most analogous existing doctrine, the state constitutional law doctrine regarding exclusionary zoning. Those features are, first, judicial evaluation of a locality‘s actions in terms of the metropolitan regional needs for low-income housing and each locality‘s fair share obligation with respect to those needs, and, second, the creation of a rebuttable presumption of illegality when the locality takes an action that will bring its stock of affordable housing below or further below its fair share obligation. An exclusionary eminent domain doctrine would not absolutely bar condemnation of low-income housing in a locality or neighborhood that otherwise has less than its fair share of such housing, but rather would result in the application of heightened review to such condemnations. The condemning authority would have to provide a more compelling, more-tailored justification for condemnation than rational basis review would require.

An exclusionary eminent domain doctrine would raise the cost to local officials of condemning low-income housing located in middle-class or wealthy neighborhoods or localities, and thereby would make it more likely that those officials would configure new development so as to leave such housing in place. The doctrine also would provide a strong incentive for a locality that wanted to proceed with the condemnation of low-income housing to create substitute low-income housing in the same neighborhood as the development site, as by doing so they would negate the claim that condemnations would drop the locality or neighborhood below its pre-condemnation fair share of low-income housing. In addition, the doctrine would have the effect of increasing the bargaining power of owners of low-income housing owners who want to sell, so that they would receive larger payments than they would have if there were no exclusionary eminent domain doctrine.

The Mismatch between Public Nuisance Law and Global Warming

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.

Ben Barros

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