Wednesday, November 25, 2009

Press Stories on Stop the Beach

Yesterday's Washington Post had a great story on the Stop the Beach Renourishiment case by Robert Barnes.  The case was also discussed by Ashby Jones at the WSJ Law Blog.  Both made my Dean very happy.

Ben Barros

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November 25, 2009 | Permalink | Comments (0) | TrackBack (0)

NY Court of Appeals Decision in Atlantic Yards Case

The New York Court of Appeals has issued its opinion in the Atlantic Yards case.  Unsurprisingly, the court allowed the use of eminent domain to transfer private property to a private developer.  Ilya Somin comments at the VC, and the NY Times has a story on the case.

Ben Barros

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November 25, 2009 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, November 23, 2009

Post-Argument Panel on Stop the Beach

From Peter Byrne (Georgetown):

When: Wednesday, December 2nd, 12:15 PM

Where: Hart Auditorium, Georgetown University Law Center
              600 New Jersey Ave., NW, Washington, DC

Immediately after oral argument in the Supreme Court, hear advocates discuss Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, which presents the question whether a judicial change in the common law can “take” property from landowners in violation of the federal Takings Clause. The case also raises questions about how a state can legislatively address beach erosion and modify the boundaries between public tidelands and private uplands, issues that will grow in significance as sea levels rise due to global warming.  Briefs in the case can be found at


D. Kent Safriet, Hopping, Green and Sams, Counsel for Petitioner
Thomas Merrill, Yale Law School, Counsel for Respondents Walton County and City of Destin
Ilya Shapiro, Cato Institute, Counsel for Amici, Cato Institute, et al.
John Echeverria, Vermont Law School, Counsel for Amicus, American Planning Association
Richard Lazarus, Georgetown University Law Center, Supreme Court Institute

Presented by: Georgetown Environmental Law and Policy Program (GELPP) & Georgetown University Law Center Supreme Court Institute

For more information, contact Professor Peter Byrne at [email protected]

Ben Barros

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November 23, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 18, 2009

Lehavi on Takings and Taxings

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

Takings jurisprudence is engaged in a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.

This Essay offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between taking and taxing. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.

The main thesis of the Essay is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.

Identifying American property law as conforming to two fundamental principles-formalism of rights and strong market propensity-but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Essay explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Essay shows why taxation is considered a “lesser evil” type of government coercion, how the taking/taxing dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and private control of assets.

Ben Barros

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November 18, 2009 in Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, November 13, 2009

Testing Theory on Property Exams

Does anyone offer a "pure" theoretical question on their property exam.  This semester I assigned 88 pages out of Commodity and Propriety to force students to undertake careful reading in a different context other than cases.   So we have weaved in through the semester this theme as it has been appropriate.  Then came the question, how was I going to test this material.  

One of my divinity school professors would give ten theoretical questions at the beginning of the semester, of which four would be on the exam. I decided to use this trick and give my students two questions in advance of which one of them will be on their final examination. The trick is that they don't know which one.  The other trick is that the exam is a word limit exam, and they do not know the word limits prior to the exam.  My rationale is that this material is such that I just want their knowledge to be expanded.  So if they are caused to think about the material in preparation of answering a question on the exam, they at least have been exposed to the material as more than an in class anecdote or a piece of nice trivia.  From the grading perspective, I hope that this causes better answers than if the students were presented the material and asked to create a thoughtful answer in less than four hours.  Since I have distributed the questions in advance, I can go ahead and post them here as well.  

Possibility 1

Alexander writes: “Commodification had ambiguous implications for the Rule [against perpetuities].”  On the one hand, it made sense to conclude that the Rule was consonant with a commodified conception of land, insofar as it made land more readily available to creditors.  On the other hand, the commodified conception of property was not strictly an economic idea; more fundamentally, it was part of a broader social vision.” Is the modern approach to the Rule Against Perpetuities a greater reflection of the economic nature of property or the social ordering aspect of property?  

Possibility 2

Alexander describes the tension of American civic republicanism and English common law institutions in the context of time and history. Alexander writes: “American republican lawyers, including not only Jefferson but virtually everyone who wrote on the subject of Property, answered with a historical understanding of property and individual freedom.  Individual autonomy, they said, was secured by individual property rights because the meaning of individual liberation was negatively framed as the repudiation of ‘feudal tyranny’ itself serving as the central metaphor for domination and hierarchy. So long as the meanings of individual autonomy and property and their relation to each other were articulated in terms of a negation, the dilemmas of individualized property rights were avoided. … History (particularly, the feudal past) was a trope by which property and human liberation were signified, a symbol for the past that Americans were transcending.”    Explain the Johnson v. M’instosh opinion as either a confirmation or a repudiation of this American Republican Vision. 

Does anyone do anything similar?


November 13, 2009 in Law Schools, Property Theory, Teaching | Permalink | Comments (1) | TrackBack (0)

More on Pfizer's Pull Out From New London . . .

From the New York Times, and at the Times' Room For Debate blog.

Also, Tim Iglesias left this excellent comment to the last post on this subject:

In all of the analysis and judgment cited concerning the failure of the New London redevelopment project there is one important piece that is left out: the role of the litigation to stop the project. It may be that the litigation had little actual impact and that the project would have collapsed and failed completely independently of the opposition. However, anyone who has worked with real estate development knows that litigation alone can sometimes kill a project--particularly litigation of the extent and nature in this case. I would feel more comfortable with these analyses and judgments if the potential role of litigation had at least been considered as a contributing factor to the failure. Instead, the folks who brought the litigation and supported it argue as if it that part never existed.

Ben Barros

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November 13, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 10, 2009

Pfizer Pulls Out of New London

Pfizer is closing its New London facility.  The takings in Kelo v. New London seem more and more pointless every day.  Various folks in the blogosphere comment:  Will Baude, Ilya Somin, Jacob Sullum, Gideon Kanner.

Ben Barros

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November 10, 2009 in Takings | Permalink | Comments (1) | TrackBack (0)

Monday, November 9, 2009

Petitioner's Reply Brief in Stop the Beach . . .

is now available online.  All of the briefs in the case, including amicus briefs, can be found here (scroll down).

Ben Barros

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November 9, 2009 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Vermont Takings Conference

I'm back from the Regulatory Takings conference that was held at Vermont Law School last Friday.  I had a great time and learned a lot.  Thanks to John Echeverria and everyone at VLS for organizing the event.

Ben Barros

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November 9, 2009 in Conferences, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 4, 2009

Akee on Property Institutions and Efficiency in Housing Markets

The May issue of the Journal of Law and Economics has an article by Randall Akee (Tufts University) titled Checkerboards and Coase: The Effect of Property Institutions on Efficiency in Housing Markets (free download for subscribers only).  Here's the abstract:

In the late 1800s, Palm Springs, California, was evenly divided into 1-mile-square blocks—like a checkerboard—and property rights were assigned in alternating blocks to the Agua Caliente tribe and a non-Indian landowner by the U.S. federal government. The quasi-experimental nature of land assignment holds land quality constant across the two types of landowners. Sales, mortgaging, and leasing restrictions on the Agua Caliente Reservation land created large transaction costs to development on those lands; consequently, there was very little housing investment. The non-Indian blocks, which were extensively developed, provide a benchmark for efficient outcomes for the Agua Caliente lands. Once the restrictions on Agua Caliente lands were relaxed in 1959, the number of homes and real estate values converged to those of non-Indian-owned lands as predicted by the Coase theorem.

Ben Barros

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November 4, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 3, 2009

Property Visitors Wanted

The University of San Francisco and Gonzaga are both seeking property visitors for parts of the 2010-11 school year.  Here's the info:


The University of San Francisco School of Law is seeking a visitor to teach Property and Trusts & Estates for the 2010-11 academic year.  The visit would likely be for a single semester, although a year-long position may be possible.  USF provides a highly congenial academic environment, with weekly faculty scholarship lunches, an engaged student body, excellent facilities, and all the benefits of a San Francisco location.  Formal inquiries should be directed to Prof. Josh Davis, Chair, Faculty Appointments Committee, at [email protected] or (415) 422-6223.  Applicants may contact Prof. Alice Kaswan, [email protected] or (415) 422-5053, with informal thoughts or questions.


Gonzaga University School of Law seeks applicants for a full-time visiting position for Spring 2011.  The visitor will teach a four-credit Property course to second-semester, first-year students.  In addition, the visitor may teach an upper level elective in an area of the visitor’s interest.  Applicants should have experience in teaching Property and a demonstrated commitment to teaching excellence.  The law school is strongly committed to diversifying its faculty and furthering Gonzaga’s mission.  For additional information, contact Professor Gerry Hess, Chair, Faculty Recruitment Committee, Gonzaga University School of Law, P.O. Box 3528, Spokane, Washington 99220-3528, or contact Professor Hess by e-mail at [email protected].


Ben Barros

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November 3, 2009 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Sunday, November 1, 2009

Salkin on Land Use Ethics

Patricia Salkin (Albany) has posted 2009 Ethical Considerations in Land Use on SSRN.  Here's the abstract:

This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and finacial interests; and cases involving allegations of bias and prejudgment.

Ben Barros

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