PropertyProf Blog

The Property Canon

In 2006, Prawfsblawg put together a "canons project," which attempted to compile a list of the most classic works in each legal discipline (Here's the link to the post on cannonical property works).  PropertyProfs own Ben Barros suggested the following list:

The Classics of the Moral and Political Theory of Property:

Locke, On Property
Rousseau, Discourse on Inequality
Bentham, The Theory of Legislation
Marx, Communist Manifesto

Conceptualizing Property Rights:

Wesley Hohfeld's Fundamental Legal Conceptions
Thomas C. Grey, “The Disintegration of Property”
Guido Calabresi & A Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral"

Great Contemporary Work on Property Theory:

Margaret Jane Radin, "Property and Personhood" and Contested Commodities
Joseph William Singer, “The Reliance Interest in Property”
Hernando de Soto, The Mystery of Capital
Charles A. Reich, “The New Property”
Milton Friedman, Capitalism and Freedom
William Fischel, The HomeVoter Hypothesis
Ronald Coase, "The Problem of Social Cost"
Garrett Hardin, "The Tragedy of the Commons"
Harold Demsetz, "Toward a Theory of Property Rights"
Lots of articles by Carol Rose and Richard Epstein -- it is hard to pick just one or two

Takings and Constitutional Property:

James Madison, "Property"
Joseph Sax, "Takings and the Police Power"
Frank Michelman, "Property, Utility and Fairness"
Bruce Ackerman, Private Property and the Constitution
Richard Epstein, Takings
William Michael Treanor, "The Original Understanding of the Takings Clause and Political Process"

In the comments thread at Prawfsblawg, others made equally adept suggestions.  My question for today is this:  With a decade's worth of hindsight, which articles from the early 2000's do we need to add to the canon? 

Steve Clowney

Schindler on the Land Use Regulation of Locavores

Sarah Schindler (Maine) has posted Of Backyard Chickens and Front Yard Gardens: The Conflict between Local Governments and Locavores (Tulane) on SSRN.  Here's the abstract:

Locavores aim to source their food locally. Many locavores are also concerned more broadly with living sustainably and decreasing reliance on industrial agriculture. As more people have joined the locavore movement, including many who reside in urban and suburban areas, conflict has emerged between the locavores’ desires to use their private property to produce food — for personal use and for sale — and municipal zoning ordinances that seek to separate agriculture from residential uses.

In this article, I consider the evolution of this conflict and its implications for our systems of land use, local government, and environmental law. Specifically, I investigate the police power rationales for the existence of ordinances that disallow urban homesteading in urban and suburban communities. I then demonstrate that public health, civic virtue, and free market principles can be used to justify the passage of ordinances that would expressly permit these behaviors. Central to this analysis is a discussion of the problems caused by industrial agriculture and the lack of access to locally produced foods — food insecurity, food deserts, obesity tied to processed foods, monoculture-induced environmental catastrophes, harm to animals, and greenhouse gas emissions — all of which could be alleviated, at least in part, through urban agriculture. In recognition of these changing conceptions of harm, some local governments have begun to pass ordinances expressly allowing gardens, chickens, and the sale of produce in residential areas. I conclude by considering what this movement toward loosening restrictions on the use of private property says more broadly about the decline of Euclidean zoning controls and the future of land use law.

Steve Clowney

Can Housing Projects Find Redemption?

The N.Y. Times chronicles the successful remodeling of an ugly, mid-century housing tower on the outskirts of Paris:

The tower was a natural candidate for the French wrecking ball after decades of neglect and decay, but tenants didn’t want to lose their homes. So an unusual question arose: might the building become a candidate for a different approach?  A competition was organized by Paris Habitat, the Paris Office for Public Housing, in 2005 to renovate the building. The challenge: to repair the tower’s crumbling infrastructure, upgrade its common spaces and its exterior, and — this was the most radical part — add more light and square footage to dark, cramped apartments, without changing the footprint of the building, which couldn’t be extended. Oh, yes, and to spend less money for all this than the cost of tearing the building down and then rebuilding.

Steve Clowney

The Pictures of Picturing Takings

Earlier in the week, the blog highlighted a great new article from Lee Fennell on takings jurisprudence.  The paper uses a series of diagrams to tease out and then bring order to some of the complexities of takings doctrine.  I just discovered that Lee has made the diagrams from her article publicly available on the U. Chicago web page.  Anyone interested can check out the Powerpoint slides at http://www.law.uchicago.edu/files/PT%20Slides%20+%20Table%20from%20Paper.ppt   (alternatively you can go to http://www.law.uchicago.edu/node/520/publications  and scroll down to the entry for Picturing Takings).  Wonderful stuff for the visual learners among us.

Steve Clowney

Kelly on Inclusionary Housing

Jim Kelly (Notre Dame) has posted Inclusionary Housing on a Global Basis (Journal of Affordable Housing and Community Development Law) on SSRN.  Here's the abstract:

This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices in a variety of other countries including India, Israel, Colombia and South Africa. The review welcomes this addition to the study of affordable housing programs across the developed world.

Steve Clowney

Property Prof Wins Journalism Prize

Daniel Sharfstein, property professor at Vanderbilt, has won the 2012 Lukas Book Prize for The Invisible Line: Three American Families and the Secret Journey from Black to White.  Sharfstein's book looks at the complexity and porous nature of the color line in American history.  Congratulations, Dan!

In addition to the stellar book, property profs may be interested in Al Brophy's thoughtful review of the book.

Steve Clowney

Turner on State Action Problems

Christian Turner (Georgia) has posted State Action Problems on SSRN.  Here's the abstract:

The state action doctrine is a mess. Explanations for why federal courts sometimes treat the private actions of private parties as public actions subject to the Constitution, like the Supreme Court did in Shelley v. Kraemer, are either vastly overinclusive or fail to explain our law and values. A better approach is to understand the state action doctrine in institutional terms. I introduce a two-step, institutionally focused state action theory that is a natural consequence of a broader public/private theory of legal systems. In the first step, a court identifies a “state action problem,” meaning a privately made law that is poorly governed by the ordinary rules governing the making of contracts. If a court finds a state action problem, it will proceed to the second step and decide whether courts have superior capacity to remedy the problem than do other governmental institutions. This theory captures important intuitions about the public regulation of private lawmaking that other approaches either ignore or fail to ground theoretically. In addition, it helps to justify why racial discrimination is often a decisive fact in finding state action, explains why the doctrine is rarely invoked, and provides a firm, theoretical foundation for a doctrine otherwise adrift in search of guiding principles.

Steve Clowney

Map of the Day: Most Common Last Names

National Geographic has published a really cool map that shows the 25 most common last names in each state:

Interactive Map of Surnames  - National Geographic Magazine.

Steve Clowney

New Eminent Domain Film

Last week I received an email promoting Battle for Brooklyn, a new film about the eminent domain battle over Atlantic Yards, "the densest real estate development in U.S. history.  The film may be of interest for property folks.  At the very least, it includes the most dramatic music ever heard in a property movie.

Steve Clowney

Ziff on the Numerus Clausus Principle

Bruce Ziff (Alberta) has posted Yet Another Function for the Numerus Clausus Principle of Property Rights, and a Useful One at That on SSRN.  Here's the abstract:

In recent years increased attention has been paid to the numerus clausus principle – the recognition of a limited, though not fully closed, set of property entitlements. An impressive number of rationales (eight by my tally) for that principle have already been offered. In this paper I claim that these arguments are incomplete. I argue that the presence of impediments to the termination of property rights suggests the need for caution in their initial recognition, because doctrinal mistakes cannot easily be corrected. On that view, numerus clausus serves as an instantiation of what is sometimes called the precautionary principle: an ounce of prevention is worth a pound of cure.

Steve Clowney

The Land Use Battle at NYU

The N.Y. Times runs a long essay by Michael Kimmelman that pushes back against NYU's plan to expand in the Washington Square neighborhood:

The storm over NYU 2031, as this latest expansion proposal is called, has escalated into one of the city’s most acrimonious land-use battles. No wonder. The plan is so clearly oversize that it’s hard not to see it as a stalking horse for what school officials figure they can get permission from the city to build. . . . 

And what does the neighborhood need? Among other things, open space, green space. The debate over the development of the two superblocks has turned a fresh spotlight on the underrated urban virtues of Washington Square Village and University Village — examples of how tower-in-the-park architecture, descended from Le Corbusier and widely discredited, can benefit an old neighborhood of brownstones . . .

As always, the paper of record has come up with a wonderful set of info-graphics that lay out what NYU is trying to do.  The essay, however, isn't particulalry persuasive.  Kimmelman argues, more or less, that NYU's plan is faulty because it threatens to destroy a park (where he happened to play as a child).  From the pictures, however, the park in question looks pretty brutal and the author even admits that "most people don’t even realize it exists."   This hardly seems like enough justification to stop NYU's vision. 

Steve Clowney

How to House the Homeless

The Web Urbanist has compiled fourteen "smart and sensitive" designs for providing the homeless with housing:

City officials spend a lot of time and energy worrying about how to keep homeless people off public furniture and out of certain common areas, when they should be considering how to better manage the issue of homelessness in general. One area of focus is homeless housing, whether simply meeting the immediate needs of people who live on the streets or providing a more long-term, forward-thinking transitional living spaces. These 14 designs for homeless housing provoke thought as to how we can meet the needs of disadvantaged people living in our own communities, and ensure that the situation is only temporary.

Steve Clowney

Fennell on Takings

Lee Anne Fennell (Chicago) has posted Picturing Takings (Notre Dame) on SSRN.  Here's the abstract:

Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task of finding our way through it has become more difficult, and yet more interesting, with the Supreme Court’s recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally.

Steve Cloweny

Isn't It a Property Issue?

The highest paid hedge fund manager -- one person -- last year made the same as:

• 17,000 pediatricians; or
• 85,000 school teachers; or
• 61,900,000 school meals for a year.

What is interesting to me is that our conception of property, by which I mean the appropriate subjects for discourse for those who dedicate their professional lives to teaching the law of property, no longer includes the facts above.

Today, it seems to me, discussion of the facts above is considered "political" rather than "legal" -- legal in this sense meaning a more precise, technocratic focus on legal doctrine.  In fact, I imagine a few readers of the facts above metaphorically rolling their eyes, and thinking somewhat disdainfully "Here it comes . . ."  It's not that you necessarily think the facts above are just or even optimal; it's just that this discussion doesn't belong here. 

My question is: why doesn't it belong here?

Historically, that hasn't always been the case.  Distribution of wealth and resources was considered very much a property issue in the convulsions that swept Europe between the 17th and 20th centuries, for example.  It's hard to imagine A Tale of Two Cities, for example, as a story devoid of property law issues.

Why has our focus narrowed?  What has changed?

Mark A. Edwards

 

Mapping the World's First Cities

Nate Berg looks that the geography of the earliest cities:

[New techniques show] that these very simplistic, environmentally-driven models for where people should live long term can fail very clearly when places develop a meaning that goes beyond this environmental determinism," Ur says. "Clearly this place had some cultural meaning, some cultural significance that we don’t fully understand."

Steve Clowney

Saxer on Managing Water Rights

Shelley Saxer (Pepperdine) has posted Managing Water Rights Using Fishing Rights as a Model (Marquette Law Review) on SSRN.  Here's the abstract:

This Article addresses the need to view water rights as licenses subject to government revocation, without just compensation, in the same way that fishing rights are viewed as licenses subject to government management. It focuses specifically on the methods used to address water resource allocation in the Sacramento-San Joaquin River Delta in California, and on fish allocation issues in the Pacific Northwest. It explores property rights in water and fish, particularly in regard to Fifth Amendment takings challenges when government regulations diminish water rights and fishing rights. The Article concludes by recognizing that both water and fish resources should be managed as ecosystems and governed by the public trust doctrine, and rejecting private property rights in either fish or water as a violation of the public trust doctrine, in which public resources are given away to private interests.

Steve Clowney

Property in Church Pews

Mark Roark points us toward this delightful discussion of church pews and servitudes:

In general, the entitlement to seating in a church in English Common Law was perceived to be a common right of the parishioners.  That is, the community held the same equal right of access to sit wherever they like.  But some instances warranted greater certainty of seats for some over others.   So how does one enforce such expectations (you know, without being so tacky as having the pastor withhold holy communion from someone that won’t agree) — property. And particularly, either creating a servitude or a prescriptive claim.

Steve Clowney

Bowers & Carpenter on Challenging the Narrative of Conquest

Amy Bowers and Kristen Carpenter (Colorado) have posted Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association (book chapter) on SSRN.  Here's the abstract:

In Lyng v. Northwest Indian Cemetery Protection Association (1988), the Supreme Court held that it would not violate the Free Exercise Clause for the U.S. Forest Service to build a road through the “High Country,” an area that is sacred to Yurok, Karuk, and Tolowa Indians living in Northern California and Southern Oregon. Unable to show “coercion” of their religious beliefs, the Indian plaintiffs could not rely on the First Amendment to protect their interests in aboriginal territory now owned by the United States. As Justice O’Connor wrote: ‘‘Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.’’ Scholars have criticized the case as narrowing individual Free Exercise rights and expanding the government’s property rights, to the detriment of religious freedoms. While Lyng deserves this notoriety, an exclusive focus on defects in the holdings obscures other important dimensions of the case. In particular, the Supreme Court’s opinion comes close to silencing altogether the Indians’ perspective on their sacred High Country. Law and religion scholarship, with few exceptions, also ignores tribal voices both on the religious practices and advocacy strategies that were so key to the Lyng case and its aftermath. Indeed, the Forest Service road was never built and the tribes continue to practice their religions in the High Country.

This article offers a tribally-centered version of Lyng, one that is rarely told, at least outside of tribal communities. Based on interviews with tribal members who participated in the case, as well as interdisciplinary research into the anthropology and religion literature, this is a story of cultural revival fueled by the Indian way of life. It is a story of a community forced to defend itself against the assimilationist agenda of the federal government — and developing a contemporary political identity in the process. It is a story of the inextricable relationship between Indian people and lands, in which the Tribes’ attachment to their sacred sites ultimately triumphed over the Supreme Court’s narrow application of religion and property laws. In the final analysis, we argue, the Indian story of religious and cultural persistence has prevailed over Lyng’s ostensible narrative of conquest. Today, as Lyng’s doctrinal legacy threatens to undermine advances made under the Religious Freedom Restoration Act of 1993, the broader story told here is potentially revealing for everyone concerned with religious liberties in the United States.

Steve Clowney

I'm Watching Live As Protestors Are Removed From Public Property

As I did 3 nights ago, I'm watching live at http://www.ustream.tv/timcast as the New York Police Department forcibly prevent people from exercising their 1st Amendment rights on public space.  It's an amazing experience to sit in my house in Minnesota, watching in real time as police and protestors confront one another in New York City.  The democratization of media is astonishing.  The link above is to 'Timcast'; Tim is apparently an intrepid independent reporter who has been streaming and commenting live on police / protestor confrontations.  The tension of his broadcasts can be excruciating.  I spend half the time worrying that he's going to get hurt.

As they did 3 nights ago, the police drove the peaceful protestors from the park (this time Union Square Park) and barricaded it.  The park was closed to the public.  It was an extremely odd spectacle, because in essence dozens of police became the occupiers of the park instead, standing awkwardly as hundreds of people watched them from across the police barricades.  At least tonight was much less violent than 3 nights ago.  The only apparent medical issue this time was a protestor who went into labor.  3 days ago one woman was clobbered into a seizure, and many others were injured.

I understand that some occupy protestors come across as self-righteous and naive.  So what?  Find me dissidents in history who haven't seemed self-righteous or naive.  They have a legitimate point of view that they have expressed peacefully and often very, very eloquently.  Isn't the purpose of the 1st Amendment to protect the unpopular, peaceful expression of dissent?  And frankly, I don't think their speech is all that unpopular.  I, for one, completely agree that far too much economic and political power is concentrated in the hands of the very people who triggered our economic crisis, and I'm deeply grateful that these people are making real sacrifices to say it. 

To me it seems that the exercise of state power in this instance is directly related to the content of the speech being prevented.  This is no mere time, place and manner restriction.  When else are people prevented from peacefully congregating in public parks in Manhattan on a nice evening?  And it goes far beyond evictions from parks.  As the New York Times has been reporting, occupy activists are subject to constant harassment and surveillance.

I am deeply troubled by the repression of democratic dissent on public property.  Are you?  It makes me wonder what, exactly, I should teach my property students this semester about the use of public space to disseminate speech.  Will these events effect in any way what you teach your property students?    

Mark A. Edwards

People Living in Slums Across Africa Protest Forced Evictions

"Thousands of slum dwellers including those under threat from forced eviction are taking part in a week of action across Africa supported by Amnesty International and partners.

Activists in Chad, Ghana, Kenya, Nigeria, Egypt and Zimbabwe will call on their governments to stop forced evictions and make sure that people living in slums have equal access to water, education, health care and other essential services.

'Hundreds of thousands of people across the continent are left homeless each year by forced evictions. In most cases, these evictions are conducted with complete disregard for international law and even the most basic human rights standards,' said Erwin van der Borght, Amnesty International’s Director for Africa."

More here.

Mark A. Edwards