PropertyProf Blog

Yael Lifshitz on Rethinking Original Ownership

Yael Lifshitz has posted Rethinking Original Ownership, forthcoming in the University of Toronto Law Journal. This work is related to Yael's doctoral dissertation in New York University's JSD Program. Here is the abstract:  

At the genesis of property, an initial allocation of entitlements takes place. Existing property scholarship identifies two main rules for assigning original ownership – ‘first possession’ and ‘accession’ – and positions them one against another. This article challenges the conventional binary division and the dominance of either first possession or accession as ‘pure’ allocation principles, arguing instead that the ownership of new resources is often allocated through hybrid mechanisms that combine the two rules. This article offers an analysis of hybrid rules and their utility through a novel and contemporary case study of the ongoing allocation of property in wind energy. 

Odinet on Virtual Property and Secured Credit

Chris Odinet (that's me!) (Southern) has posted BitProperty and Commercial Credit (Washington University Law Review) to SSRN. Here's the abstract:

In the past several years the growth of virtual property in today’s economy has been explosive. The everyday use of virtual assets ranging from Twitter and Facebook to YouTube and virtual world accounts is nearly absolute. Indeed, by one account Americans check social media over 17 times per day. Further, a growing number of savvy virtual entrepreneurs are reporting incomes in the six and seven figure range, derived solely from their online businesses. Nevertheless, although the commercial world has come to embrace these newfound markets, commercial law has done a poor job of keeping up. Scholars have argued that laws governing everything from taxation, to bankruptcy, to privacy rights have not kept pace with our ever-changing virtual world. And nowhere is this truer than in the law of secured credit. Doubtlessly virtual property has come to represent significant wealth and importance, yet its value as a source of leveraged capital remains, in large part, untapped. This unrealized potential is not without good reason; the law — specifically Article 9 of the UCC and the law of property more broadly — suffers from a number of deficiencies and anomalies that make the use of virtual property in secured credit transactions not only overly complex and expensive, but almost entirely untenable. This Article shines light on these shortcomings, and, in doing so, advances a number of guiding principles and specific legislative recommendations, all geared toward a reformation of the law of secured credit in virtual property.

Stein on Chinese Real Property Law and Practice

Gregory Stein (Tennessee) has posted Chinese Real Estate Law and the Law and Development Theory: Comparing Law and Practice (Florida State Journal of Transnational Law & Policy) on SSRN. Here's the abstract:

China did not adopt a modern Property Rights Law until 2007, which means that most modern real estate development occurred before there was a comprehensive property law to govern it. Moreover, business conventions in China frequently diverge from published laws, and the rules that professionals follow do not always comply with legal requirements. This article addresses how real estate professionals in China contend with these legal inconsistencies and uncertainties. It also asks whether China is disproving the traditional law and development model, which holds that transparent property and contract laws are a prerequisite to robust economic development.

Part II introduces some of the common Western misconceptions about Chinese real estate law and business. Part III presents examples of how three specific Chinese business practices have come to differ in significant ways from Chinese real estate law. Part IV concludes by noting the ways in which China calls into question the widely accepted model of law and development.

 

Alexander on American Property Law Doctrine

Gregory Alexander (Cornell) has posted Five Easy Pieces: Recurrent Themes in American Property Law (University of Hawaii Law Review) on SSRN. Here's the abstract:

The title of my article, "Five Easy Pieces," may not resonate with those of you who are too young to remember Jack Nicholson as a budding young movie star cut out of the James Dean mold. For those who do remember, it is, of course, the title of one of Nicholson's early (and, to my mind, greatest) movies. Jack's five easy pieces were piano pieces, easy for him to perform, less so for others. There was a certain irony about the word "easy" in the title. The irony lay not only in the fact that just about everyone else consider those pieces difficult, but, more deeply, because those piano pieces were the only pieces of the life of Bobby Dupea, the character whom Jack portrayed, that were easy for him. Life as a whole, the big picture, was one great, almost impossible challenge for him.

My five easy pieces have their own ironic twist. They are rather different but equally challenging in their own ways that first-year law students here will readily recognize. My pieces, this piece, is really aimed at them. The pieces I will discuss are five recurrent themes in American property law, leit motifs, to continue the metaphor from the Nicholson movie, that run throughout American legal doctrines. These themes provide a way of structuring all of property law, adding coherence to what so often appears to law students as an unintelligible rag-tag collection of rules and doctrines that defy any attempt to construct an overarching framework for analysis. I have given five simple labels to these recurrent topics: "conceptualizing property," "categorizing property, " "historicizing property," "enforcing property," and "de-marginalizing property." We begin with how we conceptualize property.

Illegal Property Tax Foreclosures in Detroit

Check out this really fascinating (and disturbing) article about research conducted by Bernadette Athene (Chicago-Kent, currently visiting at Chicago) on illegal property tax foreclosures in Detroit:

This week was the 11th anniversary of Hurricane Katrina.  Over the years, many have said that Detroit is experiencing a hurricane without water.

Like with Katrina, the property tax foreclosure crisis in Detroit has wiped out entire neighborhoods inhabited by poor and working-class black people. From 2011-15, the Wayne County treasurer foreclosed upon approximately one in four Detroit properties for nonpayment of property taxes.

In fact, Detroit has one of the highest number of property tax foreclosures any American city has had since the Great Depression. Most important, once foreclosed properties are vacated, they are often vandalized, burned down or stripped of all valuable materials, creating a flood of blighted properties that decimate communities by reducing property values, attracting crime and causing those who can to evacuate.

There is a debate about the origins of Detroit’s property tax foreclosure crisis.

Popular narratives have focused on a culture of lawlessness in which property owners have cheated the city by not paying their property taxes and then devising ways to avoid foreclosure.

Some have welcomed the record number of property tax foreclosures as a sign that Detroit, at long last, is establishing law and order. But, I recently co-authored a study titled “Stategraft” that demonstrates that Detroit’s unprecedented property tax foreclosure rate is indefensible because property tax assessments in Detroit are, in fact, illegal.  

Michigan’s  Constitution clearly decrees that a property’s assessed value cannot exceed 50% of its market value. In our study, we find that Detroit’s assessor is flagrantly violating this vital state constitutional provision. Consequently, contrary to popular narratives, it is the city that is stealing from Detroit property owners through illegal assessments and inflated property tax bills, and not the other way around. And while the city has reassessed properties during the last two years, those actions have not been enough to bring most assessments in line with the Michigan Constitution. 

To investigate whether property tax assessments in Detroit are illegal, we use citywide property sales and assessment data for 2009-15. As required by Michigan case law and statute, we included only arm’s length transactions in our analysis, and we find that, in 2009, 65.5% of the properties sold violated the state constitutional assessment limit.  In subsequent years the numbers were equally shocking: 2010 (84.7%), 2011 (54.6%), 2012 (71.4%), 2013 (78.2%), 2014 (83.2%), 2015 (64.7%).

The property tax assessments were not only above the legal limit, but they also exceeded it by a substantial sum. For instance, in 2010, assessments were, on average, 7.3 times higher than the legal limit. In 2015, assessments were, on average, 2.1 times higher than the legal limit.

In all years studied, the illegality was most pronounced for lower-valued properties. That is, the city is more likely to assess modest homes at illegal levels than it is more expensive homes, leaving the most vulnerable homeowners drowning in injustice. 

Detroit’s mayor, Mike Duggan — a former prosecutor — acknowledged that “for years, homes across the city have been over assessed,” and tried to remedy this in 2014 and 2015 by implementing assessment decreases for most of the city, ranging from 5% to 20%.

Our study shows that illegal property tax assessments nevertheless persist for lower-valued properties despite these reductions. For example, in 2015, properties with the lowest values were, on average, assessed at 4.8 times the legal limit, while properties with the highest values were, on average, legally assessed.

Both before and after Duggan’s assessment reductions, those who can afford only modest properties have been subject to the most severe illegality and forced to endure the consequences of Detroit’s broken levees.

In July, the American Civil Liberties Union of Michigan, the NAACP Legal Defense Fund and the law firm of Covington & Burling filed a class action  alleging that the unprecedented number of property tax foreclosures in Detroit is unlawful on several counts, including the fact that the property tax assessments systematically violate the state constitution and the Fair Housing Act. The findings of "Stategraft" strongly support this claim.

The end goal of the class action is to stop all property tax foreclosures that are based upon illegal assessments. As an interim measure, the legal team recently filed a motion for a preliminary injunction that would place a moratorium on property tax foreclosures of owner-occupied properties in Detroit and throughout Wayne County.

To be sure, by reducing city revenues, a moratorium would further wound a city that has been in economic decline for decades and is desperately trying to emerge from the shadow of the largest municipal bankruptcy in our nation’s history. But, just as we do not allow homeless people in desperate need to burglarize homes, we should not allow the City of Detroit to use unlawful assessments and inflated property tax bills to steal money from Detroit property owners. Additionally, the requested moratorium is narrowly tailored so that it protects only vulnerable homeowners and not investors. 

Given the mortgage foreclosure crisis, water shutoffs and historic bankruptcy, the people of Detroit have already had to weather several devastating storms. Now that they are facing a hurricane without water, the federal government cannot leave Detroiters stranded.

Attorney General Loretta Lynch must ensure that the Housing and Civil Enforcement Section of the Department of Justice opens an official investigation, which will supplement the ongoing class action and begin to quell the tides of inequity.

Bernadette Atuahene is a visiting professor at the University of Chicago Law School and a research professor at the American Bar Foundation.

Cupp on Animal Rights and Property Law

Richard Cupp (Pepperdine) has posted Animals as More Than "Mere Things," but Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm (University of Cincinnati Law Review) on SSRN. Here's the abstract:

Survival of the animal welfare paradigm (as contrasted with a rights-based paradigm creating legal standing for at least some animals) depends on keeping pace with appropriate societal evolution favoring stronger protections for animals. Although evolution of animal welfare protection will take many forms, this Article specifically addresses models for evolving conceptualizations of animals’ property status within the context of animal welfare. For example, in 2015 France amended its Civil Code to change its description of companion animals and some other animals from movable property to “living beings gifted with sensitivity,” while maintaining their status as property. This Article will evaluate various possible approaches courts and legislatures might adopt to highlight the distinctiveness of animals’ property status as compared to inanimate property. Although risks are inherent, finding thoughtful ways to improve or elaborate on some of our courts’ and legislatures’ animals-as-property characterizations may encourage more appropriate protections where needed under the welfare paradigm, and may help blunt arguments that animals are “mere things” under the welfare paradigm. Animals capable of pain or distress are significantly different than ordinary personal property, and more vigorously emphasizing their distinctiveness as a subset of personal property would further both animal welfare and human interests.

Contreras on Liability Rules, Genetic Information, and Property Law

Jorge Contreras (Utah) has posted Genetic Property (Georgetown Law Journal) on SSRN. Here's the abstract:

Under U.S. law there is no property interest in mere facts. But with respect to factual data relating to human genes, a de facto property regime has emerged in all but name. The level of control that individuals have exerted over genetic data exhibits the classic hallmarks of Blackstonian property: the right to exclude, the right to destroy, dead hand control, divisibility, and alienability. This degree of control has arisen through an expansive interpretation of the ethical requirement of informed consent. Notwithstanding the ongoing evolution of federal research regulations that permit some data-based research to proceed without extensive consent requirements, actions sounding in state property law pay little heed to compliance with these regulatory procedures. The resulting property-like regime over genetic data has enabled individuals to bring litigation disrupting and even halting valuable biomedical research and leading to the destruction of valuable research resources.

Looking to Calabresi’s and Melamed’s seminal analysis of property and liability rules, I propose that the property-like treatment of genetic data be replaced by a combination of existing and new regulations of researcher conduct (liability rules) to protect individuals from abusive research practices. This approach would shift the landscape from one in which data-based research cannot occur without the consent of individual research participants, to one in which research is presumptively allowed, but researchers face liability for overstepping the bounds of permitted activity.

Pappas on Takings Claims and Regulation

Michael Pappas (Maryland) has posted A Right to Be Regulated? (George Mason Law Review) on SSRN. Here's the abstract:

Can property include a right to government regulation? An enormous amount rides on this question. Billions of dollars in transferable development rights, flood and landslide protections, patents, pollution credits, utility service areas, access roads, taxi medallions, and grazing permits: these are some of the valuable interests claimed as rights in regulation. Are they protected property?

This Article answers the question and constructs an overarching framework for evaluating asserted rights in regulation. It determines that courts and legislatures actually recognize some property rights in government regulatory actions. It then synthesizes these authorities to create administrable rules for assessing such claims. In doing so, it integrates and advances disparate strands of property scholarship and provides courts with meaningful guidance for addressing these important issues.

Infranca on the Sharing Economy and the Middleman

John Infranca (Suffolk) has posted Intermediary Institutions and the Sharing Economy (Tulane Law Review Online) on SSRN. Here's the abstract:

In Regulating Sharing: The Sharing Economy as an Alternative Capitalist System, Professor Rashmi Dyal-Chand challenges the assumption – implicit in the fast-growing legal literature on the “sharing economy” – that companies in this sector operate in the manner of traditional firms. Framing the sharing economy as a “nascent form of a coordinated market economy”, Dyal-Chand calls for regulation rooted in a deeper understanding of the institutions – both the technological platforms most commonly associated with the sharing economy (Uber, Airbnb, TaskRabbit, and their ilk) and a burgeoning collection of more organic and democratic organizations — that shape this economy.

This short invited Response focuses on the potential of this second category of institutions to achieve a more equitable distribution of the economic benefits of the sharing economy. While I agree that much can be gained from a more critical reflection on the nature of the institutions that shape the sharing economy, I harbor skepticism regarding the current vitality and future potential of these alternative institutions. I first explore how intermediary institutions might strengthen the position of workers in the sharing economy. I then express a few hesitations regarding the prospects of intermediary institutions to adequately counterbalance the technological platforms that dominate the sharing economy. Finally, I offer suggestions for how, by drawing on discussions of the role of institutions in other areas of legal doctrine; an “institutional turn” in thinking about the sharing economy might inform both legal scholarship and regulation.

 

Zhang on Property and the Influence of Cultural Factors

Tails Zhang (Duke) has posted Cultural Paradigms in Property Institutions (Yale Journal of International Law) on SSRN. Here's the abstract:

Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it. 

This Article develops a “cultural” theory of how property institutions are created and demonstrates that such a theory is particularly powerful in explaining large-scale institutional differences between societies. Empirically, it argues that, in the two centuries before large-scale industrialization, China, England, and Japan displayed systematic and fundamental differences in their regulation of property use and transfer. It further argues that these legal and institutional differences are best explained by certain aspects of social culture, specifically by the criteria for sociopolitical status distribution. Some of these criteria are distinctly “cultural” in the sense that they were probably generated by the widespread social internalization of moral values, rather than by utilitarian bargaining.

Cultural paradigms can exist, therefore, in property institutions. If we assume, as conventional law and economics urges, that individuals generally approach property use and regulation through a self-interested and utilitarian mindset, their pursuit of personal utility can nonetheless be constrained or empowered by cultural norms of status distribution that determine their relative bargaining power.

 

AALS Property Law Section Call-for-Papers!

AALS Property Law Section Call For Papers

January 2017 -- AALS Conference in San Francisco, CA

 

The AALS Property Law Section has two panels at the AALS Conference this year.  If you would like to participate in either of these panels, please email a title and abstract of your proposed presentation to Ezra Rosser, erosser@wcl.american.edu, by June 1, 2016.  The Property Section’s Executive Committee will select participants from the proposals received by that date.  

 

(1) “Property and the Challenge of Housing Affordability” -- Co‐Sponsored by State and Local Government Law, and Poverty Law Sections.  1:30-3:15 pm, Thursday, Jan. 5, 2017.

 

The main property law panel this year focuses on housing affordability, a topic that is appropriate for a conference being held in San Francisco.  Two speakers will be chosen from this call-for-papers and they will join invited panelists Courtney Anderson (Georgia State), Steve Eagle (George Mason), Lisa Alexander (Texas A&M), and moderator Eduardo Peñalver (Cornell).  Fordham Urban Law Journal has agreed to publish articles coming out of this panel and has asked that authors submit drafts to them by August 1, 2016, making this call ideally suited for those who already anticipate working on a housing affordability topic this summer.  If you have any questions about this panel or the associated publication opportunity, please email erosser@wcl.american.edu.  

 

(2) “Property Law Works in Progress” -- 3:30-4:45 pm, Wednesday, Jan. 4, 2017.

 

This year, the AALS Property Law Section is organizing a works-in-progress session for junior (pre-tenure) scholars.  This is meant to be an opportunity to present and get feedback on works that will not be published as of Jan. 2017 and that are still at a stage in which feedback could be valuable.  In addition to having the opportunity to share work through the panel, selected presenters will be matched with a senior scholar who will provide written comments.  There is no limitation as far as topic area for this panel and we look forward to receiving your proposal. 

 

Looks like two great opportunities for property law scholars! Send in your papers ASAP!

Carroll and Odinet on Gay Marriage, Property, and Debt

Andrea Carroll (LSU) and Chris Odinet (that's me!) (Southern) have posted Gay Marriage and the Problem of Property (Washington University Law Review Commentaries) on SSRN. Here's the abstract:

The Supreme Court’s gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights have now descended upon gay couples as a result of the Court’s ruling. In this Essay we explore the little discussed downsides of the decision when it comes to the property rights and debts of the spouses. This is particularly important when considering the rights of third parties and their settled expectations in the context of retroactivity, as well the ways in which the Court’s decision may have the undesirable affect of undoing the carefully laid plans of the spouses. We conclude that courts and legislatures have by no means seen the end of the gay marriage debate. Rather, a host of unforeseen collateral issues lie on the horizon.

Adverse Possession, Takings and the State

William Marra, Harvard Law School, has posted Adverse Possession, Takings, and the State on SSRN.

Here's the abstract:

Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be allowed to adversely possess land in the same manner as private individuals? Second, when the government commits adverse possession, does this constitute a constitutional “taking” that requires the payment of just compensation? These two questions are of practical importance because they affect the resolution of numerous property claims, and they are of theoretical significance because they implicate both the appropriate scope of private property rights and the proper relationship between the individual and the state. Part I provides an introduction to adverse possession, and Part II studies the law of government adverse possession, detailing how nearly every jurisdiction permits the government to adversely possess private land in the same manner as private individuals. But as Part III demonstrates, government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions — that the landowner has a property rule entitlement to her land, that the trespasser develops robust reliance interests, and that society’s primary interest is in quieting title — that do not necessarily hold when the government is the adverse possessor. Part IV concludes that because the current rules of adverse possession incentivize government trespass upon private land, special rules should apply to the government. When the government adverse possessor trespassed in good faith, a longer statute of limitations should apply; when the government trespassed in bad faith, it should be entirely denied the right to adverse possession. One quick fix to the problem, proposed by a federal court and endorsed by some commentators, is to call government adverse possession a constitutional taking and require the state to pay just compensation. Part V explains that the problem cannot so easily be wished away, and contends that the text of the Constitution, its history, and Supreme Court precedent all suggest that government adverse possession is not a taking. The solution to the problem presented by government adverse possession rests in righting property law, not distorting constitutional law.

By way of comparative comment:

• It is interesting how "takings" issues are such a significant part of constitutional discourse in the US, and in my nearer neighbour, Australia.  New Zealand, without a formal written constitution, and without any "takings" provision, is in a different world in this sense.  I have recently been exploring how the absence of this regime makes it easier to "propertise" resources (and also regulate them without having to worry about compensation issues) for a forthcoming article for the New Zealand Universities Law Review.
• Adverse possession was a part of my NZ Land Law course, as it remains part of US property courses.  In New Zealand the law is statute based, and there would be very few adverse possession cases in New Zealand: one of the recent ones concerned a fairly isolated block of farm land with a fence in the wrong place (rather than the "squatter's rights" (of an abandoned house, for example) I imagined at law school).
• Marra hasn't steered away from takings.
• An empirical study of adverse possession (comparative, Commonwealth or otherwise) would seem to deserve attention.
• 

Thomas Gibbons

Henry's Myth

One of the benefits of a blog (I am told) is the chance to introduce topics and ideas I know I'll never have the chance to turn into full articles.  Here is the first - an abstract of the beginning of a response to Henry Smith's "Property as the Law of Things":

http://lawprofessors.typepad.com/property/2012/03/smith-on-property-as-the-law-of-things.html

"Henry’s Myth; or, The Baby, the Bathwater, and the Bundle of Rights

Professor Smith’s recent article “Property as the Law of Things” (2011) 125 Harv L Rev [forthcoming] argues that the legal realists’ notion of property as a “bundle of rights” should no longer be considered useful to property lawyers and jurists.  This paper argues otherwise, pointing out that (a) Smith has misrepresented the intellectual origins of the idea of property as a bundle of rights; (b) the “bundle” is more appropriately seen as a metaphor, rather than a description, and Smith has misrepresented this metaphor;  (c) Smith’s new “modular architecture” metaphor bears more resemblance than Smith will admit to the idea of the bundle; and (d) there remain a number of examples for which the bundle of rights is a better analogy than modular architecture.  This paper criticises the notion that the bundle of rights metaphor must give way to a modular architecture analogy as “Henry’s myth”, and concludes that we should not too easily abandon an enduring metaphor like the bundle of rights without being aware of what else might be lost: the bundle of rights remains something of a “baby” within the bathwater of property law theory."

Mostly, I think, it is just a good title.  It begins from an assessment that Smith - and others - treat the "bundle" as a realist idea, when the phrase significantly pre-dates the realists and the legal realist movement.  Further, a bundle is something we can picture quite well - "agenda setting" (as per Katz) or "modular architecture" less so.  That said, the abstract is less nuanced than an article would be (as Smith's article is itself more nuanced than its title).

Comments welcome, but as I said, it's not likely to be something I have time to turn into a proper article, so as much as anything, I hope perhaps someone else can pick up on it. 

Thomas Gibbons

Rahmatian on Dematerialized Property

Andreas Rahmatian (Glasgow) has posted two new articles on SSRN.  The first is Intellectual Property and the Concept of Dematerialised Property:

A property right (ius in rem, real right) is an abstract legal concept which relates to an object, referred to as “thing” or “res,” or imprecisely, but commonly, “property.” This object of property is a product of legal categorisation; it may be represented by a physical thing or it can be an abstract legal creation itself, as is the case with an intellectual property right. In any event, for the law the “property-object” (whether tangible, intangible or purely intangible) is the product of a legal conceptualisation. The law (private law) creates any res or thing, whether corporeal or not, through the legal concept of real rights. That enables legal recognition of the res in question. The material object (if there is one) only becomes a res in law if real rights are attached to it. Therefore, real rights and res are both “property”, and particularly with (purely intangible) intellectual property, property rights and property objects merge into one. The abstract conceptual res typically has a reifier to make it recognisable in the material world and for the purpose of social interactions. This reifier can be a corporeal object, in which case it is a direct reifier (a table being a direct reifier and incident of a res, chattel), but, for example in case of copyright, a chattel may act not only as direct reifier of the notional personal (moveable) property right (e.g. a canvas of a painting, the score of a symphony, the paper of a manuscript), but also as an indirect reifier of the notional copyright (artistic work, musical work, literary work). The chattel in question represents directly the personal/moveable property (but does not constitute it, because the res remains a legal concept), and, in addition, the chattel represents indirectly the copyright in the work which is expressed and recorded in the chattel in question (a painting, sculpture etc.).

The second is Introduction: Lord Kames and His Principles of Equity:

One should regard the Principles of Equity by Lord Kames (1696-1782) as a work of applied legal philosophy rather than black-letter law. It is secondary whether the law was exactly as stated in the Principles of Equity, especially as that would have been the legal situation 250 years ago anyway. What is relevant is that the book contains a logically organised and principled jurisprudential discussion of scenarios of conflicts and proposed solutions by the law of equity. One should be able to detect and develop a set of legal solution mechanisms, abstract paradigms of concrete legal rules which may serve as an inspiring force for real life solutions without slavish adherence to the model. The Principles of Equity fill the gap between the philosopher who is often creative but not meticulous, and the lawyer who is often meticulous but exegetic. Where the lawyer has to be meticulous and creative and needs the approach of an applied philosopher as well as a legal specialist, particularly in the role as a legal theorist or as a draftsperson of statutes and contracts, he or she will find an excellent teacher in Kames. His work shows that law is not rote learning of statutes and cases and their mechanical application, but a craft as a basis for the art of justice, a craft that should be rooted more in reason than in authority.

Ben Barros

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

Riding the Bus to Work

Time magazine has posted a slideshow of the best cities for public transit and the worst:

[W]hich cities were best at getting their residents to their workplaces in a timely and cost-effective manner? By researching coverage, service frequency and percent of total employed residents who can use public transportation, the report aimed to rank cities based on the most convenient overall commute.

Steve Clowney

A Ground Zero Update

From the New York Times - and update on the rebuilding underway at the World Trade Center site.

Steve Clowney

A New Urbanist Call to Arms

New Urbanist heavyweight, Andres Duany, has come out swinging in the recent issue of Metropolis Magazine.  Duany has penned a pretty stirring defense of New Urbanism's accomplishments, and makes time to attack the "postmodernists," "architecture students from elite schools," and members of the "avant-garde," that have poo-pooed the movement.

The New Urbanism is in reality an expanding web of ideas, techniques, projects, and people. The Congress for the New Urbanism (CNU) is an institution chartered 18 years ago with a budget, a board, and a staff. . . .New Urbanists wrote HUD’s HOPE VI standards and are thereby responsible for about 111,000 new and renovated units of affordable housing—virtually the entire supply of the last 15 years, with a good proportion designed by CNU members. . . . A diverse array of techniques has been rescued from oblivion and tested in hundreds of built projects. New Urbanist architecture’s visible “nostalgia” is easily dismissed by critics, but its power is really in software and other methods . . .

Steve Clowney

Shameless Self-Promotion Department

For those interested, my article Acceptable Deviance and Property Rights has now been published in the Connecticut Law Review.  Here's the abstract:

Compliance with - or deviance from - law is often dependent upon the law’s convergence with - or divergence from - normative sensibilities. Where the legality and social acceptability of behavior diverge, some deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in legal institutions created by divergences in the legality and social acceptability of behavior with regard to property rights. Law functions as an anchor on behavior, providing stability, but also space for deviance which permits the evolution of property rights.

Mark A. Edwards

[Comments are held to make sure they are absolutely dripping with praise, so there may be some delay in posting]

Please Suggest A Note Topic

Cross-posted from thefacultylounge....

 Well, it's time for that annual ritual: the visits to faculty offices by students looking for a note topic. Many congratulations to you all on making whatever review.  It's going to be a lot of work and also some fun (I hope) and also it'll be a nice line on the resume.

So, you want a note topic.  Well, I've thinking mostly about property and trusts and estates and legal history these days, so I'm going to re-post some ideas from a few years back here at propertyprof and add a couple of new ideas in here ....

Lo' those many years ago Eben Moglen suggested a topic to me, on federalism in the Taney Court.  I am eternally grateful to him.  And over the years I've suggested a bunch of topics to students.  Some of the better ones in recent years include Amy Wilson's on the jazz influence in property law (got to read it--I'm not going to give away the punchline); Kitty Rogers' on integrating the city of the dead (catchy title, eh?); Leah Green's on the Erie Canal in American legal thought; Elizabeth Bates on statutes of limitations for reclamation of artwork produced by slaves; Chris Williams on an empirical study of smart growth; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law.  In terms of a really excellent execution of a remedies topic, I'd point you to Grace Long's The Sunset of Equity: Constructive Trusts and the Law-Equity Dichotomy.  It's darn good and it's about reconciling equity doctrine in a couple of diverse areas (injunctions and constructive trust), which I think shows a ton of both creativity and facility with doctrine.  It's a model of strong scholarship.

The key to a good student note topic is: that it's do-able over the course of the second year.  What's that mean?  First, it's a topic that hasn't yet been over-written.  That means stay away from takings (exception to follow).  Some years ago (like nine at this point) one of my favorite students of all time asked me about writing on takings.  And I said, well, spend the weekend looking at what's been done and reading (the then most recent case), Palazzolo and if you can find something new to say, let me know.  So the next week she said, "seems like everything has been taken.  [pause]  I guess that was your point."

Second, find something that's at least a little interesting.  You're going to be living with it for a while.  Third, find something that's narrow enough that you can read everything on the topic and come to a reasonable conclusion in the time you have available.  Fourth, find a topic on which you can say something about the law (this usually means finding a place where law is in flux).  It's not a great idea to rehash the arguments against a particular Supreme Court decision.  That's been argued and answered, even if you don't like the result.  (This advice applies to faculty, as well.)  The Columbia Law Review used to have a rule: you can't criticize the Supreme Court in your note.  Good advice for second year law students, I think.  Not that the Supreme Court has always done everything right; it's just that it's good to stay away from a topic on which you know going in you can't have much effect.

That means that narrow doctrinal topics are really good; brief empirical pieces, are also very good.  And I think historical pieces are ideal, because there is so much that's left to be said about legal history. Talk to people at work; often times, the best note ideas come from practicing attorneys who see issues as they're just beginning to make their way through litigation.  Some ideas below the fold....

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