Sunday, October 11, 2009

Restrictions Against Clotheslines: The Next Great Battlefield for Property Rights?

It appears possible, according to the New York Times.

From the story:

Jeanne Bridgforth, a real estate agent in Richmond, Va., said that while she had no personal opinion on clotheslines, most of her clients were not thrilled with the idea of seeing their neighbors’ underwear blowing in the breeze.

She recalled how she was unable to sell a beautifully restored Victorian home in the Church Hill neighborhood of Richmond because it looked out onto a neighbor’s laundry hanging from a second-story back porch. In June, the house went into foreclosure.

“Where does it end?” Ms. Bridgforth said of the legislative push to prevent housing associations from forbidding clotheslines.

To take some covenants from Chapel Hill for purposes of illustration .... Southern Village's covenants (paragraph 20) require that clotheslines by concealed, but do not prohibit clotheslines entirely.

Alfred L. Brophy

October 11, 2009 in Land Use | Permalink | TrackBack (0)

Saturday, October 10, 2009


Congratulations to the Widener Law/Harrisburg Class of 2009 for achieving a 94.32% first-time pass rate on the July Pennsylvania Bar, third in the state behind only Penn and Temple.  A great reward for a tremendous amount of hard work.

Ben Barros

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October 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Bray on Preventive Adjudication

Samuel Bray (Columbia) has posted Preventive Adjudication on SSRN.  Here's the abstract:

This Article identifies, justifies, and explains the parameters of a largely ignored but important category of cases - what is here called “preventive adjudication.” In this category of cases, courts offer opinions without any “command” to the parties, and these opinions are meant to avoid future harm, not remedy past harm. Despite receiving little attention in the legal literature, preventive adjudication is pervasive throughout law. It happens in declaratory judgment actions about wills, patents, and unconstitutionally vague statutes; in paternity and maternity petitions; in petitions to have missing persons declared dead; in boundary disputes; in actions to quiet title. This Article explains what preventive adjudication is and how it should and should not be used.

Preventive adjudication is intuitively appealing, because it helps people avoid harm and clarifies the law. But there are downsides to deciding cases in advance instead of waiting for remedial adjudication. The argument for preventive adjudication is therefore a qualified one. This Article identifies not only the merits of preventive adjudication but also the crucial limiting principles. One limiting principle is administrative and error costs; another is the adequacy of discounting, i.e., taking into account the uncertainty of future events. People discount for many kinds of uncertainty, and discounting is usually adequate for uncertainty caused by law. But discounting is inadequate when the law causes uncertainty about inescapable threshold questions for human behavior, such as legal parenthood, citizenship, marital status, or death. Discounting is also inadequate for uncertainty about property rights, because uncertainty undermines the policy reasons for having property rules in the first place. Where discounting is inadequate, preventive adjudication is especially valuable.

This Article also shows how this normative understanding of preventive adjudication can be translated into the actual practice of courts in the United States. Legal systems in the United States have two ways of determining which cases should be decided by preventive adjudication: sometimes they rely on judicial discretion to decide if preventive adjudication is appropriate in each case (“retail sorting”); and sometimes they specify categories of cases in which preventive adjudication is available (“wholesale sorting”). An analysis of both approaches shows that wholesale sorting - which is common in state courts but almost unknown in federal courts - better aligns the actual practice of preventive adjudication with the cases in which it is justifiable.

Ben Barros

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October 10, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 8, 2009

Sotomayor, the King's Two Bodies, Corporations and Property

So the story goes, a Justice, a King and a Property Teacher Walk into a Bar and the Justice says how are we supposed to turn the other cheek on Corporations when they are given all of the privileges of people but all of the immunities of an immortal." The King turns to the professor and says, "it helps to have two faces."  (Rim Shot -- and if you want to know why the punch line makes sense, read on....).   

 In the wake of Sonia Sotomayor's first entre' into Campaign Finance Reform on the court, she asked what many scholars have asked over time:  Why do corporations get to be treated as people for certain things. Sotomayor said: Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."   Of course, the historical precedent is not what Sotomayor is taking issue with, its the correctness of that decision.  Indeed, Abraham Lincoln warned that "Corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the republic is destroyed."  Clearly, American Corporation law draws its roots in the nineteenth century's industrial revolution and the transformation of the American economy. And ever since Santa Clara County v. Southern Pacific, American law has recognized that corporations are entitled to assert the bill of rights much like an actual person.  But the concept of the corporation as a person, is far more nuanced and mystical, yea its a Dan Brown novel waiting to be written...

The first scholar to dive into the concept of origins of the Corporation was F.W. Maitland.  In two early twentiethcentury articles titled The Corporation Sole (1900),  The Crown Corporation (1901), Maitland dives into the question of corporations as artificial persons.  Maitland begins  Corporation Sole by quoting Edward Coke:


Persons are either natural or artificial. The only natural corporations are either aggregate or sole. Persons are men. The only artificial persons are corporations.

Maitland then goes on to describe the creation of the concept of artificial persons as one directly attributable to property. Specifically, the first English Corporations were in the form of the Parson of the church, who as the "corporation sole" represented the body that held the lands on behalf of the church. In Coke's day, there were three distinct corporation soles, Ecclesial or parsons, the Chamberlain (or Treasurer) of the City of London, and the King.  Its the King, however, that becomes the most prominent artificial person. Indeed, the King is said in the Case of Dutchy Lane at Sergent's Inn, (Plowden's Reports) to possess

a body natural adorned and invested with the estate and dignity royal, and he has not a body natural distinct and divided by itself from the office and dignity royal, but a body natural and a body politic, together indivisible, and these two bodies are incorporated into one person and make one body and not divers, that is the body corporate in the body natural et e contra the body natural in the body corporate.

But the body politic and the body natural, though joined in one "corporation" held distinctive natures. As stated in the same report:

His body natural... is a body mortal, subject to all of the infirmities that come by nature or accident, to the imbecility of infancy or old age, and to the like defects that happen to the natural bodies of other people. But his body politic is a body that cannot be seen or handled, consisting of policy and government and constituted for the direction of the people and the management of the public weal, and his body is utterly void of infancy, and old age, and other natural defects and imbecilities which the body natural is subject to, and for this reason, what the king does in his body politic cannot be invalidated or frustrated by any disability in his natural body.

Thus, the concept of the body of the king recognized that in the capacity as King a number of conclusions were appropriate including that he was flawless and that time did not run against him (nullem tempit occurit regis). What's perhaps the most interesting, is that these fictions begin at the property level. Property represented in the early days of the fiction the point in the material world where the mystical properties of corporations, kings, and governments interceded into normal human activity. It is, as Ernst Kantorowicz analogized, the metaphor of the Eucharist in one political person -- the mystical joined with the tangible and therefore made known in an understandable form. In the early days, it was the property or the person that made the corporation a meaningful entity. And thus, the corporation did not speak or exist outside of the tangible form, but rather adopted the tangibility, cleansed it, and made it sacrosanct. 
Perhaps that is why Sotomayor has a point. It seems that Sotomayor struggles with the idea of imbuing corporations with eternal qualities at the same time that we offer them human existence and privileges. In large measure this is a function of the intangible entity. Do we really want corporations that are not tied in some tangible way to human existence, whether by the actors that can be held accountable for their actions, or the property that can be taken away and therefore stripping the corporation of its existence in the real world, with the perpetual ability to speak. That seems to be a relevant point in a day in which Corporations so easily vanish without a trace of their existence except the path of destruction they left behind. 
And if Dan Brown does write a novel about King's and corporations, I expect my royalties. 
Image of F.W. Maitland, taken from Wikipedia
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October 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 6, 2009

Christie on Beach Front Boundaries and Stop the Beach

Donna R. Christie (Florida State) has posted Of Beaches, Boundaries and SOBs on SSRN.  Here's the abstract:

As sandy beach property has become more scarce and more expensive, the controversies between upland owners and public users of the beach have increased. The public has an absolute right under the public trust doctrine to use the beach below the mean high water line (MHWL) boundary that defines the limits of state lands and littoral ownership, but “knowing” where that ambulating line is at any given time is virtually impossible. This uncertainty exacerbates the tensions that in Florida are leading to clashes between private land owners and the public. Setting a fixed boundary would lead to more certainty and consequently less controversy, but both legal and policy issue arise concerning this approach. In once instance, however - setting a fixed boundary between upland owners and submerged, public trust lands for purposes of government restoration of critically eroding beaches - a fixed boundary with appropriate protections for littoral owners seems to address problems of certainty, as well as legal and policy concerns. The Florida Beach and Shore Preservation Act’s (BSPA) use of this approach has been challenged in the Florida Supreme Court and subsequently in the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Protection. This article explores public and private interests in beaches and shores, and how the complexities of coastal boundaries contribute to controversies about the use of beaches. The article then looks at how the BSPA attempts to protect both the private and public interests in the coast through, among other provisions, establishing a fixed boundary for restored beaches. Finally, the challenges confronting Florida’s beach management that have arisen as a result of suits in the Florida Supreme Court and now in the U.S. Supreme Court are analyzed.

Ben Barros

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October 6, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, October 5, 2009

Starbucks Cards, Seating Charts, and First Property RIghts

Thanks Ben for the introduction.  I am teaching Property for the first time this semester, but I feel like i have been here for a while.   I have tried some things this semester that I was not sure if they would work, but have been pleased with their results.  The first day, I took a trick from Thom Lambert (who blogs over at Truth on the Market), and held a swapping bazar of "things I cleared out of my office."  I traded an old copy of Friedman's History of American Law for a $10.00 Starbucks card; some various treatises that I had accumulated and which were out of date (only because the publisher had a more recent edition) for another $10.00 Starbucks card; and what turned out to be the most bargained for item of the day, a CD from the early 1990's titled Pornographiti, which went for (you guessed it) another $10.00 Starbucks card and a Subway Sub Club Card, which was half punched through.  (There is another post somewhere about why so many law students have $10.00 Starbucks cards). 

After the bartering was done, I asked the first student on my call list if there was anymore property in the room than when we first started.  Of course, he said no because no one has brought anything else in the room since we began, and I moved on to the next student. The answer, of course, was that there was new property in the room in the form of the value in the transaction we created. The point was getting them to see that property is (1) not just tangible things, but intangible as well (the secured transactions professor coming out in me); and (2) that property carries with it certain economic distinctions.  I also asked them to think about how property could be used to order our classroom environment.  For example, if in having a seating chart, what if I only allowed those that bartered with me to select their seat, but otherwise dictated where everyone should sit. Better yet, I could have allowed the bartering students to determine where individual people sit.  All in all, it was a nice introduction to some basic ordering concepts of property -- commodity and propriety we might say.  

What happened to the Starbucks cards, you might ask.  Well, since I don't drink coffee, I really had no problem parting emotionally with them --- besides I felt slightly conflicted for taking someone's valued coffee money for out of date treatises, and a Pornographiti CD.  However, I also felt that in order for the lesson to be truly understood and remembered later on, I could not just return them to the original owner.  So, I used them as a lesson in capture prior to Pierson v. Post.  You should see law students run after Starbucks cards when they learn that they have been deposited (apparently) into the card's natural environment.  But that's a tale for another day...    

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October 5, 2009 in Teaching | Permalink | Comments (1) | TrackBack (0)

Baron on The Contested Commitments of Property

Jane B. Baron (Temple) has posted The Contested Commitments of Property on SSRN.  Here's the abstract:

The means by which property organizes human behavior and social life is the subject of profound and heated debate. On one side, information theorists emphasize that property works in rem, using standardized signals to tell all the world to keep off things owned by others. On the other side, progressive theorists emphasize property’s capacity to promote human flourishing, respect for human dignity, Aristotelian virtue, or democratic governance. The divide between these two schools of thought represents the most vital dispute in a quarter-century of property scholarship, and it seems likely to preoccupy academics (and their students) for at least another generation.

This paper claims that debates between informational and progressive scholars, despite their prominence, are not adequately understood. Such debates currently center on whether the right to exclude is fundamental to property law. This issue plays out doctrinally in arguments over whether trespass is property’s paradigmatic rule, and metaphorically in arguments over whether exclusion rights, as opposed to human relationships, lie at property’s “core.”

By contrast, this paper suggests that academics’ singular focus on exclusion has obscured even deeper questions about property’s stability, its institutional mechanism for change, and its very status as a distinctive field of study. Rather than pursuing unproductive controversies over what lies at property’s “core” and “periphery,” this paper presents a different metaphorical contest as a more accurate account of the issues in modern property law. Information theorists employ the metaphor of property as a machine - a machine that, with minimal tinkering, has produced a good-enough social ordering and will generally continue to do so. This mechanical metaphor is inconsistent with progressive theorists’ view of property as a conversation. The progressives’ conversation metaphor expresses the view that we need to continually question whether the system is good enough, that we need to openly debate the quality of the human relationships that property produces, and that we must revise property rules that fail to fulfill our underlying value commitments. This metaphorical contest is important doctrinally because it reflects conflicting views about whether we can ever unreflectively trust property rules to express our values. “Machine” and “conversation” suggest very different visions of how much faith we should have in our existing system of property, of whether it is good enough, and of whether we can trust ourselves to improve it.

Ben Barros

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October 5, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Marc Roark

I am delighted that Marc Roark (La Verne) will be joining us as a guest blogger.  I'm a fan of Marc's work, and look forward to his posts.

Ben Barros

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October 5, 2009 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Friday, October 2, 2009

Lewinsohn-Zamir on Outcome Assessment

Daphna Lewinsohn-Zamir (Hebrew University) has posted Beyond the Bottom Line: The Complexity of Outcome Assessment on SSRN.  Here's the abstract:

No one denies the importance of outcomes. Whether the object of our evaluation is acts, legal rules, policies or institutions, the outcomes they generate must be taken into account. Given the pivotal role of outcomes for legal analysis, surprisingly little attention has been devoted to the question of what an outcome actually is. Law-and-economics scholars, for example, typically disregard this issue, implicitly adopting the narrowest possible definition of outcomes, namely, end-results. This Article addresses the gap in the literature by conducting an experiment which examines people’s assessment of outcomes. The experimental findings reveal that individuals reject a narrow, simplistic conception of outcomes and embrace a broad one instead. In addition to end-results, various other factors are regarded as being part of the ensuing outcome itself. Consequently, events with similar end-results are perceived as generating different outcomes. Specifically, factors such as how an outcome was brought about, the voluntariness or non-voluntariness of the parties’ behavior, the intentionality or non-intentionality of their acts, and the identity of the parties involved, significantly affect people’s perception of the goodness or badness of the outcome. These findings have potentially far-reaching implications. If efficiency analysis aims at maximizing people’s welfare — measured by the extent to which their preferences are fulfilled—it must not ignore the fact that preference-satisfaction is determined by various factors in addition to the end-results. Analysis of several legal issues illuminates this general conclusion. The fact that individuals perceive outcomes broadly sheds new light on a diversity of issues such as: punitive and liquidated damages in contract law, the efficient breach doctrine, compensation for takings of property, the choice between property rules and liability rules, land assembly for economic development projects, the zoning vs. homeowner associations debate, and the public/private distinction.

Ben Barros

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October 2, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Respondents' Merits Briefs in Stop the Beach

Respondents' Merits Briefs in Stop the Beach are now available online.  PropertyProfs will be interested to note that Tom Merrill is counsel of record for Walton County and the City of Destin.

Ben Barros

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October 2, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Property Resources Database

Rebecca Tushnet (Georgetown) is working on putting together a database of property teaching materials - everything from photos of the beach in Lucas to problem sets.  Rebecca is looking for contributions to the database.  She is also looking for someone to help gather contributions and manage the database.  If you have something to contribute, or want to help out, please send Rebecca an e-mail (

Ben Barros

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October 2, 2009 in Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, October 1, 2009

Treanor on Morton Horwitz and the Takings Clause

William Michael Treanor (Fordham) has posted Morton Horwitz: Legal Historian as Lawyer and Historian on SSRN.  Here's the abstract:

Dean William Treanor examines and celebrates the work of legal historian Morton Horwitz, author of two magisterial histories of American law, The Transformation of American Law, 1780-1860 (Harvard University Press 1977) and The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Oxford University Press 1992), through the lens of Horwitz’ path breaking treatment of takings law. With personal memories of Horwitz as a point of departure, Dean Treanor assesses Professor Horwitz’s contribution to the understanding of the evolution of theories of property and the history of the takings clause. Treanor highlights Horwitz’s ability to examine contending views of the takings principle from within the context of larger political and economic movements. Perhaps Horwitz’s greatest contribution to the ongoing conversation about the history of American law, in Dean Treanor’s view, is his awareness of a tension between the ambiguity at the center of takings doctrine and the constraining force of legal reasoning.

Ben Barros

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October 1, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Salkin on New York Land Use Law and Sustainability

Patricia Salkin (Albany) has posted Modernization of New York's Land Use Laws Continues to Meet Growing Challenges of Sustainability on SSRN.  Here's the abstract:

There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many modifications to New York State’s planning and zoning enabling acts over the last two decades. Particularly, the article identifies the delegation of extensive discretionary authority to local governments as New York’s signature approach to land use control.

Part II discusses “affordable housing” as a key attractant for judicial action and local government response. With the exception of the Long Island Workforce Housing Act in 2008, the State has been slow to act on judicial calls to action, forcing local governments to develop unique solutions in order to provide affordable housing.

Finally, Part III notes the challenges being faced by lawyers and planners in light of growing preference for alternative energy systems, with specific focus on reactions to Wind Energy and Solar Energy installations.

Ben Barros

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October 1, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)