PropertyProf Blog

Bromley on Land Formalization

The Journal of Land Use Policy has an article in press by Daniel W. Bromley (Wisconsin, Applied Economics) called Formalising Property Relations in the Developing World: The Wrong Prescription for the Wrong Malady.  I can't find a link now, but will post one if it becomes available [UPDATE: Link Posted].  Here's the abstract:

Formalisation of property relations through the registration of land and the issuance of titles is but the latest in a long history of optimistic policy prescriptions imposed on the poor nations of theworld. As with the discreditedWashington Consensus, the imperative of formalisation flows from the flawed inductive logic that says” “rich countries have formalised tenure, therefore formalisation of tenure will help make you rich.”Unfortunately,empirical research on formalisation of tenure as a stimulus to agricultural investment is unable to establish any robust and reliable connection between “more secure” tenure and enhanced agricultural productivity. Urban slum dwellers who get titles but who are without work cannot possibly leverage credit from the banking sector. Formalisation erodes and displaces existing social networks and arrangements that do offer security. Formalisation offers little assurance that beneficial outcomes are inevitable. As with a long list of previous simple solutions to complex problems, this too shall pass.

This should be of interest to folks who are interested in Hernando de Soto's work (either pro or con).

Ben Barros

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Psychology of Heirlooms

I've been doing a lot of thinking lately about people's psychological relationships with their property.  On this subject, today's NY Times has a fascinating story about family heirlooms and the complex feelings that they generate.

Ben Barros

Photo from Wikicommons

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Heller and the Home

I just skimmed through the Supreme Court's decision in D.C. v. Heller.  I was struck by how narrow the opinion is, and how much it is focused on self defense in the home.  We talk a lot about homes here on Propertyprof.  It seems to me that Heller falls within the long tradition of cases that privilege homes as compared to other types of property.

Ben Barros

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Time and Family Property

Because here at propertyprof we sometimes talk about how mere passage of time confers a certain  dignity on property, however insignificant it started out, I thought you'd find this article from the New York Times of some amusement: it's advice on how to deal with family heirlooms (and how not to get burdened by them).  I've been dealing with some of this of late as I've been organizing my office.  Books that I've been dragging around for decades--even though I'm no longer interested in their subject (e.g., Railroads and Rate Regulation in the early twentieth century--that's an artifact from my days  of work on Progressive era administrative law)--I just can't part with.

My favorite piece of advice: "If you pay to move a piece across the country, you can do whatever you want with it."

You might also be interested in a companion piece, "The Tyranny of the Heirloom."

Two from Smith

Henry E. Smith (Yale) has posted two new articles on SSRN.

Community and Custom in Property

Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This paper provides an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else equal, informationally demanding customs require an audience with a high degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can piggyback on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e. outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information cost theory of custom sheds some light on the history and controversies over the numerus clausus (standardization and limitation of the set of basic property forms) and on the question of baselines of property entitlements in the law of takings.

Governing Water: The Semicommons of Fluid Property Rights

This Article applies an information-cost theory of property to water law. Because of its fluidity, exclusion is difficult in the case of water and gives way to rule of proper use, i.e., governance regimes. Looking at water through this lens reveals that prior appropriation employs more governance and riparianism rests more on a foundation of exclusion than is commonly thought. The development of increasing amounts of exclusion and governance are both compatible with a broadly Demsetzian account that is sensitive to the nature of the resource. Moreover, hybrids between prior appropriation and riparianism are not anomalous. Exclusion strategies based on boundaries and quantification allow for rights to be formal and modular, but this approach is particularly challenging in the case of water and other fugitive resources. The challenges of exclusion that water and other fugitive resources present often lead to a semicommons in which elements of private and common property both coexist and interact.

Ben Barros

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Dagan on Just and Unjust Enrichments

Hanoch Dagan (Tel Aviv) has posted Just and Unjust Enrichments on SSRN.  Here's the abstract:

In exploring the most fundamental question in restitution theory of what separates just from unjust enrichments, this essay undertakes three interconnected missions. The first is to situate the types of cases that prompt liability in restitution within a wider universe of enrichments, including those that trigger taxation as well as those deemed benevolent. My second mission is to defend the view that the concept of property cannot serve as the baseline for distinguishing just from unjust enrichments, and we should instead resort to the normative guidance of the foundational liberal values of autonomy, utility, and community. My third task is to show that this orientation need not generate legal indeterminacy or strip the law of restitution from its constitutive characteristics as one part of our private law. Rather, I argue that my approach to restitution theory can yield a happy doctrine, composed of sharp rules and not vague standards, and responsive to the properly interpreted injunction of correlativity that underlies the legitimacy of private law.

Ben Barros

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Justice Alito and Property Rights

Lyle Denniston at Scotusblog notes that Justice Alito took the unusual step of noting that he would have voted to grant cert in Goldstein v. Pataki, the public use case involving the Atlantic Yards development in Brooklyn.  As Ilya Somin comments, this could be a way of signaling disagreement with Kelo.  Of course, Justice Alito replaced Justice O'Connor, who dissented in Kelo, and the five-member majority in Kelo is still on the Court.

Ben Barros

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Should Homes Be Given Extra Protection From Eminent Domain?

I was facing a grading deadline and missed this when it came out, but Eduardo Penalver and Ilya Somin had an interesting blogospheric discussion about whether homes should be given additional protection from eminent domain relative to other types of property.  Ilya's last post on the subject contains links to the earlier portions.  I have supported this sort of disparate treatment before (here and here), as have a number of other property scholars.  It is interesting to see some real-world application.

Ben Barros

Photo from Wikicommons

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Third Anniversary of Kelo

Duly noted by Ilya Somin at the VC.  Ilya argues, among other things, that Kelo was an improvement on Berman and Midkiff.

Ben Barros

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Specific Performance of the Seattle Sonics' Lease

Out in Seattle Judge Marsha Pechman (W.D. Wash) has been conducting a trial over whether the Seattle Sonics must abide their lease with of the city's KeyArena for the next two years or whether they can move immediately to their new home of Oklahoma City.  Interesting stuff, whether the city can require specific performance of the lease; I think the case for specific performance is strong here.  It looks like there isn't a material breach of the lease by the city, only by the team, so the question is one of remedies. 

Which will it be, then, damages or specific performance?  Now, courts are obviously (and for good reason) reluctant to give affirmative injunctions.  I wouldn't be holding my breath for an affirmative injunction requiring the team to play in the KeyArena.  But I think here that a negative injunction--you can't play anywhere else when you're scheduled to play home games--may be appropriate.  Why would a negative injunction be superior to damages?

The question is whether harm is irreparable (with apologies to Doug Laycock!)--and irreparable injury is determined by whether we can measure the damage in dollars.  I don't think we can--or at least we can't with the specificity that we usually demand.  The damages to the city are going to be somewhat are to compute--how much lost revenue will there be (not just from the stadium lease, but from the Sonics overall)?  There's been a lot of talk in the trial of how difficult (or not) it will be to gauge the lost revenue--and no surprise here the Sonics' owners say it'll be easy and the city says it'll be hard.  The difficulty of computing damages is one of the key factors in determining whether you're entitled to an injunction and I think all the city needs to do here is make the case for computing damages look murky.

Of course, we also balance the equities in determining injunctive relief--do we think that the harm to the city of not granting the relief is substantially outweighed by the harm to the Sonics of granting relief?  On this there's some important evidence.  The city's interest is substantial--their beloved team is leaving; many people whose livelihood depends on the team are going to be hurt; the ripples will go out for a long way.  What about the harm to the team?  They claim they're going to lose $60 million over the next two years--that's a substantial harm, of course.  But remember two things--first, that's their allegation.  Second, that's balanced against the harm to the city. 

For me (fan of aloha jurisprudence and other populist strains in property law) perhaps the most exciting piece of this equity puzzle is the public interest--which we typically consider in cases where there are interests at stake beyond the parties to the litigation.  This is a great example of one of those cases and I think it points in favor of a negative injunction.  The community's interest here (and remember this is an equitable question of whether we're going to allow a company to breach a contract and only pay money damages) is in favor of keeping the team for the fans, as well as the people in the city who need the work the home games generate.  Anyway, we'll all know soon enough!

Jim Brunner of the Seattle Times has a great article in this morning's paper on the case.  You can also follow the trial on Jim's blog.

Alfred Brophy

Rose on Public Infrastructure and Environmental Resources

Carol M. Rose (Arizona) has posted Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources on SSRN.  Here's the abstract:

Two types of public infrastructure-roads and property rights-are often thought critical to economic development; this article compares their impacts on the natural environment. Both roads and property rights draw unfamiliar persons to remote areas, undermine existing informal resource practices, and enhance wide commercial trade, creating wealth but also reducing local resource diversity. New kinds of property rights hold much promise for environmental protection, but unlike roads and conventional property rights, environmental property rights would be tasked with curtailing commerce, as in roadless areas and caps on resource use. This sharp divergence from the traditional commercial mission of public infrastructure can limit support for environmental property rights, creating an opening for fuzzier and more consultative versions of environmental property.

Ben Barros

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Parent on Takings Constraints

Colin P. Parent (DLA Piper) has posted Takings Constraints: Mechanisms to Minimize the Uncompensated Increment and Limit the Government's Power to Take Property on SSRN.  Here's the abstract:

The breadth of takings scholarship has left useful ideas diluted amongst an ocean of theories. This article addresses that problem by creating a clear and useful taxonomy for takings constraints by which takings theories can be categorized and analyzed. These new categories are (1) compensatory restraints on how much government must compensate property owners, (2) categorical constraints which absolutely limit which property can be taken and for what purposes, and (3) processes constraints which limit how property is condemned.

Furthermore, this article suggests that compensatory restraints are appropriate to minimize economic harms, and categorical constraints are only appropriate to minimize the destruction of property owners' autonomy. This new theory is only possible with the use of the new taxonomy to describe takings constraints.

This paper does not attempt to argue which interests of property should be protected - a topic already developed in the scholarship. However, its new theory provides a framework for policymakers to apply when deciding what takings constraints to use when seeking to advance their substantive values in property, whatever those values may be.

Ben Barros

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Holdouts and Personal Values

Eduardo Penalver highlights a great story about a woman in Seattle who refused to sell out to private developers.  The story features a great holdout photo of the woman's home surrounded by new development.

Ben Barros

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Who Owns Thomas Jefferson's Grave?

This ranks right up there with "Who's Buried in Grants Tomb?"  In light of the controversy over access to Jefferson's grave, which I've been following and gotten involved in a little bit, I now have a question
that's worthy of a final examination in wills.  First, some background on this.

In a post over at Oxford University Press' blog about access to Jefferson's grave, I wrote, following a New York Times story, that the cemetery is owned by some of Jefferson's heirs.  In a comment to the post, the current president of the Monticello Association (which manages the cemetery) says, the cemetery's owned by all of Jefferson's descendants.  ("The Graveyard is not owned by SOME of the descendants of Thomas Jefferson, but by ALL of the descendants of Thomas Jefferson.")  The truth of that turns on a couple of things, apparently, including whether the issue of Sally Hemings are also the issue of Thomas Jefferson.

And it also turns on a reservation of the graveyard way back in the 1830s when Monticello was sold out  by Jefferson's family.  So let's look a little more deeply at this puzzle.  Apparently the last recorded reference to the cemetery in a deed was when Monticello was sold in the 1830s.  At that point, the family of Thomas Jefferson Randolph reserved the cemetery:  "The parties reserve to themselves the family graveyard with free access to the same."  Nice!  This is an explicit reservation of what is an implied right of access in Virginia and a bunch of other states, too.  There is also an explicit reservation of the title to the cemetery.

The Monticello Association reports on their website that Thomas Jefferson Randolph's mother's will in 1836 left the residuary of her property to Thomas Jefferson Randolph and that Randolph's will failed to dispose of the property (so it presumably went, through partial intestatacy, to Randolph's heirs).  As the Monticello Association website points out:

It was under this last clause that the graveyard became the property of Thomas Jefferson Randolph when his mother died on October 10, 1836. ...

Thomas Jefferson Randolph died October 8, 1875, and was buried in the little plot laid out a hundred and two years before, and where there now existed nearly fifty graves. In his will, dated January 24, 1875, he made a number of specific bequests of silver, portraits, and certain items which had belonged to Mr. Jefferson, and then he provided carefully and explicitly for his unmarried and widowed daughters in his bequest to them of Edgehill and of its adjoining lands. However, he made no mention of the Monticello graveyard, which he had inherited from his mother. Thus it became the undivided property of all heirs, and so it remains. This divided ownership contributed in part to the difficulties faced by the family within a few years, when Congress responded to the increasing public concern about the deplorable conditions at Monticello.

One question here, which will be easily answered when someone looks at T.J. Randolph's will: wasn't there a residuary clause?  The Monticello Association website implies not (or if there was that it distributed the property to all his heirs, by which I think they them mean his issue).  If there was no residuary clause, then I guess that the cemetery descended to T.J. Randolph's issue and now, many generations later, they own in varying shares the property.  (This is implied in this 1882 New York Times story as well.)

The Monticello Association--a 501(c)(3) association--is currently managing the gravesite.  So I'm curious what their relationship to the cemetery is.  Have all the heirs given them the authority to manage the graveyard?  I'm guessing that there may be a deed to the Jefferson descendants somewhere and that the Association is the representative of the descendants.  But what happens when other putative descendants (like the issue of Jefferson and Hemings) appear?  They wouldn't take as heirs of T.J. Randolph (and presumably wouldn't have the right to be buried in the cemetery); but they still have the right to visit the cemetery under the Virginia cemetery access statute.  Makes for some mighty interesting questions in cemetery law.

But then a google led to this story from the New York Times in 1911, which alludes to another grant.

The public domain image of Thomas Jefferson's grave is from wikipedia.

Alfred Brophy

The Governance of Gramercy Park

This morning's New York Times brings a story about the governance of Gramercy Park--which is so strict that few people use it.  Shades of Poe's The Domain of Arnheim?!  Ah, what would Thomas Jefferson have to say about this (or here)?

The public domain image of Gramercy Park is from our friends at wikipedia.

Alfred Brophy

GELPI Takings Conference Save-The-Date

I recently received this notice from GELPI:

On November 6-7, 2008, the Georgetown Environmental Law & Policy Institute at Georgetown University Law Center and Stanford Law School’s Environmental and Natural Resources Law & Policy Program will host the 11th Annual Conference on Litigating Takings and Related Legal Challenges to Land Use and Environmental Regulation.

The conference, to be held at Stanford Law School in the San Francisco Bay area, will examine how the Takings Clause and related legal doctrines may undermine the public’s ability to address emerging environmental, public health, and growth management challenges.  A particular focus of this year’s conference will be the potential takings implications of public policy initiatives designed to mitigate and adapt to global warming.  The conference will also address recent legal developments in takings law and related fields, including the latest legal and policy fall out from the Supreme Court’s landmark decisions in Lingle v. Chevron USA and Kelo v. City of New London.  Another featured topic will be future prospects for property rights ballot measures along the lines of Propositions 98 and 99 in California and other states.

Conference faculty will include a mix of leading academic scholars and expert practitioners.  The proceedings of the conference will be published in the Stanford Environmental Law Journal.

Ben Barros

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New PLF Blog on The Endangered Species Act

This is outside of my main area of interest, but those of you interested in environmental issues might want to check out the Pacific Legal Foundation's new blog on the ESA.  The PLF folks, of course, have a clear agenda, but their analysis of property-related issues is often interesting and cogent.

Ben Barros

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Epstein on Kelo

Richard A. Epstein (Chicago) has posted Public Use in a Post-Kelo World on SSRN.  Here's the abstract:

The aftermath of Kelo gives rise to urgent land use issues, both theoretical and historical. On the former, I argue that the analysts should be aware of the close and positive connection between restrictive land use policies on the one hand and a willingness to condemn parcels for private development on the other. The inability to overcome local opposition with private development forces developers to get in essence, pre-acquisition approval through public condemnation. One way, therefore, to ease the pressure on public use is to retreat from aggressive land use regulation to a scheme that more closely approximates that of the common law rules on nuisance and restrictive covenants, which will be hard to achieve since local systems of voting give little weight to the interest of potential buyers who live outside the governance area. Historically, this opportunity was lost when the United States Supreme Court in Berman v. Parker distanced itself from the thoughtful decision of Judge Prettyman below in Schneider v. District of Columbia, which sought to cabin in the ends for which the eminent domain power could be used, even if it gave too much deference to local governments on any means/ends connections.

Epstein graciously refers to my essay on the Berman and Midkiff conference notes, which discussed Judge Prettyman's opinion in Schneider.  In this essay, Epstein develops an interesting substantive defense of Prettyman's position.  Given the author, obviously a must-read for anyone interested in public use issues.

Ben Barros

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Penalver on the Ambiguities of Gentrification

Over at Prawfs, Eduardo Penalver has a great post on gentrification.  Eduardo's post is reacting to a story from the NY Times on gentrification in Harlem.

Ben Barros

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Landlord Conversion of 20-unit Building Into Private Residence

Over at the Co-op, Frank Pasquale has an interesting post on a NYC dispute featuring a landlord who is trying to convert a 20-unit building into a private residence.

Ben Barros

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