PropertyProf Blog

Somin on Constitutional Property Rights

Ilya Somin (George Mason) has posted Taking Property Rights Seriously? The Supreme Court and the 'Poor Relation' of Constitutional Law on SSRN.  Here's the abstract:

Over the last twenty-five years, the Supreme Court has expanded protection for constitutional property rights. After decades of neglect, the Court has begun to take property rights seriously. At the same time, however, protection for property rights still falls far short of that enjoyed by most other individual rights. In case after case, the Court has expressed support for property rights, but stopped short of providing them with more than minimal protection. Despite the Court's own rhetoric to the contrary, property rights are still the "poor relation" of the Constitution.

Part I of this article analyzes the Court's recent property rights jurisprudence. It particularly focuses on the Court's decisions interpreting the Takings Clause of the Fifth Amendment. I examine key decisions on public use, regulatory takings, remedies for takings clause violations, and access to federal courts for citizens who claim that their property rights have been violated. In most of these fields, recent court decisions have modestly expanded protection for property owners. However, the Court's decisions in each area fall far short of giving property rights the same degree of protection as that extended to most other individual rights.

Part II considers some of the standard rationales for denying judicial protection for property rights equal to that enjoyed by other constitutional rights. It addresses claims that property rights deserve little or no protection because they are already protected by the political process, because the courts lack expertise on economic issues, because judicial protection would benefit the rich at the expense of the poor, because the Courts should not enforce supposedly arbitrary common law property baselines, and because judicial protection for property rights might harm the environment. I suggest that each of these concerns is overstated, and that many apply with equal or greater force to the enforcement of other constitutional rights. Moreover, expanded judicial protection for property rights might actually benefit the poor more than the wealthy and may in some important cases promote environmental protection rather than diminish it.

Finally, Part III briefly considers the future of constitutional property rights. In the long run, judicial protection for property rights can only be effective if it is embraced by jurists from a broad portion of the political spectrum. Property rights probably will not get much more judicial solicitude than they enjoy today if support for them remains confined to judicial conservatives and libertarians. Outside the Court, some liberal jurists and activists have shown an increasing willingness to reconsider traditional post-New Deal hostility to property rights. The strong left of center reaction against the Court's decision in Kelo v. City of New London may point the way forward to cross-ideological cooperation on these issues.

Ben Barros

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Higgins on Legal Impact of Sea Level Rise

Megan E. Higgins (Roger Williams) has posted Sea Level Rise Impacts on Beaches and Coastal Property on SSRN.  Here's the abstract:

The causes of sea level rise; the impacts to beaches and coastal property; state responses to changes in sea level; the legal implications of existing sea level rise policies; outstanding legal issues; and potential solutions will be addressed.

Some coastal states have been proactive in anticipating sea level rise while others are now drafting policies that incorporate predicted changes. Litigation is more common as regulatory and resilient responses call into question Fifth Amendment takings claims. Unanswered legal questions remain as sea levels rise and climate continues to change; population of coastal communities grows; beaches are lost; and coastal properties infringe on public access as the shoreline shifts inland. Are rolling easements effective when homeowners are required to retreat based on setbacks determined by the mean high tide line? What is the effectiveness of erosion rate setbacks versus renourishment? Should there be a standard setback line (e.g., vegetation line)? What are the implications for property rights advocates? Who has the burden of proof? What constitutes a public nuisance regarding encroachment in dunes/beachfront area?

There are a number of potential solutions for addressing sea level rise: create setbacks; rolling easements; prevent armoring; financial inducements to move homes; encouraging elevation or employing new construction techniques; and purchasing federal flood and wind insurance. However, when property lines along the coast are determined by the ocean, something that is far beyond the control of the respective state's courts, the future of sea level rise litigation remains uncertain.

Ben Barros

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Smith from Yale to Harvard

Brian Leiter reports that Henry Smith is moving from Yale to Harvard.

Ben Barros

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Fernandez on Pierson v. Post

Angela Fernandez (U. Toronto) has posted The Lost Record of Pierson v. Post, the Famous Fox Case on SSRN.  Here's the abstract:

Pierson v. Post, the famous fox case, has been reproduced in countless law school casebooks and written about endlessly in law review articles. A surreal air has hung around the case, in large part because scholars interested in it could access little more than what appeared in the reported appellate case at the New York Supreme Court in 1805, the rarefied "high law" in the case. Any documents setting out what happened at the lower court level were presumed lost. The judgment roll has now been found and is being made available to scholars for the first time. This article is a report on the discovery of that lost record and an introduction to the record highlighting the new information it gives us about the case. This is the "low law" we knew nothing about, specifically, the account of Post's jury trial before a Justice of the Peace, the amount of money he was awarded, and the grounds of Pierson's appeal. The new record does not answer all the questions we might have about this famous case. However, it provides much in the way of important new information that was previously unavailable to those with an interest in the case.

Ben Barros

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Historic Preservation of Brutalist Architecture, With a Bonus RLUIPA Angle!

NPR has a great story about controversies arising out of the landmarking of a D.C. church that is an important example of Brutalist architecture.  An excerpt:

In Washington, D.C., about two blocks from the White House, there's a Christian Science church that looks more like a concrete fortress than a house of worship. The Third Church of Christ, Scientist — or the Third Church — is a hulking mass of raw concrete. There's one window, no steeple, and its bells are suspended from a slab of concrete that juts out from the side. . . .

The building was designed by Araldo Cossutta, who worked with I.M. Pei. It is a classic example of Brutalism, which was popular in the 1950s and 1960s but fell out of favor in the 1970s.

The concrete was poured on the spot, leaving a 60-foot-tall bunker that is hard to heat and harder to cool.

With eight sides of nearly identical concrete and a tucked-away entrance, it's also nearly impossible to find your way inside. . . .

In 1991 — unknown to the church's members — a group of preservationists applied to have the Third Church designated a historic landmark. From that moment, the congregation couldn't touch the building. Last year, the city made it an official landmark, and now the Third Church is suing to have the status removed.

Kirkpatrick says the restrictions infringe on their freedom of religion.

"Nothing expresses a church's religious exercise more than its architecture. And this architecture does not express our theology and our exercise. Brutalism is not our religious expression," he says.

Ben Barros

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Barros on Toward A Model Law of Estates and Future Interests

I've posted my most recent article, Toward a Model Law of Estates and Future Interests, on SSRN.  Here's the abstract:

The American law of estates and future interests is tremendously complex. This complexity is unjustifiable because it serves no modern purpose. Many of the distinctions between types of interests in the current system of ownership are vestiges of ancient English feudal concepts and owe their place in the law solely to historical accident. This article develops a proposed model law designed to simplify and modernize the basic property ownership system. The proposals made here differ substantially from prior suggestions for legislative reform, and reflect issues of enactability and retroactivity that previously have been neglected in the literature. The article both builds on and critiques the recently-released preliminary draft of Division VII of the Restatement Third, Property (Wills and Other Donative Transfers), and explains why a model law will be more effective than a Restatement in achieving modernization and reform of the estates and future interests system.

Comments of any sort would be welcome.

Ben Barros

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Lovett on Comparisons Between Scottish and American Land Use

John A. Lovett (Loyola New Orleans) has posted Meditations on Strathclyde: Controlling Private Land use Restrictions at the Crossroads of Legal Systems on SSRN.  Here's the abstract:

This article presents a comparative study of a pivotal case decided by the Lands Tribunal of Scotland, Strathclyde Joint Police Board v. The Elderslie Estates Ltd. The decision exemplifies how Scotland, one of the world's leading mixed jurisdictions, addresses several fundamental property law issues. Should landowners be allowed to impose restrictions on the use of land that bind future owners in perpetuity? Should courts have any power to modify or terminate those land use restrictions if the passage of time appears to undermine their initial purpose and utility? Does the application of the European Convention on Human Rights change how a court must protect fundamental property rights? This comparative case study sheds light on how Scotland has answered all these questions, reflects on the costs and benefits of its solutions, and contrasts the Scottish approach with typical approaches under American law. The Lands Tribunal's decision, the article also argues, demonstrates a powerful communitarian conception of property in Scottish law, one that has continued to surface even after the formal abolition of Scottish feudalism in 2004 and that differs substantially from the market based conception of property reigning in the United States today.

Ben Barros

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Chang on Takings Compensation

Yun-Chien Chang (NYU) has posted A Framework of Takings Compensation Assessment on SSRN.  Here's the abstract:

The mainstream literature discusses only the design that the government assesses property value for takings compensation ex post. A few papers propose to let condemnees self-assess property value ex ante. Two other alternatives - ex ante government assessment and ex post self-assessment - have been neglected. Furthermore, previous papers usually assume that assessments are accurate, not taking into account the facts that the takings compensation condemnees receive may not equal the amount of compensation the law intends to award. The literature often assumes that assessing is costless, failing to recognize that the actual high assessment costs may render undesirable an otherwise efficient standard for takings compensation.

In this Article, I propose a framework of four prototype assessment methods for appraising takings compensation, based on who assesses and at what time. I use assessment costs and assessment accuracy to evaluate the merits of the four assessment methods. I find that, theoretically speaking, the scholarly-proposed models and the currently-implemented regimes are unlikely to produce accurate assessments, no matter which assessment method they use. These models or regimes are also not as low-cost as claimed.

Ben Barros

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I Love My Job

First day of Property today.  Pierson v. Post, Popov v. Hayashi, and Armory v. Delamirie in a 2-hour block.  This is an awesome job.  Now if I could only get someone to grade my exams . . .

Ben Barros

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Mossoff on Patents as Property

Adam Mossoff (George Mason) has posted Patents as Property: Conceptualizing the Exclusive Right(s) in Patent Law on SSRN.  Here's the abstract:

The conventional wisdom is that the definition of patents as property has been long settled - patents secure only a right to exclude. In exploring the intellectual history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, Congress and courts defined a patent in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding doctrines in the American patent system, such as the conveyance default rules now known as patent exhaustion doctrine. Significantly, the Supreme Court has invoked such historical doctrine in reversing the Court of Appeals for the Federal Circuit in its many recent patent law decisions.

For this reason, the conceptual break between modern and historical patent doctrine is not simply a matter of philosophical inquiry. Today, scholars and courts believe that patents must secure only a right to exclude as a matter of logical necessity, dismissing the historical statutes and case law as confusion or dicta. Yet, they do not realize that their definition of patents as property is a uniquely modern conception, which follows directly from the legal realists' property theory in land. In identifying this intellectual history for the first time, this Article reveals how the legal realists' theoretical work concerning real property has influenced twentieth-century patent doctrine, and how this may be an under-appreciated factor contributing to the increasingly tumultuous debates over patent doctrine.

Ben Barros

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Fort on Laches and Native American Land Title

Kathryn Fort (Michigan State) has posted The New Laches: Creating Title Where None Existed on SSRN.  Here's the abstract:

Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will call the "new laches." This new defense, so far used successfully in Indian land cases in New York state and unsuccessfully elsewhere, has been so broadly construed by the Second Circuit that, if this view is adopted nationwide, it could apply to any treaty-based claim brought by Indians or Indian tribes.

Ben Barros

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Ellickson on Government Mixed-Income Housing Subsidies

Robert C. Ellickson (Yale) has posted The Mediocrity of Government Subsidies to Mixed-Income Housing Projects on SSRN.  Here's the abstract:

Since the 1970s a new vehicle for the provision of housing assistance--the mixed-income, or inclusionary, project - has flowered in the United States. In a community of this sort, the developer and its government benefactors designate a fraction of the dwelling units, typically between 10 and 25 percent, as targets for the delivery of aid. Eligible households who successively occupy these particular units pay below-market rents, while the occupants of the other units do not. This article situates this innovation within the broader history of U.S. housing assistance policy and evaluates its merits. The central conclusion is that the mixed-income project approach, while superior to the traditional public-housing model, is in almost all contexts distinctly inferior to the provision of portable housing vouchers to needy tenants. Although prior commentators have also touted the voucher approach, the article enriches their analyses by addressing more fully the social consequences of various housing policies that might be used to economically integrate neighborhoods and buildings.

Ben Barros

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Carpenter, Katyal and Riley In Defense of Property

Kristen A. Carpenter (Denver); Sonia Katyal (Fordham) and Angela Riley (UCLA) have posted In Defense of Property on SSRN.  Here's the abstract:

This Article advances a comprehensive theory to explain and defend the emergence of indigenous cultural property claims. In doing so, it offers a vigorous response to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous culture and ideas. In our view, cultural property critiques arise largely because of the absence of a comprehensive and countervailing theory of indigenous cultural property. To remedy this absence, this Article articulates a robust theory of indigenous property that challenges the individual rights paradigm animating current property law. Specifically, this piece makes two broad contributions to existing property theory. First, it draws on but departs significantly from Margaret Jane Radin's groundbreaking work linking property and 'personhood,' and defends cultural property claims, in contrast, within a paradigm of 'peoplehood.' Second, this piece posits that, whereas individual rights are overwhelmingly advanced by property law's dominant ownership model, the interests of peoples, particularly indigenous peoples, are more appropriately and powerfully effectuated through a theory of property characterized most aptly by stewardship.

As this Article demonstrates, our stewardship paradigm suggests a theory of property that goes far beyond the cultural property context, with implications for property law generally. By introducing a fundamental paradigm shift that locates the metaphorical bundle of rights within non-owners as well as owners, we highlight non-owners' duties and rights to tangible and intangible goods, even in the absence of title or possession. This Article draws on a wealth of literature from the corporate, environmental, and indigenous contexts to introduce an innovative framework for rethinking ownership altogether. Ultimately, our stewardship theory of property makes a significant contribution to the field, filling an existing void in property theory and adding a much-needed perspective to the ongoing debate over cultural property protections.

Ben Barros

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And More Burial News--and Building--in Kauai

Thanks to Carl Christensen for this article, "Building may continue atop burials,"from the Honolulu Star Bulletin: 

California businessman Joseph Brescia will be able to continue building his home at Naue Point, at least for now, a circuit judge ruled yesterday.

A hearing on a request for a preliminary injunction, filed by the Native Hawaiian Legal Corp. to stop construction of the house, was not finished after about six hours of testimony in court yesterday, and has been continued until Sept. 3.

But an oral motion to keep Brescia from continuing the project until September was denied, Judge Kathleen Watanabe said, because the concrete footings for the home have already been poured.

Planet Kauai blog has more details, including discussion of an administrative rule apparently requiring builders to mitigate damage to grave sites.

Ah, preliminary injunctions--a favorite topic of mine and a key piece of aloha jurisprudence.  Sounds like the makin's of a great class discussion.

ALB

Stone Age Grave Yard

The New York Times  has a story on stone age graves found in the Sahara (from the Sahara's "green period").  Very exciting--now what the law, if any, of cemetery access was is unknown and unknowable.  But there were some pretty elaborate funeral practices.  As the article says:

In its first comprehensive report, published Thursday, the team described finding about 200 graves belonging to two successive populations. Some burials were accompanied by pottery and ivory ornaments. A girl was buried wearing a bracelet carved from a hippo tusk. A man was seated on the carapace of a turtle.

The most poignant scene was the triple burial of a petite woman lying on her side, facing two young children. The slender arms of the children reached out to the woman in an everlasting embrace. Pollen indicated that flowers had decorated the grave.

ALB

Pennsylvania's Curative Amendment

The Center For Public Integrity's website has a good article on Pennsyvlania's odd-but-interesting curative challenge process.  An excerpt:

Land planners, township government officials, and the developer’s attorneys say the villain in the battle over Buckingham Springs is the same — the curative amendment, a zoning challenge process unique to Pennsylvania, which both sides say benefits the other. Yet despite its problems, land use battles brought under the curative amendment process have defined development in Bucks County and other areas where rural meets urban.

In Pennsylvania, municipalities are responsible for land-use planning, but guidelines are laid out in the state’s Municipalities Planning Code. Case law interpreting the statute has required local governments to provide for all types of uses and to accept its “fair share” of development.

Landowners can challenge zoning by filing cases directly with a township board of supervisors, seeking a “curative” amendment to the zoning regulations, a move that often sets a costly battle in motion that pits a developer’s legal budget against township defense dollars. If a board of supervisors rules against a challenge — and they almost always do — developers and or landowners can appeal to the courts.

The “curative challenge” is a check on a community’s natural tendency to insulate itself from unwanted development, including low-income and high-density housing, said Kurt Paulsen, a land-use expert at the University of Wisconsin who taught formerly at Temple University in Philadelphia.

The challenge balances the rights of a locality to determine its future and the needs of the state and outside community as a whole, Paulsen said. “That is the fundamental question: Is it correct to say that municipalities should determine their own destinies? On a certain level it seems fundamental, and you say, ‘Yes.’ On another you say: ‘Wait a minute. They should also maximize opportunities for future residents.’”

Ben Barros

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They're having trouble giving this property away

A bank in Detroit asked only $1 for a house. But it's worse than that--the bank agreed to pay closing costs, a water bill, and back taxes.  It ended up costing them $10,000 to get rid of the property.  Sounds like the makin's of a pretty interesting class discussion on the costs of ownership.

ALB

Brophy on Antebellum Landscape Art and Property Law

Our own Alfred L. Brophy (UNC) has posted Property and Progress: Antebellum Landscape Art and Property Law on SSRN.  Al has posted on this subject here before.  Here's the abstract:

Landscape art in the antebellum era (the period before the American Civil War, 1861-1865), often depicts the role of humans on the landscape. Humans appear as hunters, settlers, and travelers and human structures appear as well, from rude paths, cabins, mills, bridges, and canals to railroads and telegraph wires. Those images parallel cases, treatises, orations, essays, and fictional literature that discuss property's role in fostering economic and moral development. The images also parallel developments in property doctrine, particularly related to adverse possession, mistaken improvers, nuisance, and eminent domain.

Some of the conflicts in property rights that gripped antebellum thought also appear in paintings, including ambivalence about progress, concern over development of land, and fear of the excesses of commerce. The concerns about wealth, as well as the concerns about the lack of control through law, appear at various points. Other paintings celebrate intellectual, moral, technological, and economic progress. The paintings thus remind us of how antebellum Americans understood property, as they struggled with the changes in the role of property from protection of individual autonomy of the eighteenth century to the promotion of economic growth in the nineteenth century.

Ben Barros

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Penalver on Land Virtues

Eduardo M. Penalver (Cornell) has posted Land Virtues on SSRN.  Here's the abstract:

This article has two goals. First, I explore some of the descriptive and normative shortcomings of traditional law and economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land - its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it - undermines the notion that owners will focus on a single value, such as wealth, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined impact of the durability of land uses and the finite quantity of land, calls into question the normative assessment that owners whose behavior is guided by a unitary measure like market value are using their land wisely, or at least more wisely than other modes of decision-making might hope to accomplish. The shortcomings of traditional law and economics theories of land use point toward the benefits of a pluralist theory of property based on the Aristotelian tradition of virtue ethics. Setting forth the broad outlines of such a theory as it applies to the law of land use is the second goal of this article. Virtue theory, I will argue, is capable of incorporating the valuable insights that have made economic analysis so appealing to land use theorists without distorting our moral vision or treating economic consequences as the only considerations that ought to matter.

Ben Barros

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Brigham-Kanner Conference at William & Mary

I just got the save-the-date card for this year's Brigham-Kanner Property Rights Conference, which will be held at William & Mary on October 17-18, 2008.  Robert Ellickson will be awarded the Brigham-Kanner prize.  I'll post more info when it becomes available online.

UPDATE:  I have now been pointed to the conference brochure.  Looks like a great program.

Ben Barros

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