PropertyProf Blog

Restitution and history lessons

Imagine this:

2,500 innocent residents of country A are kidnapped by the armed forces of country B, transported across the seas and held in forced labor camps, and held as trade bait for country C.  Sounds like something from antiquity, yes?  Something involving the Greeks and Persians, perhaps.  Or, at the very least, something involving Kim Jong-Il.

Except: Country A is Peru, country B is the United States (the forced labor camps were in Texas), country C is Japan, and the years were 1942-1945.

We are all familiar with the internment of Japanese-Americans in camps and the infamous Korematsu decision that upheld that practice. 

But did you know that 2,500  Latin Americans of Japanese descent -- men, women, and children -- were kidnapped by the United States military from Bolivia and Peru, transported to the U.S. in deplorable conditions, and held for years in forced labor camps in the Texas desert?

One result of researching restitution issues is that you discover the most unbelievable stories. 

The U.S. apparently thought the Japanese would be willing to trade Americans held by Japan for these innocents.  They weren't. 

Worse still: when the war ended, these innocent people were deported for having entered the United States illegally(!) and forcibly patriated (not re-patriated, mind you) to war-ravaged occupied Japan, where most had never been before.  Many could not speak Japanese.   

A final insult to add to the injury: Congress passed the Civil Liberties Act of 1998, under which Japanese-Americans interned during the war received restitution of $20,000 each.  But these victims weren't Japanese-Americans, so they didn't qualify under the Act.  Instead, through a class-action lawsuit, most received a settlement of $5,000 each (see Mochizuki v. United States, 43. Fed.Cl. 97 (1999)). 

Chief Judge Smith of the Federal Court of Claims attached to his moving settlement order the affidavits of several victims.  They make for sobering, shocking reading.  These were people well-settled in their lives in Peru and Bolivia, business owners and farmers, many born there.  They lost everything.  One affiant recounts the haunting image from his childhood of his father being dragged away, shouting to him, but being unable to hear what his father was trying to tell him.

Restitution, to my mind, is the most difficult of all property issues.  Restitution is almost never adequate, and usually it does not even come close.  Moreover, the effects of time often make claims for restitution untenable -- the property taken is no longer there, or the entities that took it no longer exist, or the person from whom it was taken is dead, or the person who currently holds it is innocent too.

But one benefit of restitution issues is that they require us, to the extent possible, to look history squarely in the face.  Sometimes the view is suprisingly uncomfortable.

Mark Edwards

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Are cell phones a nuisance? Maybe to the bees.

Colony collapse disorder (in which bees inexplicably leave their hives and never return) seems like it has been pulled from the plotline of a M. Night Shyamalan horror movie.  Given the integral role that bees play in food production, this issue is fairly disturbing. 

But even more disturbing is a recent study from Chandigarh's Punjab University which places the blame squarely on mobile phones.  Read a report in The Daily Telegraph here or watch a bee video on CNN.com here.  

Ved Prakash Sharma and Neelima Kumar, the authors of the report in the journal Current Science, wrote: "Increase in the usage of electronic gadgets has led to electropollution of the environment.  Honeybee behaviour and biology has been affected by electrosmog since these insects have magnetite in their bodies which helps them in navigation."

"There are reports of sudden disappearance of bee populations from honeybee colonies. The reason is still not clear. We have compared the performance of honeybees in cellphone radiation exposed and unexposed colonies.  A significant decline in colony strength and in the egg laying rate of the queen was observed. The behaviour of exposed foragers was negatively influenced by the exposure, there was neither honey nor pollen in the colony at the end of the experiment."

This is just one study, so obviously the science is still out on the issue.  Laying aside my question of whether this information will impact my planned purchase of an iPhone 4, it seems that this raises interesting questions for first year Property students to struggle with:

Would a farmer suffering from a lack of bees have a nuisance claim against a neighbor who has a cell phone tower on their land?  If the flowers in my back yard are looking a little peaked, would I have a nuisance claim against my neighbor who lounges in the back yard all day talking on their cell phone?

Tanya Marsh

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Treanor from Fordham to Georgetown

As Dan Filler reports, Bill Treanor is leaving his post as Dean of Fordham Law School to take up the position of Dean of Georgetown Law.  As many readers know, Bill is a noted legal historian, and has written the authoritative histories of the Just Compensation Clause.  He was also my professor for first-year Property, Land Use, and two independent studies on takings issues.  This is a great appointment for Georgetown, and a big loss for Fordham.

Ben Barros

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We are Under-Selling Property. Debate.

Tanya's recent post on devising a first-year property curriculum, and my recent experience teaching and researching in the Czech Republic, have brought to the fore of my mind an important -- I'd say critical -- misstep in many property courses: we are under-selling the importance of property rights.

Now, that may seem counter-intuitive: it's a required course, after all, and usually the one that eats up the most credits.  It covers, as Tanya discusses, such a wide range of issues that it runs the risk of dissolving into a coreless hodgepodge.  So how can we be under-selling property rights?

Here's how: how many of us take the time to teach our students that property rights are at the center of the most massive struggles in world history?  That the fundamental, irreducible core of capitalism is a particular conception of property rights, that the fundamental, irreducible core of communism is a different conception of property rights, and that these two conflicting ideas dominated the course of the 20th century and may yet dominate this one?  That conflicting systems of property rights determined the courses of colonial empires and colonized cultures?  That millions upon millions died as a result of these struggles?

Property, in other words, isn't so much about lost brooches as it is about lost generations.

What I think we are underselling is both the political economy of property rights, and the flesh and blood (with an emphasis on blood) results of ideas about property. This year I'll be revising my first-year property syllabus to include readings on the capitalist and communist conceptions of property rights and the concrete, historical results of these ideas.  I'll be expanding the readings about colonialism beyond just Johnson v. McIntosh.  And I'll be adding recent cases from places such as South Africa that may bring into sharper relief than our domestic cases that these struggles are not consigned to history, but are part of the present and future as well.

I'd love to hear your thoughts.

Mark Edwards

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NY Court of Appeals Rules in Columbia University Eminent Domain Case

The New York Court of Appeals today upheld the use of eminent domain for an expansion of Columbia University.  Ilya Somin comments at the VC; Matt Festa comments at the Land Use Prof Blog; Tim Sandefur comments at the PLF's blog; and Robert Thomas comments at the Inverse Condemnation Blog.

Ben Barros

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Does anyone read their mortgage documents? Judge Posner didn't.

According to Above the Law, Judge Richard Posner recently admitted at an American Constitution Society conference on regulation that when presented with voluminous documentation at his home equity closing, he signed on the dotted line without reading the paperwork.  David Lat, the Above the Law blogger, was incredulous:

"This generated laughter from the crowd, due to Judge Posner’s status as one of the greatest legal minds of his (or any other) generation. It was amusing to imagine the brilliant Posner flipping page after page of paperwork and mechanically scribbling next to every “Sign Here” flag, without even bothering to read what he was signing. It’s the kind of behavior one would expect from a person earning $35,000 and a buying a $600,000 home two hours outside of Phoenix, circa 2006 — but not from one of America’s leading jurists."

Point taken, but I'm with Judge Posner.  I have been a commercial real estate lawyer for ten years.  During that time, I have purchased two homes.  In both cases, I requested copies of the title work, exception documents, and loan documents from the title company and lender, respectively, prior to closing.  In both cases, they acted like I was completely unreasonable.  The title company couldn't understand why I wanted to review exception documents at all, and the lender couldn't see how the loan documents could be generated prior to closing.  In any event, they both implied, why bother reviewing documents that you cannot negotiate?  (By the way, the purchase agreement was also pretty much non-negotiable.  Standard realtor form, just check the boxes and fill in the blanks.)

This is in stark contrast to commercial real estate deals where everything, no matter how minor, is negotiated.  And I get the business reality -- the $20 million shopping center deal can absorb the transaction costs of negotiation while my house can't. 

But if Judge Posner and I both accept that reviewing form mortgage documents that cannot be changed is a waste of time, I wonder if the conventional wisdom of the mortgage crisis is holding far less legally sophisticated borrowers to a higher standard.

Tanya Marsh

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Requiring a License to Rent in Fremont, Nebraska

Finally, an issue upon which The Huffington Post and the Daily Paul agree:  the "license to rent" ordinance being considered by the voters in Fremont, Nebraska today is a bad idea.  Designed to combat illegal immigrants, the ordinance would require verification of citizenship or residency status to: (1) rent residential real estate; and (2) to obtain employment.  The sample ballot and text of the proposed ordinance can be found here. 

According to an article in last Thursday's Fremont Tribune, the proposed ordinance would require anyone over the age of 18 to obtain an "occupancy license."  Current residents of rental properties would not be required to get a license until they change addresses.  If a child turned 18 while living in a rental property, they would also be required to obtain a license.  The ordinance would also apply to new residents in assisted-living facilities and nursing homes.

To obtain a license, a person would complete an application and pay a $5 fee to the Fremont Police Department.  The applications would require the prospective renter to verify his or her citizenship or residency status.  Those unable to verify their status would be denied an occupancy license.

Fremont, a town of approximately 25,000 residents located 20 minutes northwest of Omaha, seems an unlikely hotspot in the illegal immigration debate.  The homepage for the city calls it "livable and progressive."  However, two of the main employers in the area are meatpacking plants owned by Freemont Beef and Hormel.  Slaughterhouses and meatpacking plants throughout the Plains states are chiefly manned by immigrants, frankly because the jobs are so dangerous, disgusting, and low-paying that they are difficult to fill with people who have more options.  According to Huffington Post, attracted by those jobs, the number of Hispanic people living in Fremont rocketed from 165 in 1990 to 2,060 in 2009. 

Beyond the obvious issues related to racial profiling and discrimination, this proposed ordinance could have devastating practical consequences if it were uniformly enforced.  (And of course, if it isn't uniformly enforced, the racial profiling/discrimination issues just get worse.)  For example, read the perspective of a nursing home administrator in Fremont here.  What other uses will the Fremont Police Department make of the applications?

The good news -- if the ordinance passes today's vote, the ACLU of Nebraska is considering filing an immediate injunction to prevent its enforcement.  

I love Nebraska – my mother's hometown is 10 minutes south of Fremont and I've been there many times – but I agree with both the Huffington Post and the Daily Paul.  This proposed ordinance is a mind-bogglingly bad idea.

Update:  The Fremont Tribune reported on June 22nd that the ordinance passed 57% to 43%. 

Tanya Marsh

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Crafting the First-Year Property Course

Newbie property law prof here.  This summer is marked by great transition for me and my family – from practice to the academy and from Indianapolis to Winston-Salem.  There is so much to do and think about that it is sometimes difficult to figure out where to start.  Just when I thought I had a handle on things, I had the opportunity to attend two AALS conferences back-to-back.  I just got back from the New Law Teachers Conference, which I will blog about later.  The previous weekend was spent in New York City, at the AALS Mid-Year Workshop on Property.

The Mid-Year Meeting was a really fantastic opportunity to meet (in person) some of the people who so generously helped me in this process.  The weekend was also chock-full of interesting ideas. 

The first plenary session focused on what should be included in the introductory Property course.  The panelists were Professors Al Brophy (UNC), Henry Smith (HLS), Stewart Sterk (Cardozo), and Molly Van Houweling (Berkeley).  They each offered a different and interesting perspective.  Professor Brophy discussed incorporating some non-traditional cases to highlight ethnic and racial tensions in the history and development of American property law.  Professors Smith and Van Houweling each presented their thoughts on the inclusion and exclusion of certain topics in the first year course, particularly how to handle intellectual property.  Finally, Professor Sterk shared his approach, which emphasizes asking students to role-play as lawyers and apply doctrine to client counseling problems.

More after the jump.

Continue reading

Thoughts On Stop the Beach (Steve Eagle)

From Steve Eagle (George Mason):

Based on existing Supreme Court jurisprudence and the oral argument, until a few weeks ago I was predicting that the Court would find no taking in Stop the Beach Renourishment and then stop. Having held unanimously that there was no taking, the Court didn’t stop.

I agree in principle with Justice Scalia’s assertion that “There is no textual justification for saying that the existence of the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation [Slip Op. at 8.] But here it is simply unnecessary to discuss the issue. The Takings Clause is violated when there is (a) a taking of property, and (b) a failure to pay compensation. Since the Court said 8-0 that there was no taking, and since the requirements are in the conjunctive, the Court should have followed up by going to lunch. I agree with Scalia that sometimes the Court has to decide what a valid claim consists of before declaring that a claim failed [p. 13]. That would have been the case had the owner been deprived of property. I don’t think that Scalia is arguing that there should be a lesser standard for judicial takings than for legislative or administrative takings, so how can an act that would not be a deprivation of property if engaged in by those other branches be a judicial taking?

BTW– if the takings standard doesn’t “vary according to the branch of government,” why didn’t the plurality join in Justice Thomas’ dissent from denial of cert. in Parking Association of Georgia, Inc. v. City of Atlanta, 515 U.S. 1116 (1995) (decrying that Nollan-Dolan established different standards for legislative and administrative takings)?

I am a fan of substantive due process for property deprivations not equating to takings (e.g., government builds a 10-foot fence with no opening one-foot beyond your property line). See 2007 B.Y.U. L. Rev. 899. But Justice Kennedy’s continuing infatuation with due process where the Takings Clause clearly is germane is puzzling. Given the Circuit Courts’ proclivity to invoke the stomach pumping “shocks the conscience” standard of Rochin v. California, 342 U.S. 165, for SDP claims involving land regulation, it’s hard to project that SDP would provide effective protection for property owners.

I do think Kennedy has the better part of the argument when it comes to the fact that the State would have to pay just compensation if there were a judicial taking. [Kennedy, pp 3-4, 8.]  Scalia’s rejoinder that the Court could “simply reverse the Florida Supreme Court’s judgment that the [Act] can be applied to the property in question” ducks the point that the Act would not work an impermissible taking, rather, it would work a compensable taking. [Scalia, p. 18.] Kennedy also scored a point with me when he pointed out that the problems with the Williamson County ripeness test, noted in the 4-Justice concurrence in San Remo Hotel, were the result of “reaching out” prematurely. [Kennedy, p. 9.]

In short, I’m well disposed to the Scalia judicial takings approach in principle. But as Justice Breyer said, it’s “better left for another day” [Breyer p. 1]

Posted by Ben Barros

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Supreme Court Rules in Stop the Beach

The Supreme Court today ruled in the Stop the Beach judicial takings case.  In an opinion by Justice Scalia, the Court rejected the judicial takings claim.  The Court's judgment was unanimous, but there were fragmented opinions on various issues, as described further below.  For background on the case, see this post.  For a recap of the oral argument, see this post.  For a great description of the social conflicts behind the dispute, see this article from the New York Times Magazine. 

I will be updating this post with analysis of the Court's opinions and with links to commentary about the case.

A Quick Summary of the Opinions

Justice Scalia delivered the Opinion of the Court, which was unanimous, for Parts I, IV, and V.  These parts together hold that the Florida Supreme Court's opinion was sufficiently consistent with Florida caselaw that the takings claim should be rejected.  Justice Scalia's opinion, however, is not the Opinion of the Court for Parts II and III.  These Parts reach the issue of judicial takings, and assert that under the correct circumstances, a judicial action can violate the takings clause.  Justice Scalia was joined in these Parts by the Chief Justice and Justices Thomas and Alito.  Justice Stevens did not participate in the case (because he owns Florida beachfront property), and the four other Justices (Kennedy, Ginsburg, Breyer, and Sotomayor) declined to join in Parts II and III of Justice Scalia's opinion.  Justice Kennedy wrote a concurring opinion, joined by Justice Sotomayor, and Justice Breyer wrote a concurring opinion, joined by Justice Ginsburg.  Together, these concurrences suggest that it was unnecessary to reach the issue of whether it is ever possible to have a judicial taking.  So on this critical issue, the Court split 4-4.  Because of the tie, Justice Scalia's opinion is not controlling precedent on this issue.  The overall issue of whether there can ever be a judicial taking is therefore still open as a matter of Supreme Court caselaw. 

Analysis

(1) What is the standard for judicial takings?  As noted above, the big question of whether there can ever be a judicial taking is still open.  If the ultimate answer to this question proves to be "yes", what would be the standard for deciding whether there is a judicial taking?  Four justices objected to even considering this issue, but Justice Scalia's opinion proposes the following standard:  "If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property . . ." (Slip op. at 10, emphasis original).  Later in his opinion (at 23), Justice Scalia rejects the standard suggested by Justice Stewart's Hughes v. Washington concurrence that a decision that "constitutes a sudden change in state law, unpredictable in terms of relevant precedents" would be a taking. So the focus of Justice Scalia's proposed standard is on whether there is an established right of private property, not on whether the outcome was predictable.  There might often be a congruence between clear establishment of a right and predictability of an outcome, but Justice Scalia gives a few examples (at 23-24) where that might not be the case.

(2) What is the future of judicial takings litigation?  One fear about allowing judicial takings is that the federal courts will become the courts of last resort for property disputes.  Justice Scalia suggests that a litigant who loses before a state supreme court can only raise a judicial takings challenge through a cert petition to the United States Supreme Court. (Slip op. at 23).  But property owners who were not a party to the original litigation could challenge the state supreme court's decision as a judicial taking in the lower federal courts:  "And where the claimant was not a party to the original suit, he would be able to challenge in federal court the taking effected by the state supreme-court opinion to the same extend that he would be able to challenge in federal court a legislative or executive taking previously approved by a state supreme-court opinion." (at 23).  I am not at all an expert on Williamson County and San Remo, so I can't yet fully evaluate the impact of this statement.  And, of course, Justice Scalia's opinion is not binding on this point.  But Justice Scalia certainly seems to invite property owners to (a) bring cert petitions claiming judicial takings if they lose in state supreme court; even though cert petitions have a low chance of being granted, a petition claiming a judicial taking would get a sympathetic read from at least some of the Justices' chambers; and (b) bring lower court judicial takings cases if they were not litigants before the state supreme court.  These invitations, combined with the lack of clear guidance on any of these issues from the Court, suggest that we will see a lot of litigation on these issues in the near future.

[UPDATE:  Some further thoughts about the litigation that we're likely to see.  First, I think that state supreme courts might be especially careful after Stop the Beach to paper up their property opinions well.  As the actual outcome in Stop the Beach showed, state property law often allows a substantial amount of wiggle room.  Another way of putting this is that state law property rights might not always be as clear as many people suppose.  Second, it may be that the statute of limitations has not yet run on judicial takings claims based on some recent state supreme court decisions.  I don't have any specific case in mind, but property owners who were not parties to the initial litigation might start bringing claims in the lower federal courts.  Third, although the denial of cert would preclude a takings claim by the litigant in the state supreme court, the cert denial would have no precedential value, so every cert denial in a judicial takings case might be followed by claims brought in the lower federal courts by similarly situated property owners.  Fourth, these claims are going to be very challenging for the lower federal courts.  Not only is the standard for judicial takings unclear, but the procedural propriety of bringing judicial takings claims in the lower federal courts is not even clear -- Justice Scalia suggested that these claims could be brought, but his opinion is not controlling precedent on this point.  It could turn out in some case down the road that these kind of claims cannot be brought in federal court.  Faced with this mess, lower federal courts would do well to do what the Supreme Court ultimately did in Stop the Beach:  look for some precedential support for the state supreme court opinion that is being challenged, and reject the constitutional challenge.] 

(3) Justice Kennedy's concurrence could be very important.  Justice Kennedy raises a number of interesting issues in his concurrence.  I want to focus for now on just one.  Consistent with his approach in a number of other takings cases, Justice Kennedy has advocated for a relatively robust role for due process analysis.  The most important statement in Justice Kennedy's concurrence might be this:  "The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is 'arbitrary or irrational' under the due process clause." (Slip op at 4).  Like Justice Scalia's proposed judicial takings test, this one focuses on clearly established property rights.  So it is possible to count six votes for the proposition that a state supreme court opinion that eliminates clearly established property rights is unconstitutional:  the Chief Justice and Justices Scalia, Thomas, and Alito on judicial takings grounds, and Justices Kennedy and Sotomayor on due process grounds.  I also think it is very interesting that Justice Sotomayor joined Justice Kennedy's opinion, rather than Justice Breyer's.  This may be a hint that Justice Sotomayor may be more protective of property rights than many of the Court's liberal justices have been over the last few years.  It is worth remembering in this context that both Justice Brennan and Justice Marshall wrote a number of takings opinions that were very pro-property owner (e.g., the San Diego Gas & Electric dissent by Justice Brennan, the Loretto opinion by Justice Marshall).

(4) Justice Stevens may have been missed by the pro-government side.  Justice Stevens has been the intellectual leader of the pro-government side on regulatory takings issues since at least 1987.  This is speculation (though informed speculation), but I would have expected Justice Stevens to have made the case against recognizing a doctrine of judicial takings had he not recused himself.  Justice Breyer was satisfied with making the case that this issue shouldn't be decided now.  I think that Justice Stevens would have said more. [UPDATE:  Tony Mauro at the BLT has some additional thoughts on the impact of Justice Stevens' recusal].

(5) Potential impact on the broader regulatory takings issue.  There are two notable things about the plurality portion of Justice Scalia's opinion for regulatory takings more broadly.  First, it continues to emphasize the concept of equivalence that has been a theme in recent regulatory takings cases.  By "equivalence" I mean the idea that a regulation or other government action is a taking if it is the equivalent of an exercise of eminent domain.  (See slip op. at 8).  This idea was a major theme in Lingle v. Chevron.  I think that this is a potentially important concept in that it may circumscribe the scope of regulatory takings - regulations that lead to a total diminution in value of property are easy to equate to an exercise of eminent domain; regulations that result in a lesser diminution in value seem much less like the equivalent of an exercise of eminent domain.  Second, Justice Scalia's opinion includes a shot across the bows of state supreme courts that might want to use the background principles exception from Lucas to insulate a regulatory action from a takings claim.  After quoting the relevant language from Lucas, he states that "A constitutional provision that forbids the uncompensated taking of property is quite simply insusceptible of enforcement by federal courts unless they have the power to decide what property rights exist under state law." (Slip op. at 22).  In other words, in Justice Scalia's view, federal courts shouldn't be too deferential to state court characterizations about the scope of property rights.

(6) Some classic Scalia.  In taking on Justice Breyer's argument that there was no need to address the core judicial takings issues, Justice Scalia makes a reference to a classic tongue twister:  "JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?) or (b) answer in the negative what he considers to be the 'unnecessary' constitutional question whether there is such a thing as a judicial taking."  Justice Scalia treats the question of the woodchuck as open, but it of course has an answer:  a woodchuck would chuck as much wood as a woodchuck could chuck if a woodchuck could chuck wood.

(7) The Euclid cameo.  Michael Allan Wolf, who knows a lot about Euclid, just pointed out to me that Justice Scalia badly miscites Euclid - see the slip opinion at p. 12, describing Euclid in a parenthetical as "recognizing that block zoning ordinances could constitute a taking, but holding that the challenged ordinance did not do so."  As Michael pointed out, this is clearly wrong on a number of levels.  Most importantly, in my humble opinion, is that Euclid is not a takings case.  It is a substantive due process case, as Justice Kennedy suggests in his concurrence (slip op. at 3).  I really don't think that it is helpful to Justice Scalia's broader agenda to treat Euclid as a takings case, and in any event it is simply wrong to do so. 

A couple of random points.  First, in my first big post about this case, I wrote:  "I would guess that Justice Scalia was instrumental in obtaining the cert grant.  I predict that the Supreme Court will find a taking in Stop the Beach and that Justice Scalia will write the opinion of the Court."  Well, I was at least half right.  My predictions after oral argument were a little more on target re: the outcome.  Second, it has frequently been observed that blogs have compressed the cycle of analysis on Supreme Court opinions.  Having just tried to put together some cogent thoughts in about three hours really drove that point home for me.  Third, Justice Scalia showed academics no love at all, and did not cite the leading law review articles on judicial takings.  Justice Kennedy did cite some, but not all, of the leading articles on point.  Fourth, I noted before that I advocated in the past (albeit as a law student) for federal judicial takings review of state court property decisions.  Here is what I said in my student note (63 Fordham L. Rev. at 1881-82) on the judicial takings standard: 

The Court should explicitly adopt Justice Stewart's Hughes v. Washington test, while avoiding the problematic "reasonable expectations."  State court findings in just compensation cases should be reviewed to ensure that they define property using legitimate statutory and common law precedent, rather than using the inherent flexibility of common law to define property rights out of existence.  If the state courts previously have recognized a property interest, either between private individuals or between an individual and the state, then the state cannot destroy that interest without compensation.  Such a requirement would accommodate the desire to have the state's property law serve as the primary source of the definition of property, while maintaining the protection of liberty required by the Just Compensation Clause.

This is somewhat close to the standard that Justice Scalia proposed, which is kind of cool.  The problem is that I'm not sure that I still agree with what I said as a law student.  I'll have to sort that out sometime soon.

Further thoughts on the case from around the blogosphere and the media (to be updated periodically):

Lior Strahilevitz has a thoughtful analysis of the question raised by Jerry Anderson (on the property listserv and in the comments here) at the University of Chicago Law School Faculty Blog.

Timothy Sandefur comments on the case at the Pacific Legal Foundation's blog. [UPDATE:  Tim has a second post with some further thoughts on the case.]

Josh Blackman is happy that Justice Sotomayor may be more protective of property rights than Justices Breyer or Ginsburg.

Robert H. Thomas collects some links at the Inverse Condemnation Blog.

Ilya Somin comments on the case at the VC.

David Bernstein comments on the substantive due process aspects of the case at the VC here and here.

Ilya Shapiro of the Cato Institute discusses the case.

NPR's Nina Totenberg has a story on the case.

Steve Eagle comments here at PropertyProf.

UPDATING the list of commentary a few days later:

Eduardo Penalver has some excellent thoughts at Prawfs.

Tim Mulvaney has an op-ed on the case.

Ben Barros

[photo of Destin, Florida beach via Wikicommons]

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Rose Cuison Villazor on Gross' What Blood Won't Tell

Rose Cuison Villazor has another new essay up on ssrn, "Reading between the (Blood) Lines," which appeared in the Southern California Law Review.  It responds to Ariela Gross' new book, What Blood Won't Tell.  Here is the abstract:

Legal scholars and historians have depicted the rule of hypodescent - that "one drop" of African blood categorized one as Black - as one of the powerful ways that law and society deployed to construct racial identities and deny equal citizenship. Ariela J. Gross’s new book, "What Blood Won’t Tell: A History of Race on Trial in America," boldly complicates the dominant narrative about hypodescent rules in legal scholarship. On the one hand, "What Blood Won’t Tell" argues that the legal and social construction of race was far more complex, flexible and subject to manipulation than the scholarship regarding the rules about blood distinctions has suggested. On the other hand, "What Blood Won’t Tell" highlights circumstances, both historically and in recent memory, of the ways in which blood distinctions played crucial roles in shaping the identity of people of color, including indigenous peoples. Importantly, "What Blood Won’t Tell" also examines how blood quantum rules relate to contemporary efforts to reassert indigenous peoples’ sovereignty and claims to lands.

This Review highlights the important contributions of "What Blood Won’t Tell" to our understanding of the racial experience of indigenous peoples and the contemporary methods used to remedy the present-day effects of indigenous peoples’ colonial experience. "What Blood Won’t Tell" advances a more robust account of the racialization of people of color through rules about blood differences in at least three ways. First, it places the colonial experience of indigenous peoples within the larger historical contexts of racial subordination and efforts to promote White domination and privilege. Second, it underscores the federal government’s ongoing responsibility to counteract the long-standing effects of its past misdeeds by addressing indigenous peoples’ unresolved claims to lands that have been stolen from them. Third, it allows us to take a careful look at the relationship between blood quantum rules and the right of indigenous peoples to exercise self-determination. Taken together, these three perspectives reveal the immense challenges inherent to remedying the long-term effects of the racialization and colonization of indigenous peoples. 

Post by Alfred Brophy

Rose Cuison Villazor on Oyama

Rose Cuison Villazor  has a new article up on ssrn, "Oyama v. California: At the Intersection of Property, Race and Citizenship."  It is forthcoming in the Washington University Law Review.  Rose's abstract is as follows:  

Oyama v. California was a landmark case in the history of civil rights. Decided in January 1948, Oyama held unconstitutional a provision of California’s Alien Land Law, which allowed the state to take an escheat action on property given to U.S. citizens that had been purchased by their parents who were not eligible to become citizens. At the time, the country’s naturalization law prohibited Japanese nationals from becoming U.S. citizens. Thus, the Alien Land Law applied primarily to Japanese nationals and Japanese Americans. Critically, Oyama recognized that the state’s attempted taking of a citizen’s property because his father was Japanese constituted a violation of his equal protection rights. In so doing, Oyama created a paradigm shift in the treatment of property rights of Japanese Americans. Despite its significance, Oyama has received surprisingly little attention in legal scholarship. Leading constitutional and property law casebooks have virtually ignored the case. This Article seeks to correct that oversight. As this Article argues, Oyama fills a neglected void in our collective historical understanding of race, property law, and citizenship. Equally important, it provides a timely normative and prescriptive response to contentious contemporary debates about the validity of state and local law restrictions on leaseholds against a select group of noncitizens, namely undocumented immigrants. By calling attention to the historical and contemporary contributions of this largely unnoticed case, this Article argues why Oyama should be included in the canons of property and constitutional laws.

Posted by Alfred Brophy

Off to AALS

I'm off to New York for the AALS mid-year Property meeting.  I hope to see many of you there.

Ben Barros

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Measuring Impact of Property Scholars

A few weeks ago I posted Brian Leiter's list of most-cited property scholars.  As Nicholas Blomley and I discussed in the comments to that post, Professor Leiter's list is parochial by design:  it includes only professors at US law schools.  It therefore excludes some scholars who have had a large impact on U.S. property scholarship, such as Hanoch Dagan (because he is not at a U.S. law school), or Bill Fischel (because his appointment is in economics).  Because the citation study is done using Westlaw's JLR database, the study also obviously focuses on impact on U.S. legal scholars, and excludes property scholars with high impact in other disciplines or in other countries.  All of this got me thinking about the following questions:

(1) Using Professor Leiter's methodology, are there any U.S. legal scholars who were missed?  The study measures journal citations from the past five years, so it captures the people who are most cited in recent scholarship, not the people who have the most citations overall.  I think that Patty Salkin would make the list.  Are there others?

(2) Sticking only with the JLR database, and therefore impact on U.S. property scholarship, but including academics from other disciplines and from non-U.S. law schools, who else might have had a large impact on U.S. property scholarship?  I just did a quick search on Elinor Ostrom, who had quite a few hits but not as many as I would have expected given the importance of her work.

(3) Widening the scope even further, would it be possible to measure the highest impact property scholars worldwide?  What databases could be used?

(4) Without strict reference to citation-based impact measures, who are the most important property scholars in non-U.S. law schools and in disciplines other than law?

Any thoughts on any of these questions would be very welcome.

Ben Barros

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It Makes a Great Gift!

Or at least a good addition to your school's library.  Amazon now (finally) has copies in stock of Hernando de Soto and Property in a Market Economy, edited by yours truly.

Ben Barros

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Singer on The Anti-Apartheid Principle in American Property Law

Joseph William Singer (Harvard) has posted The Anti-Apartheid Principle in American Property Law on SSRN.  Here's the abstract:

Recently, many federal courts have been interpreting civil rights laws to allow racially discriminatory treatment of customers in retail stores and racial and religious harassment of tenants and home owners by their neighbors. These courts are misinterpreting federal law and ignoring the will of Congress embodied in the Civil Rights Act of 1991 which clarified that market participants have the right to enjoy property and contract rights on equal terms. More important, these courts are wrongly assuming a background norm of negative liberty; they presume that we are free to engage in racial discrimination in market transactions unless statutes clearly and unambiguously limit our freedom. But this is a mistake.

Since the 1960s, the background norm has become a presumption that market participants are not allowed to treat people unequally because of race, religion, sex, or disability. Both federal and state statutes embody this norm and many statutes contain it explicitly. Even the Civil Rights Act of 1866 was amended in 1991 to provide that private persons are entitled to equal contract terms. We aspire to be a free and democratic society that treats each person with equal concern and respect. We now understand that this commitment not only entails the repudiation of feudalism and slavery but the abolition of apartheid, whether imposed by law or enacted by private persons exercising their property rights. Liberty does not mean the absence of restraint on action; it means the creation of a legal infrastructure of a free and democratic society.

Equal access to the marketplace without regard to race is now as fundamental a norm as is the abolition of feudal tenures. For this reason, the common law should be interpreted to include a background assumption that prohibits racial discrimination in housing or public accommodations. Unless statutes affirmatively grant stores the right to treat their customers differently on account of race, courts should presume that they have no such right. Unless statutes affirmatively grant individuals the right to harass their neighbors on account of race or religion, courts should presume that housing rights include the right to be free from such discriminatory harassment. Rand Paul was wrong to suggest that liberty demands freedom to reject customers because of their race; the very opposite is true. American property law now contains a fundamental anti-apartheid principle that ensures access to the marketplace without regard to racial discrimination and the federal courts should start acting on that foundational commitment.

Ben Barros

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Fennell on Possession

Lee Anne Fennell (Chicago) has posted Possession Puzzles on SSRN.  Here's the abstract:

This brief essay was delivered in slightly different form as the Third in the Wolf Family Lecture Series on the American Law of Real Property at the University of Florida Levin College of Law on March 17, 2010. In it, I use the foreclosure crisis as a springboard for exploring some foundational questions about the relationship between property rights and secure possession. Although the development of property rights is generally viewed as advancing security of tenure, this is true only up to a point; the ability to subdivide and alienate interests in property ultimately encompasses alienation of certain aspects of the option to remain in possession. Cutting back on property’s alienability comes at a high price, however – reduced access to the very possession one might hope to maintain. After framing the basic tradeoff between access and security, I examine some ways that both values might be pursued simultaneously through the further refinement of property rights.

Ben Barros

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Grimmelmann on the Internet as Semicommons

James Grimmelmann (New York Law School) has posted The Internet is a Semicommons on SSRN.  Here's the abstract:

The Internet is a semicommons. Private property in servers and network links coexists with a shared communications platform. This distinctive combination both explains the Internet's enormous success and illustrates some of its recurring problems.

Building on Henry Smith's theory of the semicommons in the medieval open-field system, this essay explains how the dynamic interplay between private and common uses on the Internet enables it to facilitate worldwide sharing and collaboration without collapsing under the strain of misuse. It shows that key technical features of the Internet, such as its layering of protocols and the Web's division into distinct "sites," respond to the characteristic threats of strategic behavior in a semicommons. An extended case study of the Usenet distributed messaging system shows that not all semicommons on the Internet succeed; the continued success of the Internet depends on our ability to create strong online communities that can manage and defend the infrastructure on which they rely. Private and common both have essential roles to play in that task, a lesson recognized in David Post's and Jonathan Zittrain's recent books on the Internet.

Ben Barros

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Wright on the Denominator Problem

Danaya C. Wright (Florida) has posted A New Time for Denominators: Toward a Dynamic Theory of Property in Regulatory Takings Relevant Parcel Analysis on SSRN.  Here's the abstract:

Despite the Supreme Court’s 25-years of fierce forays and rapid retreats in the battle over property rights and the takings clause, two intractable theoretical problems have eluded the Court’s attempts to provide guidance for state actors as to when a regulation will, in the words of Justice Holmes, “go too far.” Those two problems lie in identifying the relevant parcel against which a property restriction will be weighed (the parcel as a whole, relevant parcel, or denominator issue) and the relevance of the timing of a regulation in analyzing the extent and reasonableness of a landowner’s expectations of unregulated use for compensation purposes. The first is a question about how we identify the quantum of property “taken” by a regulation; is it one toothpick out of a very large bundle of property rights or is it the entirety of a relatively small bundle? The second is a question about the fairness of changing land-use regulations mid-stream, so that a person who purchased land under one regime might be entitled to compensation when a new, stricter regime significantly diminishes the uses she can make of her land. These two issues merge together when takings jurisprudence demands that we identify the relevant parcel at some regulatory moment in time. This article suggests that we should not be analyzing takings claims in single snapshot moments, but should instead look at actions the landowner has taken to make herself vulnerable to the supposed harms of regulations. This article challenges traditional takings jurisprudence and offers a better way to balance the legitimate interests of landowners with the needs of the public in regulating land uses.

Ben Barros

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Lovett on Rand Paul, Private Property, and Deep Water Horizons

John Lovett (Loyola/New Orleans) has an op-ed in the New Orleans Times Picayune on Rand Paul, Private Property, and the Deep Water Horizons spill.  The op-ed is thoughtful, provocative, and entertaining.  Here's one great passage:

One of the few silver linings of the Deepwater Horizon disaster is that it demonstrates that views like those of Rand Paul are basically immature, adolescent views of property. They remind me of teenagers who like to put up signs on their bedroom doors warning their siblings and parents not to enter at any cost.

Of course property rights serve many important values. They promote investment in resources and encourage industry. They protect privacy and individual autonomy. But there are many situations where property rights matter very little.

Read the whole thing!

Ben Barros

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