PropertyProf Blog

McLaughlin and Weeks on Conservation Easements

Nancy A. McLaughlin (Utah) and W. William Weeks (Indiana) have posted In Defense of Conservation Easements: A Response to 'The End of Perpetuity' on SSRN.  Here's the abstract:

This article critiques the arguments offered in favor of treating donated conservation easements as unrestricted charitable gifts (that is, as fungible or liquid assets in the hands of their government or land trust holders). It also discusses the practical and potential constitutional problems associated with proposals to change state law to permit government entities and land trusts to sell, trade, release, extinguish or otherwise terminate the conservation easements they hold outside of judicial cy pres proceedings.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Sagalyn on Kelo and Public Opinion

Lynne B. Sagalyn (Columbia Business School) has posted Positioning Politics: Kelo, Eminent Domain, and the Press on SSRN.  Here's the abstract:

This paper explores the politics of the Kelo backlash by analyzing the content of public opinion published in editorials, op-eds, editorial cartoons, and letters-to-the editor on the pages of the nation's daily papers. Work by Nader, Diamond, and Patton (2006) analyzes public opinion from five polls conducted in fall 2005, after the decision came down. My work analyzes how press editors, elected officials, grass-roots organizations, organized constituencies, and individuals positioned their opinions in response to the controversial ruling, and what these opinions tell us about the character of the backlash. In a political minefield such as Kelo, where the legal and policy - if not emotional - issues are complex, what role does the press play in framing the issues? What coalitions are evident in the way various interests frame the issue? And how might such framing shape the politics of the many efforts to reform government's powers of eminent domain?

To address these issues, I constructed a database on Kelo press commentary (from 272 newspapers) based on search protocols around three newsworthy event episodes in the case: the U.S. Supreme Court's September 2004 decision to accept the case, oral arguments before the justices in February 2005, and the announcement of its ruling in June 2005. The content analysis of headlines, editorials and editorial cartoons revealed the political power of framing. Three salient messages characterized the reporting on Kelo in the month following the Court's ruling. First, the scope of government power has been broadened, bolstered, expanded, extended, strengthened, or widened. Second, homeowners have been shown the door, they are vulnerable, or their homes are up for grabs by government. Third, elected politicians are concerned and ready to take up and fight for property rights. The reporting was more interpretation than fact and relied heavily on inflammatory hyperbole and provocation. Overwhelmingly and unsurprisingly, the editorials voiced dissent with the Court's ruling, which mirrored public opinion data, but as with the reporting, they relied heavily upon a series of myths about Kelo and eminent domain. These myths became powerful framing devices, which have made eminent domain a touchstone social-policy battle with a life of its own. And, as evident in the editorial cartoons, the two previously esoteric Latin words have become household familiar, a political metaphor for excessive use of government power.

Ben Barros

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Colburn on Constitutional Property and Future Generations

Jamison E. Colburn (Penn State) has posted Splitting the Atom of Property: Rights Experimentalism as Obligation to Future Generations on SSRN.  Here's the abstract:

Property is surely among the U.S. Constitution's principal objects of protection. As a right, though, property is jurisdictionally complex. The underlying law defining property can always change, making the constitutional protection of property inherently indexical, like the words "here" and "now." Not surprisingly, the factors and tests the Supreme Court employed throughout the twentieth century not only failed to capture an essence of constitutional property, they failed to guide legal actors on what should be protected to owners against official action. Without some broader unity of purpose, however, the interpretive diversity stemming from this lack of guidance is going to waste. It is depriving owners of their security but is not contributing to any deeper, more meaningful consensus on property as an institution. If we are serious about leaving future generations their due, this ought to change and change quickly. Ultimately, I argue that constitutional property, perhaps more than other basic rights, demonstrates the utility of viewing rights as placeholders-social expressions of confidence in the right holder's judgment within the confines of their right(s) - but not as trumps over social coordination or planning. A more probabilistic and institutionally informed approach to the content of constitutional property could, I argue, help future generations avoid the traps we now know exist in rights adjudication. To that end, I suggest some (modest) methodological improvements in judicial opinion writing as a discrete domain of practical reason.

Ben Barros

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LaCroix on Land Use and Climate Change

Catherine J. LaCroix (Case Western) has posted Land Use and Climate Change: Is it Time for a National Land Use Policy? on SSRN.  Here's the abstract:

During the past few years it has become apparent that the challenge of climate change requires us to rethink fundamental aspects of the way we live. Already we have focused on the power industry, the way we fuel our cars, and the extent to which we may conserve power through green buildings and more efficient lighting. This opinion piece asks us to consider another step in the process: the development of a national land use policy to restrict sprawl and encourage more energy-efficient land use patterns. Traditional land use policy is based on Euclidean zoning that separates land uses and encourages sprawl. Land use regulation is fragmented in the hands of thousands of local governments. The American Planning Association has argued that the division of metropolitan areas into individual autonomous regulatory kingdoms defeats rational planning and leads to sprawl, traffic congestion, and environmental degradation. Once land is developed along low-density suburban patterns, reliance on mass transportation is doomed and auto dependency is guaranteed. The paper suggests that we consider development of a national land use policy that sets goals or perhaps standards and guidelines for smart growth programs nationwide, with federal funding for states that choose to abide by these prescriptions.

Ben Barros

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Parchomovsky and Stein on Reconceptualizing Trespass

Gideon Parchomovsky (U. Penn) and Alex Stein (Yale and Cardozo) have posted Reconceptualizing Trespass on SSRN.  Here's the abstract:

This Essay addresses an anomaly in trespass law. Trespass law is generally understood as the paradigmatic example of property-rule protection: an owner can obtain an injunction against the trespasser and have him removed from her land. The property-rule protection enjoyed by the owner protects her right to exclude others and to set the price for the use of her property. However, the property-rule protection only exists ex ante: it avails only against imminent or ongoing trespasses. Ex post, after a trespass ends, the owner can only recover compensation measured by the market value of the unauthorized use, i.e., the going rent. This liability-rule compensation dilutes the ex ante property-rule protection of ownership. Effectively, it grants trespassers a call option on others' property, creating a mismatch between rights and remedies.

To remedy this mismatch, we introduce the concept of "propertized compensation"-a damage measure that sets compensation equal to the owner's pre-trespass asking price. We contend that propertized compensation should become the primary remedial option in trespass cases. The use of this measure will reinstate the owner's position as a price maker, entitling her to recover the amount that she would have agreed to accept ex ante in a voluntary exchange. We further argue that owners who cannot produce evidence regarding their pre-trespass asking price (as well as owners who prefer not to seek propertized compensation) should be entitled to seek disgorgement of the trespasser's profits. Finally, we claim, contra the extant regime, that market-value compensation should only be used in the exceptional cases of trespass by necessity, media trespass, and good faith encroachments. In all other cases, it should only be awarded if the owners specifically ask for it.

Ben Barros

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Serkin and Tebbe on RLUIPA and Eminent Domain

Christopher Serkin and Nelson Tebbe (Brooklyn) have posted Condemning Religion: The Political Economy of RLUIPA on SSRN.  Here's the abstract:

Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply strict scrutiny to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act's extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should not give religious assemblies any extraordinary ability to resist condemnation. We offer two principal reasons for this proposal. First, the political economy surrounding condemnation is markedly different from that of zoning, so that broadening the law's protections beyond zoning to cover outright takings would be unnecessary and ineffective. Second, the costs of presumptively exempting congregations from condemnation are likely to be far higher than the costs of applying strict scrutiny to zoning. In conclusion, we identify an important implication of our argument for the law's core zoning provision - namely, our proposal invites local governments to circumvent RLUIPA by simply condemning religious property that they find difficult to zone because of the Act. On the one hand, this gives local governments a needed safety valve while, on the other hand, requiring them to pay just compensation to religious groups. Our proposal therefore suggests a powerful compromise.

Ben Barros

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Blackman on Class Actions and Eminent Domain

Josh Blackman (George Mason) has posted Taking the Home of a Class of One and the Path of Least Resistance: How the Equal Protection Clause and Village of Willowbrook V. Olech Can Protect Homeowners from Eminent Domain Abuse on SSRN.  Here's the abstract:

In the landmark case of Kelo v. City of New London, the Supreme Court held that the government can use the power of eminent domain to take a person's home, even if the purpose is for private development that can perhaps improve the community's economy. This case dealt a deathblow to property rights, and made challenging eminent domain takings for private development under the Fifth Amendment a daunting, if not impossible task. Because eminent domain takings disproportionately fall on poor, uneducated, minorities who lack access to the political process, Kelo greatly impacted the ability of the weakest parts of society to keep their own homes free from the path of the bulldozer. In this article, I propose a novel alternative avenue to challenge these takings.

In 2000, five years before Kelo, the Supreme Court held in Village of Willowbrook v. Olech that plaintiffs can establish a class of one under the Equal Protection clause. Prior to Olech, arguably, plaintiffs could only establish classes based on inherent characteristics, such as race or religion. However, after Olech, homeowners whose property is singled out for eminent domain, while other similarly situated properties are not, can establish a class of one (i.e., those whose homes are taken) and can bring suit to challenge the arbitrariness of the decision to take the property. While Olech has been used to challenge zoning and other land use restrictions, to date it has not been proposed as an means to challenge an eminent domain taking for private development. In this article, I advance the argument that an Olech claim is an essential mechanism to enable homeowners, especially poor, uneducated, minority citizens who cannot actively participate in the political process, to challenge the differential treatment and rationality of an eminent domain taking for private development.

This article proceeds as follows. In Part I, I discuss the history of urban renewal. Urban renewal was a movement wherein governments used the broad power of eminent domain to condemn homes as blighted, and effectively, and perhaps intentionally, displaced poor and minority homeowners. Today, although eminent domain takings are no longer motivated by racial animus, statistically the effects of this process disproportionately fall on poor, uneducated minorities.

In Part II, I begin by explaining how suits are filed under the Equal Protection clause through 42 U.S.C. 1983. Next, I explore Village of Willowbrook v. Olech in detail. Olech established that a plaintiff can establish a class of one, irrespective of traditional classifications, such as race, religion, or gender. Olech represents a significant tool plaintiffs can use to seek remedies against land use regulations when they are intentionally singled out by the government for different treatment than other similarly situated homeowners. In many cases following Olech, plaintiffs have had a very high success rate of challenging the rational basis test, even in the absence of proving governmental malice.

In Part III, I develop the necessary elements of a viable equal protection claim challenging an eminent domain taking for private development under Olech. First, the plaintiff needs to establish that he is a member of a class. This is a facile task in light of Olech's holding that a class of one can exist. Second, the plaintiff must establish that the government intentionally treated him differently than similarly situated citizens. Third, the plaintiff must show that the decision to take the property was irrational. Relying on Justice Thomas's dissent from Kelo, as well as Footnote Four of United States v. Carolene Products and Professor Ely's representation reinforcement theory, I argue that the courts should apply a heightened form of scrutiny to protect the interests of the poor, uneducated, minorities who lack access to the political channels. By applying standards using in City of Cleburne v. Cleburne Living Center and Roemer v. Evans, the courts can faithfully apply the principles behind Footnote Four, and help protect the most vulnerable members of society, and those most in need of protection against eminent domain.

Ben Barros

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Borden on Open Tenancies in Common

Bradley T. Borden (Washburn) has posted Open Tenancies in Common on SSRN.  Here's the abstract:

Tax law (section 1031 in particular) has spawned a new investment vehicle-open tenancies in common. Tax law allows property owners to exchange into like-kind real property tax free, but finding suitable replacement property can be difficult. Real estate syndicators, recognizing a demand for ready-access replacement property, began offering undivided interests in large multi-million-dollar properties to individual investors exchanging out of smaller properties. Those offerings were the first open tenancies in common. Open tenancies in common are distinguished from traditional or close tenancies in common by the size of coowned property, the coowners' mutual lack of acquaintance, and the separation of ownership and management of the property. Open tenancies in common raise issues from several disciplines, including tax; property, business, contract, and, securities law; and economics. To provide the tax benefits investors seek, interests in open tenancies in common must be real property for federal tax purposes. That implicates the tax entity classification rules, which the IRS has addressed with published guidance. Numerous investors coowning a single property raises property law issues, such as rights of possession, rights to revenue, obligations for expenses, and rights to partition. The coowners' lack of acquaintance and disparate background raise business law issues. For example, the coowners may wish to restrict transferability of interests, have governance agreements, and create standards for third-parties who manage the property. Finally, open tenancies in common raise economic concerns and appear to come within the jurisdiction of the securities laws. This Article introduces open tenancies in common to the academic literature, analyzes them, and recommends modifications to the IRS guidance based on property law, business law, and economic and tax theory.

Ben Barros

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Stern on the Legal Mythology of Home

Stephanie Stern (Loyola Chicago) has posted Residential Protectionism and the Legal Mythology of Home on SSRN.  Here's the abstract:

Residential real estate has achieved an exalted status and privileged position in American property law. The notion of the home as a special object deserving heightened protection is widely accepted within the case law and scholarship. Influential scholars, most notably Margaret Radin, have argued that the home is critical for an individual's very identity and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting individuals in communities of close-knit social ties. Over the past century, there has been a proliferation of legislation creating special protections for owners of residential real estate such as homestead exemptions, tenancy by the entirety, property tax relief, and more recently foreclosure relief and state eminent domain legislation shielding residential real estate. This type of legislation imposes a variety of social costs including raising the cost of credit, skewing housing prices and incentivizing over-investment, and forcing less affluent homeowners to subsidize more affluent homeowners through regressive measures. One motivation for residential protection legislation is the desire to protect the special values attributed to the home, especially for families. More often, the impetus for such legislation is rent-seeking by special interest groups, competition between states to attract residents, actions by local home voters who attempt to externalize costs across localities, or grandstanding by politicians anxious to capitalize on the evocative chord of home protection. The belief that homes play a critical and irreplaceable role in the lives of individuals and families has provided a gloss of moral legitimacy to rent-seeking and greased the wheels of the residential protectionism machine. It is time for a critical reexamination of the importance attributed to the home. Drawing on the research literature in psychology, sociology, and demographics this paper argues that there is scant evidence to support a categorical theory of the home as a special object that constitutes individual identity or enables a rich web of social interactions. The psychology research illustrates the importance of social interaction and relationships (not possessions) for human functioning while the demographic research indicates that closely-knit, low-turnover, territorial neighborhoods are the exception, not the norm.

Ben Barros

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Claeys on Virtue and Rights in American Property Law

Eric Claeys (George Mason) has posted Virtue and Rights in American Property Law on SSRN.  Here's the abstract:

This paper contributes to a forthcoming theme issue on property and virtue theory. It is written as a response to "The Social-Obligation Norm in American Property Law," by Gregory Alexander, and "Land Virtues," by Eduardo Penalver.

The paper makes two claims of broader interest. First, contemporary virtue theory deserves respectful attention in property scholarship, not least because it shows the way for philosophical legal scholarship to avoid many standard criticisms of practical philosophy associated with deontological theories of morality. The paper describes a loose collection of "eudaimonistic" theories, which, from different metaethics, all stress greatly the importance of virtues and happiness in accounts of good ethical or political choices. Eudaimonistic theories anticipate and avoid many of the challenges that standard deontological accounts get from standard utilitarian accounts.

Second, the paper critiques an important claim made in both lead articles - that it is appropriate, in a significant range of cases, to use specific conceptions of virtue or flourishing as rules of decision in property law. This paper recounts why virtue theory can backfire when applied as directly to law and politics as it is in ethics. The term "virtue" automatically suggests that there exists a hierarchy of different forms of human excellence. But since most citizens are bad judges of the highest virtues, in practice virtue politics often end up fomenting civil strife. Enlightenment political philosophers who prized virtue and happiness philosophically still sought to displace classical and medieval virtue political theory for that reason. They sought to replace virtue political theory with liberalism - the political order in which the government admits it is competent to secure preservation but not to settle questions about virtue. If not sharply qualified, this background suggests, public theories of virtue can destabilize property rights' contributions to human flourishing.

Ben Barros

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California Western Looking For Property Prof

The folks at California Western sent this along:

California Western School of Law invites applications from visiting faculty to teach Property for the fall and possibly the spring of the 2009-2010 academic year. 

We are looking for candidates with excellent qualifications in teaching, collegiality, and scholarship.   CWSL encourages applications from women, minorities, and others whose backgrounds will facilitate a stimulating and diverse cultural and intellectual environment.

CWSL is a private, independent law school located in

San Diego

–a city abounding with cultural and recreational resources and blessed with near-perfect weather year-round.

Please send a letter of interest, résumé, and names of three references by e-mail to Professor Linda Morton ([email protected]), Visitor Search Committee.

Ben Barros

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Community and Property

Theoretical Inquiries of Law has a new issue out on Community and Property that looks outstanding.  Here's the table of contents:

Introduction

Community and Custom in Property

Henry E. Smith

How Property Can Create, Maintain, or Destroy Community

Amnon Lehavi

The Evolution of Private and Open Access Property

Abraham Bell and Gideon Parchomovsky

How Blackstone Became a Blackstonian

David B. Schorr

Properties of Community

Gregory S. Alexander and Eduardo M. Peñalver

Community and Property -- For Those Who Have Neither

Jeremy Waldron

Property, Community, and the Problem of Distributive Justice

J. E. Penner

"You'll Never Walk Alone": On Property, Community, and Football Fans

Avital Margalit

Plural Ownership, Funds, and the Aggregation of Wills

Joshua Getzler

Commons, Anticommons, and Community in Biotechnological Assets

Stephen R. Munzer

Ben Barros

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Yale Pocket Part Symposium on Virtual Worlds

The Yale Pocket Part is holding a symposium on virtual worlds.  Two articles look like they would be of particular interest to property profs:  James Grimmelmann, Virtual World Feudalism, and Joseph Blocher, Reputation as Property in Virtual Economies.

Ben Barros

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Bronin on Sustainable Design and Land Use

Sara C. Bronin (U. Conn.) has posted The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States on SSRN.  Here's the abstract:

Thirty-seven years ago, a book called The Quiet Revolution in Land Use Control argued that states would soon take over localities' long-held power over land use regulation. In the authors' view, this quiet revolution would occur when policymakers and the public recognized that certain problems-like environmental destruction-were too big for localities to handle on their own. Although the quiet revolution has not yet occurred, this Article suggests that it will, and should, occur alongside the ever-growing green building movement. This movement presents practical and ideological challenges to our current system of regulating land use. This Article examines those challenges, which occur primarily as a result of the "locality"-the local administration and enforcement-of "traditional" land use laws such as zoning ordinances and design controls. It uses the green building example to rebut the post-quiet-revolution scholarly presumption that land use is, or should be, an inherently local function.

Currently, traditional land use regulation takes place at the local level. As written and enforced, zoning and design controls laws create unnecessary conflict between the desire to live in safe, attractive, and culturally rich communities and the desire to make those communities environmentally responsible. This tension raises the question: how should our traditional land use laws change in light of growing evidence of the negative externalities of conventional construction?

This Article argues that the dominant mode of land use regulation nationwide bars the reforms that environmentalists and the building industry have worked together to develop. Given the failures of local governments to facilitate green building, it argues that when the consequences of land use laws exceed local boundaries, "extra-local" regulation should be considered. Instead of either a regional or national approach, this Article takes up the quiet revolution's rallying cry that states should play a stronger role in shaping the way traditional land use laws respond to green building.

Ben Barros

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Fenster on Lingle and the Stubborn Incoherence of Regulatory Takings

Mark Fenster (Florida) has posted The Stubborn Incoherence of Regulatory Takings on SSRN.  Here's the abstract:

Lingle v. Chevron (2005), the Supreme Court's most recent effort to sort the complex federal constitutional regulatory takings doctrine, resulted in what commentators have praised as a relatively unified and coherent "takings jurisprudence" and two-step adjudicatory roadmap for federal and state courts. This article reviews Lingle more than three years after its issuance to see the extent to which the Court succeeded in taming and explaining regulatory takings. It notes Lingle's successes, especially in disentangling the worst confusions regarding the relationship between regulatory takings and the substantive due process and in providing an understandable process by which state and lower federal courts have recently been resolving federal constitutional takings litigation. But Lingle did not -- and, this article argues, could not -- thoroughly disentangle and bring coherence to a doctrine that past cases and current disputes over real property, the environment, and land use planning make stubbornly unresolvable in the abstract. The so-called Penn Central ad hoc balancing test ultimately brings a degree of incoherence to "takings jurisprudence" -- an incoherence that allows courts sufficient room to adjudicate difficult cases and protect the institutional deference that has become central to post-New Deal review of administrative decisionmaking.

Ben Barros

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Bird and Oswald on Necessity and Eminent Domina

Robert C. Bird (Univ. of Connecticut - Department of Marketing) and Lynda J. Oswald (Univ. of Michigan - Stephen M. Ross School of Business) have posted Necessity as a Check on State Eminent Domain Power on SSRN.  Here's the abstract:

The Supreme Court decision of Kelo v. City of New London has provoked rigorous debate over the proper discretion given to government entities exercising powers of eminent domain. Rarely discussed is the equally important requirement of necessity. Necessity doctrine requires that a condemnor justify that the proposed taking is reasonably necessary for the stated purpose. Few attorneys and even fewer scholars have discussed the role of necessity doctrine in modern eminent domain practice. This manuscript traces the history and development of necessity, discusses cases where courts have preventing takings for lack of sufficient necessity, and suggests opportunities for practitioners to better challenge proceedings. This manuscript concludes that necessity should be revived from its largely dormant state and can play a meaningful role in curbing the worst excesses of eminent domain.

Ben Barros

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Eagle on Property, Planning, and State Power

Steven J. Eagle (George Mason) has posted Reflections on Private Property, Planning, and State Power on SSRN.  Here's the abstract:

This essay, in a journal for professional planners and planning lawyers, proposes that the debate between advocates of private property rights and of expansive government regulation of land use be tempered by recognition that the U.S. Supreme Court's takings jurisprudence has not always been as partisan as often portrayed. The essay discusses land use regulation and the appropriate role of planners, in light of information costs and rent seeking. It discusses the difficulties in fine tuning land use through municipal industrial policy and in providing meaningful post-Kelo scrutiny to municipal condemnations for economic development. The essay concludes by suggesting that, under these circumstances, local regulation to reduce greenhouse gas emissions is not auspicious.

Ben Barros

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Property Section Listserv

Just a reminder that information about joining the AALS Property Section Listserv can be found through this link.

Ben Barros

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Property Mid-Year Meeting 2010

I recently learned that the Property Section of the AALS has been approved for a mid-year meeting in 2010.  No date or location has been set.  I'll post more info as I get it.

Ben Barros

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Continue reading

New AALS Property Section Leadership

Here is the new AALS Section Leadership:

Chair:  Carol Brown, UNC

Chair-Elect:  Kali Murray, Marquette

Secretary:  Nestor Davidson, Colorado

Executive Committee Members:  John Fee, BYU; Shelley Saxer, Pepperdine; Steve Eagle, GMU

Ben Barros

[Comments are held for approval, so there will be some delay in posting]