PropertyProf Blog

Info on GELPI Takings Conference

This year's GELPI Takings Conference will be held at Stanford Law School on November 6-7.  The brochure is now available online.

Ben Barros

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Harding on Perpetual Property

Sarah Harding (Chicago Kent) has posted Perpetual Property on SSRN.  Here's the abstract:

This paper explores the emergence of perpetual property in a number of discrete areas of property law: the longevity of servitudes in historic and environmental preservation, the ever growing time span of intellectual property rights, the disappearance of the rules against perpetual interests, and the temporally unlimited reach of cultural property claims. While the demise of temporal limitations is itself worthy of recognition and will be the focus of a significant part of this paper, my primary interest is whether these changes tell us something about shifting cultural attitudes to the institution of private property. If it is the case, as a number of prominent sociologists have argued, that an exploration of social attitudes toward time is indispensable to an understanding of our current cultural conditions then exploring temporal limitations in property law will presumably help us better understand what Professor Radin has called the cultural commitments of property. This topic is particularly compelling when one considers that the emergence of perpetual property, with its assumption of stability and permanence, has occurred at a time when speed, flexibility and impermanence are dominant features of our current social conditions. The prevailing conditions in society, even a single generation into the future, are likely to be so different from today that long-term control of property seems anachronistic and paradoxical. So why is it that in an era of rapid technological change we are more willing to tolerate perpetual property interests?

Ben Barros

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Kent on Constitutional Property

Michael B. Kent Jr. (John Marshall Atlanta) has posted From 'Preferred Position' to 'Poor Relation': History, Wilkie v. Robbins, and the Status of Property Rights Under the Takings Clause on SSRN.  Here's the abstract:

This article discusses the status of constitutional property rights in light of the Supreme Court's 2007 decision in Wilkie v. Robbins. In Wilkie, the Court rejected a property owner's claim that he had been retaliated against by federal officials for exercising his right to resist an uncompensated taking of his property (notwithstanding the Court's prior precedents recognizing similar claims in the context of other constitutional rights).

This article suggests that Wilkie reveals an attitude among the Justices that property rights are less worthy of judicial protection than other rights guaranteed by the Constitution. Additionally, the article contrasts this attitude with that of the early American legal culture, which gave property rights the preferred position among constitutional liberties and viewed the judiciary as a bulwark against the encroachment of those rights by the political branches of government. The article concludes by noting the importance this change in judicial attitude may have for constitutional rights generally. If rights as central to early constitutional understandings as those relating to property can be relegated based on shifting judicial preferences, then other rights would appear equally vulnerable.

Ben Barros

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Lehavi on Globalization of Land Laws

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Universal Law of the Land on SSRN.  Here's the abstract:

Are we witnessing the gradual globalization of national land laws, which have traditionally been considered to be the paradigm of legal idiosyncrasy, by virtue of their reflecting place-specific society, culture, and politics? This Article offers an innovative analysis of the conflicting forces at work in this legal field, basing itself on an historical, comparative, and theoretical study of the structures and strictures of domestic land laws and of current cross-border phenomena that dramatically affect national land systems.

The central thesis of this Article is that, irrespective of our basic, normative viewpoint regarding the opening up of domestic land laws to the forces of "globalization," we must come to terms with the particularly difficult institutional and jurisprudential constraints that are involved in undermining the local basis of land laws. Thus, if we wish to systematically succeed in intensifying cross-border land law rules, we need to construct more comprehensive supra-national institutions, prevent normative over-fragmentation within each legal system, and pay close attention to local-specific interplays between law, politics, economics, and culture.

Ben Barros

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Daniels on "Revitalizing Zion: Nineteenth-Century Mormonism and Today's Urban Sprawl"

This is a topic about which I know much less that I ought to--and a mighty interesting paper, as well.  Professor Brigham Daniels of the University of Houston Law Center has just posted "Revitalizing Zion: Nineteenth-Century Mormonism and Today's Urban Sprawl", which is forthcoming in the Journal of Land, Resources & Environmental Law.  His abstract reads:

In the nineteenth century, Mormons planned and built hundreds of communities throughout the West. Time, growth, and redevelopment have begun to erase this history. Like towns and cities across the country, places first settled by Mormons now grapple with urban sprawl's challenges. This Article explores whether the Mormons bold planning effort that permeated the frontier of the Old West of the nineteenth century has any lessons to offer those grappling with the planning challenges facing the New West of today.

I suppose there might be some pretty cool comparisons with the historical literature on the planning of Philadelphia.  As I've thought when reading Nate Oman's work on the nineteenth-century ecclesiastical courts of the Latter Day Saints, the LDS and Quakers offer some opportunities for comparison of American religious and legal history.  Download Daniels' paper for free from ssrn here.

Alfred Brophy