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Professor David Callies Awarded William & Mary Law's Brigham-Kanner Property Rights Prize

University of Hawaii Law School Professor David Callies last night was presented with William and Mary Law School's Brigham-Kanner Property Rights Prize which is "presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights." 

As W&M notes about Professor Callies, a "prolific scholar whose work explores land use, property, and state and local government law, Callies has lectured around the world and authored or collaborated on about 90 articles and 20 books. He has been a member of the prestigious American Law Institute since 1990 and is the Benjamin A. Kudo Professor of Law at the University of Hawaiʻi at Mānoa. Prior to entering academia, he was an attorney in private practice and an assistant state’s attorney."

We're spending today in a series of panels which explore and build upon Professor Callies' lifetime of work. Michael Berger, a past Prize winner, kicked off the day on the panel "The Future of Land Regulation and a Tribute to David Callies," with a discussion of how Callies went from being the author of The Taking Issue (which Professor Gideon Kanner has referred to as a "failed propaganda screed") in the early part of his career, to a scholar who plainly recognizes the critical role of property rights and the regulatory taking doctrine. 

Callies joins a prestigious list of prior Prize winners, a list that has reached 14, and now requires two brass plaques at the William and Mary Law School, just outside Classroom 1. 

I spoke on the first panel of the day, the above-mentioned "The Future of Land Regulation and a Tribute to David Callies," along with Michael Berger, Professor James Ely (also a prior winner), and Pepperdine Law School Professor Shelley Saxer. Here are links to the cases and other materials I spoke about, or that are in my written materials:

• Bosselman, Callies, and Banta, The Taking Issue
• Gideon Kanner, Helping the Bear, Or “The Taking Issue” Was a Failed Propaganda Screed. So Why Is It Being Celebrated?
• The backstory behind Hadacheck: Takings Pilgrimage, LA Edition: Police Power, The Zoning Game, And Nuisances
• Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984).
• Kaiser Aetna v. United States, 444 U.S. 164 (1979).
• Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005). 
• Justice Kennedy's concurring opinion in Kelo v. City of New London.
• Hawaii water rights and the public trust: Kauai Springs, Inc. v. County of Kauai Planning Comm'n, 324 P.3d 951 (2014).
• The public trust in natural resources: Hawaii's Thirty Meter Telescope case (findings of fact and conclusions of law).
• Takings, property, and the sharing economy: Thomas, "Property" and Investment-Backed Expectations in Ridesharing Regulatory Takings Claims,  39 U. Haw. L. Rev. 301 (2017).
• Thomas, Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin? (forthcoming).

Professor David Callies To Be Awarded Brigham-Kanner Prize At Property Rights Conference (Oct. 10-13, 2017), William & Mary Law School

Save the date: the William & Mary Law School's Brigham-Kanner Property Rights Project has selected University of Hawaii Law Professor David L. Callies as the 2017 recipient of the Brigham-Kanner Property Rights Prize.

The Project has also announced the dates for the B-K Conference:

When: October 10-13, 2017

Where: William & Mary Law School, Williamsburg, Virginia

The 2016 Conference was held in The Hague, Netherlands, and in 2017, and as you can see, we'll be returning to Williamsburg.  

The Conference starts with the traditional candlelight dinner and presentation of the Prize in the historic Wren Building, and the following day is a series of discussions about the prizewinner's work, current issues in property law, and, naturally, property rights. The speakers and attendees are legal scholars and practicing lawyers, and there is also a large contingent of law students of course. 

Professor Callies will be joining a true pantheon of property scholars and practitioners including (among others) Richard Epstein, Jim Ely, Michael Berger, Frank Michelman, Carol Rose, Hernando de Soto, and Jim Krier. A truly impressive lineup, and if past practice is any guide, many prior prizewinners attend the Conference and speak.

We think the highlight of the Conference is the Wren Building dinner and award ceremony, and we post this now to encourage you to reserve your spot. Space is limited, and once it sells out, it sells out. We will post information next week about how to let William and Mary know you are coming. 

What's In The Box? Hugo Grotius!

After the recent Brigham-Kanner Property Rights Conference in the Netherlands (very appropriate, as it was the home of the Dutch lawyer and property rights guy Hugo Grotius), we had the opportunity to visit one of that country's notable museums, where we came across this odd piece, a somewhat worn and nondescript wooden chest. 

Upon closer inspection, it turns out that this might be the box in which Grotius stored his law books while he was in prison for life.

Turns out that it also might be the box in which he escaped from said imprisonment. We say "might be" because there are other boxes which lay claim to being "the" box.  

No matter, because even if this box is only one "long thought to be the one from this famous story" and not the actual box, in our view, we're still now only one degree of separation, or at most two, from Mr. Grotius and his famous escape.

The story is that he requested the chest from his jailers to store his law books. He got in the box, was covered up with some books, then carried past the unsuspecting guards. (Although we suspect the guards were not as "unsuspecting" as they let on.)

Hugo Grotius has the upper hand!

Who said law books are obsolete? Try doing that on Westlaw.

(Prison Administration 101: if a convict requests a "man-sized chest" for his books ... you may not want to take it at face value.)

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inversecondemnation.com: In Peace And In War: 2016 Brigham-Kanner Property Rights Conference At The World Court

Eminent Domain Abuse, Coming To A Theater Near You

In Peace And In War: 2016 Brigham-Kanner Property Rights Conference At The World Court

Several years ago, William & Mary Law School's Brigham-Kanner Property Rights Conference departed its usual Williamsburg, Virginia venue and held the event in Beijing. Holding the conference there allowed U.S. legal scholars and property law practitioners to share ideas and compare our ways with our PRC counterparts. The event was a great success.

Now, W&M has followed up with another international venue for the Conference: the World Court (Peace Palace), in The Hague, Netherlands.

The Conference kicked off last night with a reception honoring this year's Brigham-Kanner Prize winner, Peruvian economist Hernando de Soto, who opened the Conference this morning with a summary of his work and theories. One of the most intriguing is that the "Arab Spring" was a cry for property and economic rights.Count us as convinced. 

The panels began their presentations today. Ours focused on how property rights contribute (or not) to developing nations. My own talk was about how Hawaii's experience in moving from a propertyless system, to one based on fee simple absolute, to one based on regulatory power, may hold lessons for others. (We'll post the audio from the talk, once we have a chance to clean up the recording and remove the background noise.)

The Peace Palace is a mighty impressive venue to hold a conference. The outside is Wayne Manor writ large, while the inside is even more designed to reflect its status as a "temple of the law."  

The organizers of the Conference -- William and Mary Law School's Kelsey Rothera, Professor Lynda Butler, and Dean Dave Douglas -- have done another wonderful job with this Conference.

More will follow on the panels and the substance of our discussions in subsequent posts.

As for the "war" part of this post's title, a day before the Conference began, several of us paid a visit to the sites in the eastern Netherlands where in September 1944 Allied paratroopers and tankers liberated that part of the country during Operation Market-Garden, made famous by the book and movie "A Bridge Too Far."

Why? Because we should remember such things, even as they are fading into history as the men who participated in the battle are dwindling. 

The Bridge Too Far, in Arnhem, today known as "John Frost Brug" after the commander of the British Paras who desperately tried to hold the north end of the bridge. 

The first battalion of the 504th Parachute Infantry Regiment of the U.S. 82nd Airborne Division crossed the Waal here at Njjimegen, paddling with their rifle butts under heavy enemy fire, in broad daylight, in canvas boats. Referred to as "Little Omaha," a British officer remarked that this was the "bravest act of the war." But they accomplished the mission, and opened the road to Arnhem despite absorbing staggering casualties. The photo does not convey the true width of the Waal.

The memorial on the site where LTC Robert Cole, commander of the 3/502 PIR was killed by a German sniper. LTC Cole was awarded the Medal of Honor for leading his company's bayonet charge in Normandy, near Carentan. He was killed during Market-Garden before receiving the Medal. He was exposing himself to the sniper's fire to encourage and motivate his troopers, but paid the price that leaders must sometimes pay. "Gesneuveld voor ons" by the way, means "he died for us." The memorial was erected and is maintained by the local Dutch municipality's school.

"Bridge Number 11 is ours." U.S. paratrooper Captain Thompson, upon his company's seizure of the Grave bridge (now named "Thompsonbrug").

If you ever consider doing a similar tour, you'd do well to contact Nick Kelso first. He's a Brit who lives in the Netherlands, who tailored our day-long tour and accompanied us as we drove around to each site. 

Maybe The Only Press Release Ever To Cite Hugo Grotius

As we noted here, this year's Brigham-Kanner Property Rights Conference honoring Hernando de Soto will to be held in The Hague, Netherlands, at the International Court of Justice on October 19-21, 2016.

To push out word, the Owners' Counsel of America kindly produced a press release announcing our participation in two of the panel discussions, "Property’s Role in the Fundamental Political Structure of Nations," and "Defining and Protecting Property Rights in Intangible Assets." 

We mention it here only to note, as this post's headline states, this may be the only press release (ever?) to mention Hugo Grotius. Left unanswered: how to pronounce "Grotius."

“I am honored to have been invited to speak at the Brigham-Kanner Conference, especially when the Conference is honoring Hernando de Soto, whose work on property rights has had such international influence,” said Thomas. "I’m also glad the Conference will be held at the International Court of Justice, because The Netherlands was the home of Hugo Grotius, whose Reformation-era writings on property rights remain influential to this day," he said.

With that accomplishment crossed off our bucket list, we return you to your regular programming. 

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Property Rights Take Center Stage At The World Court: 2016 Brigham-Kanner Conference, October 19-21, 2016, The Hague

Property Rights Take Center Stage At The World Court: 2016 Brigham-Kanner Conference, October 19-21, 2016, The Hague

As we mentioned a few weeks ago, the final agenda for the 2016 Brigham-Kanner Property Rights Conference has been released. Here's the complete conference brochure, which has all the details, including registration information. 

This is the annual program, sponsored by the William and Mary Law School, in which there's a day-long discussion of all things property rights among members of the academy, the bench, and the practicing bar. The Brigham-Kanner Prize is also presented "to an individual whose work has advanced the cause of property rights and has contributed to the overall awareness of the important role property rights occupy in the broader scheme of individual liberty." The pantheon of prizewinners is a who's-who in our area of law: Richard Epstein, James Ely, Michael Berger, Frank Michelman, Carol Rose, and Thomas Merrill, to name a few. Here's the complete list of prizewinners. 

This year, the prize is being presented to Peruvian economist Hernando de Soto, the President of the Institute for Liberty and Democracy, and the venue is again going international: we'll be in The Hague, Netherlands, at the Peace Palace, home of the International Court of Justice. It's also very appropriate for a conference on property rights to be sponsored by the alma mater of Hugo Grotius, Leiden University.  

This is the second time in the Conference's 13-year history that it is being held outside of the United States (actually, outside of Williamsburg, Virginia). In 2011, the Conference was held at Tsinghua University Law School in Beijing. 

The program is two full days of presentations and discussions on subjects like "Land Titling, Inclusion, and the Role of Property Rights in Secure Societies, "Recognizing and Protecting Cultural Property," "Property, Equality, and Freedom," "Rising Seas and Private Property," "Property Rights as Defined and Protected by International Courts," and "Eminent Domain and Expropriation as Wealth Redistribution Tools." 

We'll be speaking on two panels:

Panel 3: Property’s Role in the Fundamental Political Structure of Nations

For centuries, the debate over the role of property in the fundamental political structure of nations has centered on property’s relationship to individual liberty and core societal values. In nations that trace their roots to English law, the debate extends back to the Magna Carta, which delineated the boundaries between fundamental individual freedoms and government power. Hernando de Soto’s work has renewed the debate on the world stage, emphasizing the centrality of strong property rights to democratic capitalism and connecting the increase in global terrorism to the weak property rights of the poor majority found in many countries. Panel 3 examines these positions, focusing in particular on the transferability of property concepts to the political structure of nations with diverse cultures, norms, and traditions.

And, we're also on another panel:

Panel 6: Defining and Protecting Property Rights in Intangible Assets

Intangible assets are important to both mature and developing economies. Whether those assets involve innovative ideas, intellectual property, technological or medical advances, security interests, finance capital, or other new assets, intangible assets raise unique issues for property systems. How well do laws governing real or tangible property transfer to intangible assets? What special problems do intangible assets pose for the development and management of property rights? This panel addresses these and other questions relating to property rights in intangible resources from national and international perspectives.

Even though this is heady stuff, the speakers are a mix of legal scholars and practicing lawyers, so we will, as usual, keep it grounded. If past Conferences are any indication, this will be a robust and frank discussion of the role of property rights and how and whether they are respected. 

We know it is a long way to go for a legal conference, but we're hoping you can attend. Northern Europe in the fall is a nice place (the throngs of tourists are gone), the company is good, and the subject matter is even better. 

2016 Brigham-Kanner Property Rights Conference Program

Must Read: Michael Berger On "Property, Democracy, & The Constitution"

Last year, we posted about the Brigham-Kanner Conference, the annual meeting at William and Mary Law School where we talk all things property rights and award the Brigham-Kanner Property Rights Prize. (By the way, this year's conference will be held in The Hague, The Netherlands in October. But more on that soon, in a separate post.)

What we are posting today is a follow-up about Mike Berger's presentation at the 2015 conference. His article -- then only in draft form -- is a critique of the theories of the 2015 Brigham-Kanner prizewinner, Harvard lawprof Joseph Singer. Recall that Berger was presented with the prize in 2014 -- the first and thus far only practitioner to receive the award -- which makes this article even more important.  

Berger's article is now finalized, and has been published by the Brigham-Kanner Property Rights Conference Journal: "Property, Democracy, & The Constitution," 5 Brigham-Kanner Prop. Rts. Conf. J. 45 (2016).

Here's a taste, from the Introduction:

I am troubled by Professor Singer’s view of takings law. He writes well and in a breezy style, so he is able to make it sound as though he is simply laying out a rational summary of takings law as it has been developed. But I don’t think so. I think that Professor Singer would like to wipe the slate pretty clean and start anew, establishing what he views as property “norms” that would retroactively substitute his progressive notions for traditional property law concepts. Rather than accept his thesis at face value, I suggest we deconstruct and analyze it to see how it actually comports with the property and liberty norms that a free society and the Supreme Court have already written on this constitutional slate. Those are the norms that have been deemed essential for a minimal degree of stability in a society that is governed by persuasion rather than by governmental fiat. What is essential in our system of private property, free enterprise, and constitutional protection of individuals is that people be able to know what their rights and liabilities are without years (or even decades, as too many of the regulatory takings cases illustrate) of litigation. Given a choice between making the existing system work as designed or shifting to Professor Singer’s progressive norms, I have no problem opting for the former.

We recommend you read the entire article.

Introduction To The Civil Forfeiture Panel At The 2015 Brigham-Kanner Property Rights Conference

Earlier today, I moderated a panel of expert speakers on the topic of "Civil Forfeiture of Property" at the 12th Annual Brigham-Kanner Property Rights Conference at William and Mary Law School in Williamsburg, Virginia. 

Sara Sun Beale of Duke Law, Scott Bullock of the Institute for Justice, and Sandra Guerra Thompson of the University of Houston Law School were our speakers. Here are my introductory remarks:

Is the right of private property a "poor relation" to other civil rights, as the Supreme Court once warned? Or is the Takings Clause like the Pirate Code in Pirates of the Caribbean -- more like what you'd call 'guidelines' than actual rules? 

If you were to look only at civil forfeiture laws -- what one of our speakers has eloquently referred to as "policing for profit" -- you might think so.

These laws allow government to seize private property without first convicting or even charging the owner with a crime. Yes, the police may need probable cause or reasonable suspicion, but given the size and scope of municipal, state, and federal criminal law, we're all guilty of something -- they just need to get around to noticing. And it may not be limited to traditional "crimes," but may extend to Orwellian thoughtcrime. For example, the State of Colorado has moved to seize $135,000 from the bakers who refused to bake a cake for a same sex wedding.

Civil forfeiture highlights the disparities in the protection of fundamental rights such as private property. This is not exactly a new phenomenon, and I return to the Pirate's Code, since it has been a part of American law since at least United States v. The Brig Malek Adhel,  43 U.S. 201 (1844). In that case, the Court upheld a federal statute which allowed maritime authorities to seize and bring in any ship (and crew) who might be pirates. "Innocence," wrote the Court, "will not exempt the vessel."

Our speakers will evaluate the impact of civil forfeiture laws on property rights, and consider what -- if any -- reforms are needed.

We had very good presentations and discussion, and we ended with this question: when does a Fourth Amendment seizure become a Fifth Amendment taking?

"Joe is such a believer in private property that he thinks everyone should have some" - The 2015 Brigham-Kanner Property Rights Conference

Greetings from the William and Mary Law School in (rainy) Williamsburg, Virginia, where we're speaking at the 12th Annual Brigham-Kanner Property Rights Conference. 

This year's B-K Prize winner is Harvard Law's Joseph Singer, who we wrote is "an interesting choice, given his theory that a 'robust regulatory structure' goes hand-in-hand with property rights, liberty, and the free market. Robust regulation isn't exactly what you might think of when you think property rights, is it?" As another lawprof noted about Professor Singer, he "is such a believer in private property that he thinks everyone should have some."

If that quote doesn't quite compute for you -- it's a nice thought, for sure, but how do you get from here to there is what we want to know -- you are not alone. Last year's B-K Prize winner, Michael Berger spoke during the first morning session, and submitted this piece for forthcoming publication in the Brigham-Kanner Property Conference Journal, in which he writes: 

This year’s Brigham-Kanner honoree has, in the fashion of academics, produced a prodigious body of work dealing with property in general and takings law in particular. While there is much that is useful in his analysis, I believe that some of its central tenets are mistaken and lead to erroneous conclusions about takings law’s function and where that law is and should be going. Moreover, and without explanation, Professor Singer’s analysis ignores all of the Supreme Court’s decisions since 2010, comprising at least half a dozen important takings opinions.

. . .

Cutting to the chase, I am troubled by Professor Singer’s view of takings law. He writes breezily and well, so he is able to make it sound as though he is simply laying out a rational summary of takings law as it has been developed. But I don’t think so. I think that Professor Singer would like to wipe the slate pretty clean and start anew, establishing what he views as property “norms” that would retroactively substitute his progressive notions for traditional property law concepts. Rather than accept his thesis at face value, I suggest we deconstruct and analyze it to see how it actually comports with the property norms that a free society and the Supreme Court have already written on this constitutional slate. Those are the norms that have been deemed essential for a minimal degree of stability in a society that is governed by persuasion rather than by governmental fiat. What is essential in our system of private property, free enterprise, and constitutional protection of individuals is that people be able to know what their rights and liabilities are without years (or even decades, as too many of the regulatory taking cases illustrate) of litigation. Given a choice between working to make the existing system work as designed and shifting to Professor Singer’s progressive norms, I have no problem opting for the former.

The fundamental problem with Professor Singer’s concept of “property as the law of democracy” is that it seeks to overwrite the slate on which our Constitution is already written.  In doing so, he overlooks the reality that it is societies that have evolved reliable property rules, protected by the rule of law, that also enjoy a high degree of personal and political freedom while others have not.

Michael Berger, Property, Democracy & the Constitution, 5 Brigham-Kanner Property Rights Conf. J. ___ (forthcoming 2016) (footnotes omitted). The discussion that followed was spirited, and highlighted the differences between those of us who have come to the conclusion that property rights are the guardian of every other right, and those who view regulation and the "rights" of the majority as more compelling than the rights of the individual. 

We moderated a discussion about property rights and civil forfeiture laws, and we'll upload a summary of that in our next post. 

Penn Central, Part Deux? A New Complaint Alleges A Taking Of Grand Central Air Rights

Check this out, a story in the September 28, 2015 edition of the New York Times, "Owner of Grand Central Sues Developer and City for $1.1 Billion Over Air Rights."

Reminds us of this obscure Supreme Court case we heard about...

The Times reports that the current owner of Grand Central Terminal is, with the counsel of uberlawyers, suing New York City in federal court, alleging a taking and related. So what's this all about (we thought this was "old, unhappy, far-off things, And battles long ago")?

Apparently, the city granted a Grand Central neighbor permission to build a massive 1500 feet high office tower, and in doing so, took Grand Central's property (its air rights) without compensation:

On Monday, Mr. Penson filed a $1.1 billion lawsuit in United States District Court in Manhattan that argued that the administration of Mayor Bill de Blasio, a Democrat, the City Council and the developer, SL Green Realty Corporation, had deprived him of his property rights when the city gave SL Green permission to build a 1,501-foot tall office tower, without having to buy any air rights from him.

The lawsuit involves complex questions of zoning, constitutional law, politics and potential conflicts of interest, but it boils down to what always matters most in New York real estate: millions and millions of dollars.

The  Complaint, filed Monday in the Southern District of New York, has more detail, and spells out the legal claims, which include a taking without public use, just comp under both the federal and New York constitutions, spot zoning, breach of contract, and more.

We haven't had time today to peruse it in detail, because we're on the road for the Brigham-Kanner Conference at the William and Mary Law School and because we're trying to get a brief done without missing a deadline.

But we'll leave you with these quick thoughts, and then we'll return with more once we've had a better chance to review the complaint:

• How do you file a takings case in federal court which seeks just compensation under the Fifth Amendment without even addressing Williamson County ripeness in your complaint? Maybe uberlawyers don't bother with such details, and it's only the mere mortals such as we who allow little things like Supreme Court precedent (no matter how wrong) to get in our way. Or is this another "show but no 'go'" takings lawsuit, destined to garner fawning press coverage, but not really to win?
• Current owner bought the place nine years ago. Restrictions on air rights seem like they've been in place a lot longer than that. Palazzolo issues, anyone?

Stay tuned, as always

Complaint, Midtown TDR Ventures LLC v. City of New York, No. 15-cv-07647-PGG (S.D.N.Y. Sep. 28, 2015)

Join Us: 2015 Brigham-Kanner Conference At William And Mary Law School

As we've done every year lately, we're soon headed to the Brigham-Kanner Property Rights Conference at the William and Mary Law School in Williamsburg, Virginia.

This year, the B-K Property Rights Prize will be awarded to Harvard lawprof Joseph Singer, who is, shall we say, an interesting choice, given his theory that a "robust regulatory structure" goes hand-in-hand with property rights, liberty, and the free market. Robust regulation isn't exactly what you might think of when you think "property rights," is it? So it should make for an interesting conference.

Professor Singer publishes a blog that is worth following, "Property Law Developments." It is not one of those blogs that are heavy on the analysis, but its a good place to keep up on recent developments in all things property law. 

The plaque pictured above is a list of prior prize winners.

Here are the conference details:

• Prize dinner: Thursday, October 1, 2015, Wren Building, William and Mary College. Join your colleagues and past awardees for a candlelit dinner and awarding of the B-K Prize to Professor Singer in the building where several of the founding fathers read law. Pretty neat, and the reception and dinner are a highlight of the conference.
• Conference: Friday, October 2, 2015, Law School. Panels include "Property as a Form of Governance," "Civil Forfeiture of Property," "Of Pipelines, Drilling, & the Use of Eminent Domain," and "Property Rights in the Digital Age." The usual stellar faculty will present.  

Here's the complete schedule of events. 

I'll be moderating the Civil Forfeiture panel, which features Sara Sun Beale of Duke Law, Scott Bullock of the Institute for Justice, and Sandra Guerra Thompson of the University of Houston Law School. Here's the description of what we're going to discuss:

Civil forfeiture laws allow government to seize private property without convicting or even charging the property owner of a crime. Used by a wide variety of state, local, and federal officials, the laws have resulted in the seizure of homes, cash, cars and other personal property of people never charged with a crime. This practice highlights the disparities in the protection of fundamental rights, suggesting that property rights remain a “poor relation” of other fundamental constitutional rights protected in civil and criminal settings. The panel will evaluate the impact of civil forfeiture laws on property rights and consider what, if any, reforms are needed.

Neat stuff. 

Register here or download the form below and send it in. The $50 registration fee is darn good, and the $100 extra for the dinner and prize ceremony is also well worth it. Hope to see you there in a few weeks. 

Registration, 2015 Brigham-Kanner Property Rights Conference, Oct 2-3, 2015

Audio Of ABA Talk On Starr International v. United States Trial: Taking AIG Without Compensation - The $40 Billion Question

Here's the audio of the recording of the ABA talk we did last week on the Starr International v. USA takings case, "Taking AIG Without Compensation: The $40 Billion Question," now ongoing in the Court of Federal Claims. The materials and links referred to in the talk are available here. If streaming doesn't work for you, download the mp3 here.

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Brigham-Kanner Property Rights Conference - Panel Videos Now Available

For those of you who couldn't join us at the William & Mary Law School last month for the Brigham-Kanner Property Rights Conference (see our report here), the law school has made videos of the four panel presentations available here. 

They're high quality videos, so be prepared for big downloads, but the presentations are worth it. While they are all good, our favorite was the impromptu discussion/debate during the third panel, "Balancing Private Property and Community Rights," featuring panelists Kames Burling (Pacific Legal Foundation), Professors Richard Epstein (NYU), Steven Eagle (Geo. Mason), Mark Poirer (Seton Hall), and James Stern (William & Mary). 

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2014 Brigham-Kanner Property Rights Conference Report: Honoring Michael Berger

2014 Brigham-Kanner Property Rights Conference Report: Honoring Michael Berger

 

"You can't have rights without advocates."

                              - Michael Berger

We're at the William and Mary Law School in Williamsburg, Virginia today for the 11th Brigham-Kanner Property Rights Conference. As we've noted earlier, Michael Berger is this year's B-K Prize honoree, for his career contributions to property law and his "scholarly work and accomplishments [which] affirm that property rights are fundamental to protecting individual and civil rights."

The list of past recipients is an All-Star roster of property scholars and jurists, including lawprofs Frank Michelman, Richard Epstein, James Ely, Carol Rose, Thomas Merrill, and Supreme Court Justice Sandra Day O'Connor (the latter perhaps more for where she ended up in her Supreme Court career than where she started). See the plaque on the Law School's wall for the complete list of prizewinners. Quite a line up, no?

This is the first time that the Prize has been awarded to an actual practicing lawyer, and the today's panels are focusing on the role of the advocate in defining property rights. Mike started the day's short career retrospective with the quote above. 

Legal scholars have their place, of course. They spend their careers thinking, researching, and writing about the "why's" and the "should be's" of the law. But without lawyers to detail the "how's," and who advocate for actual clients, these lofty academic theories would remain just theories. It's the practicing bar representing clients who decide what cases to present to the courts, who craft the arguments that the judges eventually adopt (or don't), and who take the theories and translate them to the real world where they actually matter.

Legal scholars may pump up the tires, but it's practicing lawyers who ride the bike.

Other prizewinners have a mix of practice and academics (such as Professors Thomas Merrill and Richard Epstein), but not nearly the full-time level of Mike Berger. Given that the B-K Prize is named after a practicing lawyer (Toby Brigham) and an advocate/academic (Gideon Kanner), presenting it to Mike Berger is particularly appropriate, since in addition to his practice, he has also created a body of scholarly work.  

If you haven't had a chance to attend the Brigham-Kanner Conference, you really should consider doing so in the future. It is, in our opinion, the best one-day-and-a-bit-more academic conference of its kind. The speakers, which include past prizewinners, other notable property law academica (David Callies [U. Hawaii], Orin Kerr [George Washington U.], Weixin Shen [Tsinghua University, Beijing], and Steve Eagle [George Mason] for example), and practitioners (Jim Burling [PLF], Dana Berliner [IJ], Janet Bush Handy [State of Maryland], and Joe Waldo [Waldo & Lyle, Norfolk, Virginia]), are really interesting and exciting for those of us who do this for a living. We've been appointed to serve on the B-K Conference's Board of Advisors, and we're already planning future events.  

And the highlight of the Conference is the event at which the Prize is awarded, a candlelight dinner in the historic Wren Building, in the room in which John Marshall and Thomas Jefferson read law. Here's Mike with the four past prizewinners in attendance at the dinner last night.

Please also note that the Brigham-Kanner Property Rights Conference Journal is published as a record of the Conference (volume 3 is available here). 

As a parting shot, I'll re-share one of my favorite Mike Berger moments (which didn't even involve him personally). At the tail end of a teleseminar on land use and regulatory takings a few years ago, the panel accepted questions from the audience. When one of the 50+ attendees asked a question about what the first step he and his clients should take having just lost a regulatory takings case in a trial court (the details of which escape me now), one panelist -- a government lawyer -- responded, "you mean after you call Mike Berger?"

Who among us hasn't thought the same thing?

October 30-31, 2014: Brigham-Kanner Property Rights Conference @ William & Mary Law

A reminder: the 11th annual Brigham-Kanner Property Rights Conference is coming up on October 30-31, 2014, at the William and Mary Law School in Williamsburg, Virginia. As we noted earlier, Michael Berger will receive the Brigham-Kanner Prize, so this one is special - he's the first practitioner to receive the Prize.

More here, from W&M, including agenda and registration information. Here's the flyer.

We're going - hope to see you there. 

11th Annual Brigham-Kanner Property Rights Conference - Oct 30-31, 2014 - Michael Berger

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Farpotshket Alert: Plan To Take Mortgages By Eminent Domain Is Back

Like a visiting relative who won't go home, the idea to seize underwater-but-performing mortgages is still hanging on. The llatest chapter is brought to us by way of our New York colleague Mike Rikon, who writes:

At a press conference on the steps of City Hall, City Council members and housing advocacy groups called on the Mayor to help homeowners who are at risk of foreclosure. Such help would come in the form of using eminent domain to “buy back mortgages where homeowners owe more than their houses are worth.”

According to a CBS report on June 25, 2014, “under the proposed plan, City government would purchase the mortgages from banks and refinance them to match the home’s value to prevent foreclosure.” 

Mike notes that nearly two years ago (and several times since), we suggested that this plan was not clearly legal, and even if it were, was not really a great way to address any problem with the difficult mortgages. Eminent domain can be a very effective tool when the government must acquire privately-owned land that it needs for public works projects, but not so effective when it is used "creatively" as a tool for social engineering and economic redistribution:

The idea was the subject of a discussion by a panel of eminent domain experts at the annual ALI-CLE Eminent Domain and Land Valuation Litigation Seminar held in Miami Beach, Florida on January 24, 2013.* Robert Thomas, author of Inverse Condemnation, an indispensable blog [barista's note: mahalo for the nice plug, Mike], wrote in a paper on the subject:

I turn now to the recent proposal that seems to be gaining the most traction in California, for municipal governments to use eminent domain to seize underwater-but-performing mortgages, the topic of our discussion. Proponents of the scheme argue it will fix the burst bubble and right the housing market, all at little to no cost to the public. Call me a skeptic, bu this plan sounds like those from my home jurisdiction that went all farpotschket. But I won’t go into the wisdom of the plan as that is beyond my meager powers as a lawyer; let’s just say I was officially agnostic until I heard the CEO of Mortgage Resolution Partners– the outfit that is spearheading the proposal– remark at a recent conference on the topic that eminent domain will have no cost. Call me a skeptic, but any time someone suggests a plan, whether or not it involves leveraging the power of eminent domain, I become highly skeptical. Eminent domain will have “no cost”? For a plan that, I think, has not fully thought out whether it will pass muster under even the low Berman-Midkoff-Kelo bar or the particulars of California’s law of necessity. And the proponents’ belief that they have correctly calculated just compensation for the underwater-but-performing mortgages appears overly simplistic and too optimistic to me. If that situation ever develops into litigation, it will be the “one-percenters,” not our homeless friends on Skid Row, who will be asserting and defending property rights.

We still think that's the case, and despite more time to vet the legal issues and the economics, the plan doesn't seem any better, nor the issue any more pressing. For a flavor, see some of our earlier myriad posts on the issue:

• Mortgage Monday (links to stories about Richmond, California's on-again, off-again plan to do the same). 
• Guest Post: More On The Two Federal Lawsuits Challenging The Underwater Mortgage Taking Scheme (the Richmond plan was attacked in Federal Court immediately before the case was ripe).
• New FOIA Complaint Seeks Information About Underwater Mortgage Eminent Domain Issue (a federal agency was served with a complaint to disclose its documents on the issue). 
• Surprise - New Article In Mortgage Resolution Partners Law Review: Use Of Eminent Domain To Take Mortgages OK! (a law review article published by Robert Hockett, the lawprof who thought up this scheme). 
• Materials And Links From Today's ALI-CLE Presentation On Condemnation Of Underwater Mortgages (stuff from a presentation we did on the issue in January 2013 with co-panelist Professor Robert Hockett).
• Professor Ely, You Magnificent Bastard, I Read Your Book! (Our original commentary on the plan).

As we say, stay tuned, especially if New York City actually follows through on this plan. 

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New Article Of Note: The Role Of Eminent Domain Abuse In Detroit's Downfall

Worth reading: Gideon Kanner, Detroit and the Decline of Urban America, 2013 Mich. St. L. Rev. 1547 (2014), in the forthcoming issue of that august publication. Its not yet available on the law review's web site, but Professor Kanner has written up a summary on his blog (he might even send you a copy of the complete article if you ask him):

It deals with the causes of decline of older American cities; what caused their populations to leave en masse and move to the suburbs, leaving behind empty swaths of urban desolation (If you want to see how desolate, go to Google, type in “ruins of Detroit” and hit “enter.’ Here are some samples).

His summary includes the key points of the article, and identifies six factors as contributing to urban flight and depopulation, including abuse of the eminent domain power. 

The article is a fascinating and enjoyable read, and a crash history lesson for those of us who were only partly around to watch in real time as this all unfolded. Highly recommended. 

Mike Berger To Receive 2014 Brigham-Kanner Property Rights Prize From William & Mary Law School

Each year, the William and Mary Law School's Property Rights Project awards the Brigham-Kanner Property Rights Prize to a deserving person "whose work affirms that property rights are fundamental to protecting and preserving individual liberty." This list of past recipients is an All-Star roster of property scholars and jurists, including lawprofs Frank Michelman, Richard Epstein, James Ely, Carol Rose, Thomas Merrill, and Supreme Court Justice Sandra Day O'Connor. 

The Project just announced that Michael Berger has been selected as the 2014 recipient of the Prize. As noted, Mike "is the first practicing lawyer to receive the prize and is widely considered to be among the best takings lawyers in the nation." The Prize will be presented at the 11th Annual Brigham-Kanner Property Rights Conference, on October 30-31, 2014 at the Law School in Williamsburg, Virginia. 

Here's the full story:

Berger to Receive 2014 Brigham-Kanner Property Rights Prize

by Jaime Welch-Donahue |  April 14, 2014

Michael M. Berger, a partner in the Los Angeles office of Manatt, Phelps & Phillips, will receive the 2014 Brigham-Kanner Property Rights Prize at the 11th annual conference on October 30-31 sponsored by the William & Mary Property Rights Project, the Law School announced today. The project presents the Brigham-Kanner Property Rights Prize each year to an individual whose work affirms that property rights are fundamental to protecting and preserving individual liberty. Berger is the first practicing lawyer to receive the prize and is widely considered to be among the best takings lawyers in the nation.

Joseph T. Waldo, a 1978 graduate of the Law School and an attorney at Waldo & Lyle in Norfolk, Va., is co-chair of the conference coordinating committee. Waldo said Berger has had a tremendous impact on the field of property rights law during his distinguished career. "Practitioners shape the law by selecting and litigating cases that will advance causes and positions important to society," Waldo said. "Mike Berger's career demonstrates a successful practice in which he has shaped the law at the highest levels of both state and federal court.  His practice, scholarship, publications, and teaching make his recognition as the 2014 Brigham-Kanner Prize recipient well deserved."

Mark F. (Thor) Hearne II, a partner in the Washington, D.C., office of Arent Fox, commented that "Michael Berger is one of the great modern champions of this foundational constitutional principle. And all those who cherish the Fifth Amendment owe Michael a great debt for his years of principled advocacy defending this essential concept." Hearne noted that Berger's energetic defense of property owners contributed major decisions to Fifth Amendment jurisprudence in cases such as Tahoe-Sierra (where Berger's opposing counsel was John Roberts, who later became Chief Justice of the U.S. Supreme Court), Del Monte Dunes, Presault, and First English.

Robert H. Thomas, who practices law in Hawaii at Damon Key Leong Kupchak Hastert, said Berger "represents the best of the academic and practice worlds: the author of countless scholarly articles, and a compelling advocate in landmark cases. By so doing, he has advanced the law and in the process served as a model and mentor." Thomas noted that at the end of a seminar he attended, an audience member asked: "What should my client do after we've lost a regulatory takings trial?" One panelist - a government lawyer - responded, "You mean after you call Mike Berger?"

After attending Brandeis University, Berger received his J.D. from Washington University School of Law and his LL.M. (in real property) from the University of Southern California.

The Brigham-Kanner Property Rights Prize has been awarded annually since 2004. It is named in recognition of the lifetime contributions to property rights of Toby Prince Brigham, founding partner of Brigham Moore, LLP, in Florida, and Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles. Previous recipients include Professor Frank I. Michelman of Harvard Law School (2004), Professor Richard A. Epstein of New York University Law School (2005), Professor James W. Ely, Jr., of Vanderbilt University (2006), Professor Margaret Jane Radin of the University of Michigan Law School (2007), Professor Robert C. Ellickson of Yale University (2008), Professor Richard E. Pipes of Harvard University (2009), Professor Carol Rose of the University of Arizona (2010), Supreme Court Justice Sandra Day O'Connor (2011), Professor James E. Krier of the University of Michigan Law School (2012), and Professor Thomas W. Merrill of Columbia Law School (2013).

For details about the conference schedule and participants, please contact the William & Mary Property Rights Project at [email protected] or call (757)221-3796.

About William & Mary Law School

Thomas Jefferson founded William & Mary Law School in 1779 to train leaders for the new nation.  Now in its third century, America's oldest law school continues its historic mission of educating citizen lawyers who are prepared both to lead and to serve.

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Why We Fight: An Interview With Gideon Kanner, "A Fierce Advocate for Just Compensation"

Be sure to check out this interview with a person we're proud to call a friend and a colleague, Gideon Kanner, in the most recent edition of Right of Way magazine, a publication of the International Right of Way Association.

"A Fierce Advocate for Just Compensation" is a sitdown with Professor Kanner, and covers a lot of ground, so to speak. The entire piece is worth reading, but here's what a colleague pointed out as perhaps the best part:

If you represent a property owner in an eminent domain case, particularly an inverse condemnation one, you must understand that your client is persona non grata or the law’s "poor relation," as U.S. Supreme Court Chief Justice William Rehnquist once said. The California Supreme Court once stated in an opinion that it was its duty to keep condemnation awards down, which is a hell of a hurdle to overcome when your task is to persuade the Justices that your client was undercompensated by the court below. So in those not-so-good ol’ days of the 1960s, when I walked into court, I had my job cut out for me. Sometimes, the hostility emanating from the bench was palpable. As Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit once noted, what property owners in this field often get from the bench is "thinly-disguised contempt." This is not a line of work for the faint of heart.

We agree.

10th Annual Brigham-Kanner Property Rights Conference And Prize - Thomas Merrill

The last couple of days, we've returned to Williamsburg, Virginia to attend the annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.

The Conference is the annual gathering of legal scholars and practitioners who focus on property law and property rights to celebrate the award the B-K Prize to "an individual whose scholarly work and accomplishments affirm that property rights are fundamental to protecting individual and civil rights." The list of past winners is a who's who of property scholars and includues James Ely, Richard Epstein, Carol Rose, and Frank Michelman.

This year's prizewinner is Columbia Law's Thomas Merrill. The Conference panelists have thus far focused on his scholarship, including his landmark article on the right to exclude, titled, not surprisingly, Property and the Right To Exclude, 77 Neb. L. Rev. 730 (1998).

Our Owners' Counsel colleage Mark Savin speaking about "Defining the Essence of Property."

Professor Merrill, giving some perspective on his work, and the topic of the day.

2013 Brigham-Kanner Property Rights Prize: Professor Thomas Merrill

William & Mary Law School, host of the annual Brigham-Kanner Property Rights Conference, has announced that Columbia Law School Professor Thomas W. Merrill will receive the 2013 B-K Prize at the conference (October 17-18, 2013, Williamsburg, Virginia). The photo above is of the plaque on the wall at the William & Mary Law School listing B-K Prize winners.

The Conference agenda and speakers have yet to be finalized, but here's the tentative list of topics:

• The Impact of a Leading Property Scholar: Defining the Essence of Property

• Promoting Government Forbearance

• The Implications of the Court's Recent Takings Cases

• Property Rights in Times of Transition

We spoke at the 2012 Conference in Williamsburg, and attended the 2011 Conference in Beijing. The 2013 lineup sounds pretty good, so mark your calendars.

60 Minutes On China's (Possible) Housing Bubble

Update: we removed the embedded video that was posted above, since CBS kept replacing it with other clips. Here's a direct link to the video.

As our readers know, we follow with keen interest events in the People's Republic of China (does anyone call it that, anymore?), especially those issues related to property and a budding system of private rights. Here's the latest from CBS's venerable 60 Minutes, about the housing and real estate markets there. If true, it's scary stuff, especially when you consider we live in a global economy, with so much of our goods supplied by the PRC.

China has been nothing short of a financial miracle. In just 30 years, this state-controlled economy became the world's second largest, deftly managed by government policies and decrees.

One sector the authorities concentrated on was real estate and construction. But that may have created the largest housing bubble in human history. If you go to China, it's easy to see why there's all the talk of a bubble. We discovered that the most populated nation on earth is building houses, districts and cities with no one in them.

Here's the full text of the story if you prefer not to sit through the video (but you really should, some of it is eye-opening). But we're not so sure China is bound for the same trouble that the U.S.and European housing markets are enduring. Unlike those economies, China's is primarily built on cash and savings, not credit and leverage. There are a few banks and their deposits are high. People there purchase property for different reasons than people here. China's massive population creates huge demand. Debt is internal, not external.

Will those factors make a difference? We'll see. 

Buying Property In China

A quick one from colleague Christopher Dillon. In How to buy in China, Christopher provides a primer on how to buy a home in the People's Republic. Tip: it isn't cheap. He reminds us:

In China all urban land is owned by the state, while rural land is owned by collectives. Private ownership of land is forbidden, and urban land used for housing is leased from the state for a 70-year term. When you buy a home in China, you purchase the structure and the remainder of the land lease.

Just in case you are thinking of doing a "Depardieu." You know, the Russian actor.

Brigham-Kanner Property Rights Conference Write Up

Here's a slideshow and summary of the recent Brigham-Kanner Property Rights Conference, held at the William & Mary Law School in Williamsburg, Virginia.

Professor Ely, You Magnificent Bastard, I Read Your Book!

Here are my remarks from last week's Brigham-Kanner Property Rights Conference at the William & Mary Law School in Williamsburg, Virginia. Our panel spoke on "Property Rights in Times of Economic Crisis," and included lawprofs James W. Ely (Vanderbilt), William Fischel, (Dartmouth), and Eric Kades (William & Mary). See the complete faculty list and agenda here.

+++++++++++++++++++++++++++++++++++++++

Aloha, I bring you greetings from the land of Midkiff, the land of Lingle.

I practice in the jurisdiction that believed it would cure our economic ills to use eminent domain to bust up the legacy land trusts, and make sure that everyone who owns a home could also own the fee simple interest.

Which they may now do, provided they can afford our median price for a single-family residence, $637,000.

I practice in the jurisdiction that believed that it would be a good idea to try and bring down the price of gasoline to consumers -- and who can doubt that this is a desired public good? -- by regulating the rent that company-owned gas stations could charge service station operators.

Which only resulted in the price of gas going up.

So it is appropriate, given my origins, that I've been asked to speak on the topic of "Property Rights in Times of Economic Crises." The Fifth Amendment, after all, is the only provision in the Bill of Rights (joined perhaps by the Excessive Fines Clause) expressly phrased in terms of economic rights: public use of property, and of course, the just compensation requirement, which requires that justice be measured by the amount of money or other compensation an owner is entitled to when her property is taken.

Of course, my glib side wants to say that if we respected property rights more, we'd have economic crises less, and that if you want to understand how to avoid economic hard times, you simply need to read the scholarship of today's panelists and exclaim, to paraphrase General George Patton -- or, more accurately, actor George C. Scott:

"Professor Ely, you magnificent bastard, I read your book!"

But that would be too easy, and I'd be left yielding 12 minutes of my time to my fellow panelists, and perhaps releasing you early for our lunch break. So to fill that time, I'd like to discuss three illustrations of the importance of property rights when times are tight.

First, property rights, almost by definition, protect those who own property, and property rights are viewed as the province of the wealthy and the powerful, who, current theory goes, deserve lesser judicial protection because their wealth and power give them a means to participate in the political process on a "more equal" basis that their less fortunate fellow citizens.

But a recent decision from the Ninth Circuit repudiates that view.

In Lavan v. City of Los Angeles, No.11-56253 (Sep. 5, 2012), a 2-1 decision from a Ninth Circuit panel, two judges viewed as "liberal," including Judge Stephen Reinhardt, the judge who gave us the bizarre economic theory that eventually bore fruit in the Tahoe-Sierra majority (it's OK to wipe out all value temporarily, because the property will "eventually recover its value"), held that the City of Los Angeles could not presume that property owned by homeless people in the Skid Row area was abandoned, and prohibited the City from seizing and destroying it when the owner was "momentarily away" from it.

This being the Ninth Circuit, the majority judges were more comfortable basing the ruling on the Fourth Amendment and not the Fifth. But get a load of this quote:

As we have repeatedly made clear, "[t]he government may not take property like a thief in the night; rather, it must announce its intentions and give the property owner a chance to argue against the taking." Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008). This simple rule holds regardless of whether the property in question is an Escalade or an EDAR [a small, portable shelter provided to homeless people], a Cadillac or a cart. The City demonstrates that it completely misunderstands the role of due process by its contrary suggestion that homeless persons instantly and permanently lose any protected property interest in their possessions by leaving them momentarily unattended in violation of a municipal ordinance. As the district court recognized, the logic of the City’s suggestion would also allow it to seize and destroy cars parked in no-parking zones left momentarily unattended.

Slip op. at 10591.

From this case, I glean the constitutional rule that "one man's junk is another's gold," a rule that undoubtedly has allowed the creators of e-Bay to earn billions, and the producers of reality TV shows to schedule seemingly infinite programming. But all kidding aside, this is a great point by the Ninth Circuit (something I am not able to say with much frequency): if property rights are frequently asserted by those who own lots of property, they surely protect those who have little. Because there, but for the grace of God, go I.

But what about the so-called "one-percent?" Aren't they the ones who assert property rights most frequently? I turn now to the recent proposal that seems to be gaining the most traction in California, for municipal governments to use eminent domain to seize "underwater" but performing mortgages.

Proponents of the scheme argue it will fix the burst bubble and right the housing market, all at little to no cost to the public. Call me a skeptic, but this plan sounds like those from my home jurisdiction that went all farpotshket, a term that our esteemed colleague for whom the Brigham-Kanner prize is named surely recognizes.

But I'm not here today to offer my thoughts on the wisdom of the plan; let's just say I was officially agnostic until I heard the CEO of Mortgage Resolution Partners remark at a recent conference on the topic that eminent domain will have no cost, and as a consequence I am now against it, or at least highly skeptical. A "doubting Thomas" if you will. Eminent domain will have "no cost?" For a scheme that, I think, has not fully thought out whether it will pass muster under even the low Kelo bar or the particulars of California's law of necessity. And the proponents' belief that they have correctly calculated just compensation for the underwater-but-performing mortgages appears overly simplistic and too optimistic to me. If that situation ever develops into litigation, it will be the "one-percenters," not our homeless friends on Skid Row, who will be asserting and defending property rights.

How much sympathy should we have for those lenders and bankers who are supposedly keeping homeowners in economic bondage? Not much, I guess, but my point is that in the context of defending property rights, who cares who is doing the defending, since we all benefit from the result when the courts rule correctly. We speak quite often -- last night's Vice Presidential Debate being the most recent example -- of our overarching desire to protect the "middle class." But because most of the members of this group cannot afford to litigate to defend their property rights, it is left up to either outfits like Pacific Legal Foundation or the Institute for Justice who can litigate a select few cases pro bono, or the property owners who have the staying power to pay their lawyers to defend their rights, to take up the fight.

If they don't do it, property rights lose. To paraphrase Martin Niemöller, if I don't speak up when they come for the lenders and bankers, when they come for me there will be no left to speak up.

Lastly, a quick word about the case the Supreme Court agreed last week to review, Koontz v. St. Johns River Water Management Dist., No. 11-1447 (cert. granted Oct. 5, 2012). The Court has taken up the question of whether the Nollan/Dolan nexus-proportionality tests apply to government demands for cash, as well as land exactions. This case may also settle other issues such as whether compensation is the sole remedy for a regulatory taking, whether substantive due process or takings the vehicle by which to evaluate exactions, and whether money is "property."

And here I offer a prediction. Not what the Court will do (I will let you guess what position the amicus brief we're going to file will be arguing), but rather than because of the economy in which we find ourselves, and the Questions Presented are expressly about money, that the Court will deal with the contrasts I have highlighted today.

Finally, please allow me to wrap up by offering my thanks to the organizers of this program. To a property owners' lawyer, and an admitted property law nerd, to participate in this conference is like a baseball fan being offered the chance for an at-bat at Yankee Stadium in October. In other words, the pinnacle; a chance to rub shoulders, and perhaps share the limelight for a moment, with the Ruths and the Gehrigs in our field of law. Thank you.

2012 Brigham-Kanner Property Rights Conference

There's still time to join us later this week at William & Mary Law School in Williamsburg, Virginia for the 2012 Brigham-Kanner Property Rights Conference, and the award of the B-K Prize to University of Michigan lawprof James Krier for his lifetime contributions to property law scholarship.

The Conference includes a day-long series of discussions on property rights, featuring leading scholars and practitioners. Topics include "The Impact of a Leading Property Scholar," "The Judiciary’s Role in Shaping Constitutionally Protected Property," "Property Rights in Times of Economic Crisis," and "Property’s Moral Dimension." The day will wrap with a roundtable discussion, "How Fundamental are Property Rights?" The complete agenda is available here.

I will be speaking on the panel about "Property Rights in Times of Economic Crisis," discussing why property rights are even more important when times are tight.

Register on-line here. If you can't join us, I will be posting a report and summary.

Ninth Annual Brigham-Kanner Property Rights Conference & Prize (Oct. 11-12, 2012 ), William &...

More On The Ninth Circuit's Ruling That Homeless Have Property Rights, Too

Here's a follow up to our earlier brief post about the opinion in Lavan v. City of Los Angeles, No.11-56253 (Sep. 5, 2012), in which a 2-1 Ninth Circuit panel held that the Fourth and Fourteenth Amendments protect the homeless against the City of L.A.'s seizure and destruction of their "momentarily unattended" property. The city undertook these efforts to clean up the "skid row" section of downtown.

Honolulu has an ordinance that has a similar purpose and design (to prevent the homeless from clogging up the parks and sidewalks with their "stuff"), but it is constructed quite differently. Instead of prohibiting property from being left unattended, it prohibits the "storage" of property in public spaces, with "storage" being defined as being left somewhere for more than 24 hours. Leave it unattended for more than that time, the city will scoop it up and store it at the owner's expense. One doubts that any of this stuff is ever retrieved.

Honolulu Civil Beat reported on the Ninth Circuit opinion, and asked whether it would impact Honolulu's ordinance:

But it’s unlikely that the decision will have a direct bearing on Honolulu’s "stored property" ordinance, according to local land use and property rights lawyer Robert Thomas.

Thomas cited "carefully crafted" nuances in the Honolulu law that effectively distinguish its policies from those deemed unconstitutional in the 9th Circuit case.

"It’s not directly applicable, it doesn’t make our ordinance illegal," he said in reference to the ruling. The ordinance "certainly seems to be shielded up a bit better. It gives the city more ability to address the problem."

One distinction is that the Honolulu ordinance requires the city to store the property upon seizing it. In Los Angeles, city officials would immediately destroy the belongings, said Thomas.

,,,

Still, Thomas — who supports the 9th Circuit decision — said the ruling could have a meaningful effect on how Honolulu officials choose to apply the ordinance.

"It does have a warning sign: You can’t treat people differently because they’re homeless," Thomas said. "The decision really does emphasize that we should think of property rights as civil rights."

Read the entire story here.

That last bit is the important lesson to be learned from Lavan. When a panel of Ninth Circuit judges rule in favor of property rights, with two classic "liberal" judges comprising the majority, you know you are onto something. We can only hope these judges would maintain the same respect for property rights in other cases.

Gideon Kanner adds his thoughts about the case here.

U.S. Law School Curriculum vs. Chinese Law School Curriculum

Here is what future lawyers are learning at the flagship U.S. law school: The Evidence Exam at Harvard Law That Requires No Evidence to Pass (via Above the Law).

Here is what future lawyers are learning at one of the premiere Chinese law schools:

Is "Wukan" Chinese For "Kelo?"

China has been on our mind lately. Maybe it's our recent attendance at the Brigham-Kanner property rights conference held in Beijing in October. Maybe it's last week's talk to our law firm by an old friend on lessons that can be learned from China's move from communism to a market economy.

Whatever is causing China to be on our radar lately, here's the latest big story, on Wukan, the village presently under seige after a mass protest objecting to the sale of village land for real estate development. The above video is not in English, but it doesn't take a translator to get the drift. The print media is also reporting on the situation:

• Inside Wukan: the Chinese village that fought back (The Telegraph (UK))

• China village resists officials' land confiscations (LA Times)

• Small Chinese village revolts; Crackdown near (CBS)

Gideon Kanner has also been following the story (start here).

These type of protests are not uncommon in China (apparently, there are 180,000 "mass incidents" per year there), so it appears unlikely that the Wukan protest will be dealt with by negotiation -- if the government negotiates with Wukan, it will have to do the same elsewhere. We're just hoping that another Tienanmen is not in the works.  

Podcast: The Economy, Politics, And Lessons From China

My old friend and law school classmate Laurence Brahm is in town for a few weeks as a visiting fellow at the East-West Center, and took some time off last week from finishing his latest book to come down to our law firm and share his views on the issues of the day. Here's his talk on the future of the economy, the political situation, and lessons to be learned from China's experience:

Stream it above or download it here (24mb mp3).

In that same vein, here's Laurence's latest article from YaleGlobal Online, "A Global Consensus to Rise and Occupy."

Agree or disagree, Laurence's views are very thought-provoking.

Brigham-Kanner Conference: The Video

In case you missed out on the 8th Annual Brigham-Kanner Property Rights Conference, held last month in Beijing, check out this video (here is the page with links to all of our posts related to the conference).

The Conference was a resounding success, and featured presentations and papers by the creme de la creme of the property academy and practicing bar in the U.S. and China, a truly all-star line up.

Brigham-Kanner Property Rights Conference - "Mere Mortal" Professor Richard Epstein on "Going Red on Property Rights"

Law professor Richard Epstein was a featured speaker (and past Brigham-Kanner prize winner) at the recent B-K Property Rights Conference in Beijing. He's summarized his thoughts and insights in "Going Red on Property Rights," posted at the Hoover Institute's site. He writes:

Earlier this month, I attended a Chinese-American Conference in Beijing on property rights co-sponsored by the William and Mary Law School and the Tsinghua University Law School.  One purpose of the conference was to award in absentia the Brigham-Kanner Prize to retired Justice Sandra Day O’Connor for her contributions to understanding the law of property. The intensive two-day discussions on property rights were open, animated, and cordial. They also revealed deep ironies in both the Chinese and American approaches to property rights.

The entire piece is well worth reading. All of our posts on the B-K Conference are collected here. I'm writing my wrap-up of the Conference and will post it shortly.

In the meantime, I offer this little story.

A few of us are walking the 15 minutes from the hotel to the moot courtroom at the Tsinghua Law School, through the university campus. We cross the lightly traveled road, and most of us step up onto the opposite sidewalk. Professor Epstein, engrossed in conversation with another lawprof, doesn’t notice they are walking down the middle of the road, blocking traffic.

A few seconds later, a car comes up behind them.

In Beijing, pedestrians decidedly do not have the right of way.

"Get out of the road!" we call out.

Epstein slowly turns around, looks at the car, looks at us, and says with a smile, "sidewalks are for mere mortals."

(But he does get out of the road.)

Brigham-Kanner Conference: Justice O'Connor's Acceptance Speech

At the U.S. Embassy in Beijing last Thursday, Justice Sandra Day O'Connor was presented this year's Brigham-Kanner prize. She was not able to attend in person, so delivered her acceptance speech by videotape. In her talk, she discussed the property-related opinions which she either authored or joined, including Midkiff, Nollan, Dolan, Yee, and Kelo. 

The B-K Conference was not simply a celebration of her writings, and there was frank discussion of whether her opinions helped or hurt property owners overall. More on that in a separate post.

Brigham-Kanner Conference: Most Telling Quote

There were many memorable moments and quotes during the three-plus days of the Brigham-Kanner Property Rights Conference in Beijing. But perhaps the most telling came our way second-hand from an ear witness:

At the farewell banquet, a prominent American lawyer was toasting the Tsinghua University Law School students, raising his class with the salute "to the future leaders of China!"

A Tsinghua dean acknowledged the toast, raised his own glass and interjected: "to the future leaders of the world!"

Brigham-Kanner Property Rights Conference - Second Day Photos

Well, we were beset by a series of technical difficulties yesterday (the internet connection suddenly spit us out, we were unable to log back on, our laptop just shut off, followed by mysterious battery problems), so we were not able to continue the live blog.(Was it something we said?)

That's ok, since by then it was 2 am ET, and I suspect no one but the hardest core of takings nerds were up in the wee hours of Saturday following a live blog. Or at least I hope not.

What we'll do instead is post a few of the photos we were able to take (stand by for more from W&M's professional photographer who is accompanying us), and in a subsequent post (today's a tour day) summarize our thoughts about this most unusual legal conference.

Tsinghua Law School

Professor Henry Smith (Harvard) speaking on custom
and the developing law of property.
That's my PLF colleague Jim Burling next to him.

Professor Eric Kades (William & Many) on income and class disparities.
A timely topic, given the events unfolding in the U.S. at the moment.

Professor Yin Fei (Central U of Finance & Economics) speaking on
"Property as an Economic Institution."

PLF's Jim Burling speaking on "Property and the Environment."
Jim was his usual informative and entertaining self.
I listened to the translation since I always wanted to
hear what Jim would sound like in Mandarin.

My Owners' Counsel colleagues Jim Thompson (Maryland) and Leslie Fields
(Colorado) speaking on "How Practitioners Shape the Law."
The conference was dominated by academics, but the afternoon
session was about how lawyers in both the U.S. and China
are on the edge of the law, pushing it towards being more just.

Dense powerpoint slides are difficult in any language.
The simultaneous translation staff was excellent, with nearly
real-time translation of the presentations.

Brigham-Kanner Conference: This Is What They Are Studying In Chinese Law Schools

In the hallway of the main building of the Tsinghua Law School is an electronic billboard with notices of upcoming events and classes.

This is what they are studying at Chinese law schools.

Any questions?

Brigham-Kanner Conference: In China, Property Rights Are In The First Amendment

Most interesting comments at tonight's event awarding the Brigham-Kanner prize to Justice (Ret.) Sandra Day O'Connor were the remarks by the Dean of Tsinghua Law School.

"When you amended your Constitution for the first time," he noted, "you protected things such as speech. When China amended its Constitution for the first time, we protected property."

Brigham-Kanner Property Rights Conference - Live Blog Second Day

Live blogging the second day of the Brigham-Kanner Property Rights Conference from the moot courtroom at Tsinghua Law School, Beijing PRC.

Brigham-Kanner Conference Photos

The Moot Court room

Shen Weixing, Dean and Law Professor

Professor Wang Liming

Mark (Thor) Hearne

The audience

Professor Michelman

Professors Epstein, Jiang, and Michelman

Professor Ely

Professors Michelman and Salkin

Professor Jiang

Dean Shen, Joe Waldo

Professor Jie

Alan Ackerman

Group photo from the audience point of view.
We'll post the group photo later.

Professor Alexander

A professional photographer is taking shots for the record.
Until those are made available, you will have to settle for ours.

Professor Hui

The Moot Courtroom at the law school is very wired.

A full transcript is being recorded, and will be available.

Professor Hui

Brigham-Kanner Property Rights Conference - Live Blog

We're live at the Brigham-Kanner Property Rights Conference in Beijing.

Brigham-Kanner Conference Warmup

The actual conference does not begin until tomorrow (see schedule here), but today is the warmup. Starting with a tour of the Forbidden City, the U.S.'s leading property law scholars and practitioners joined about 50,000 other people (it seemed), and took the obligatory look-see.

These days, it hardly seems "forbidden." To anyone. It felt like 1/2 of the population of Beijing was there. Most definitely a change from the last time I was here.

Tonight is the reception at the U.S. Embassy in honor of Justice Sandra Day O'Connor. I won't be able to bring you any photos of the event. For security reasons, the Embassy forbids (there's that word again) cameras, mobile phones, and similar. If we're lucky, an official photographer will be there and I can cajole him into letting us access a photo or two.

Brigham-Kanner Conference: Professor Kanner's (First) Thoughts

At a conference and awarding of a prize named in part in his honor, we lead off with the thoughts on Professor Gideon Kanner from his Gideon's Trumpet blog on how the People's Republic of China is dealing (or not) with the whole "property rights" thing:

• Eminent Domain in China – How It’s Seen (or Not Seen) in Academia

• Those Spreading Eminent Domain Riots in China, and Their Implications

• Eminent Domain in China -- The Fire This Time

Now, it would not be a Gideon Kanner commentary without some provocative thoughts:

And so it goes. Still, be all that as it may, we experience a feeling of revulsion whenever we come across this sort of thing, where American law that is said to be of the people’s government that is the embodiment of due process, fairness and equity, turns out in some ways to be not all that much different than the law of a barbaric government like China’s autocracy.

Only in eminent domain law!

Or this one:

But all is not lost in Academe. The good news is that next week, the William & Mary College School of Law, together with Tsignhua University, will co-sponsor a symposium on property rights, to be held in Beijing. It remains to be seen what participants in that Beijing conference will have to say about the violence over private property rights, that is going on in China even as we write.

More to come as the conference progresses.

Brigham-Kanner Conference In Beijing: Reflections On A Three-Decade Absence

As I travel to Beijing today for the Brigham-Kanner Property Rights Conference, I'm drawn back thirty-three years to my first (and only prior) visit to the People's Republic of China.

It was a different China in 1978. Just emerging after nearly thirty years of isolation and mostly closed off to the western world, it indeed emphasized the "People's Republic" part of its name. Chairman Mao was less than two years dead and Hua Gofeng, Mao's successor, had only recently ended the Cultural Revolution. Most people still wore the zhongshan (aka Mao suit), carried their copy of the "little red book" (Quotations From Chairman Mao) in a pocket, and the only contact they'd ever had with foreigners was perhaps with visiting Soviet officials. Beijing was a flat city with very few structures taller than the Great Hall of the People.

To enter the PRC from the west, you needed to fly to Hong Kong, take a train across the New Territories to the Lo Wu station, then disembark and literally walk across the border on the wooden bridge. Compare the photo below to the Lo Wu station today.

Lo Wu Station and border crossing 1978

Thankfully, you can now fly directly to and from the US (via inter alia UAL 888, very cheeky, United. Another auspicious note: this is the 8th Annual B-K Conference...a coincidence? I think not).

Auto traffic in Beijing and other cities was nonexistent (there literally were no private cars on the roads, no streetlamps, and cars drove without their headlights on at night). No one except high party officials had access to an automobile. Only two hotels in Beijing were open to westerners, and the rooms had no locks.

And before "Tiananmen Square" took on negative overtones, it was the political and spiritual center of the socialist government, and quite empty most of the time.

Tiananmen Square/Gate, uncrowded in 1978. Compare this vista to last week. 

Even then, a trip to the Great Wall was obligatory. But it looked much different than it does today.

Great Wall, 1978. Versus last week.

And in 1978, I would never have imagined that in conjuction with a Chinese law school, a major US law school would be holding a legal conference in Beijing. Much less a conference expressly devoted to property rights, featuring leading American legal scholars and practitioners who have been invited to discuss topics such as "Property as an Instrument of Social Policy," "Culture and Property," and "Property as an Economic Institution" with their Chinese counterparts.

Nor would I have imagined that China would tolerate protests by "middle class homeowners" upset over the destruction of their property or lack of proper compensation, or that we'd be following along with property issues in China, because this is pretty much all you got in 1978:

In case you can't read the sign: "We must adhere to proletarian internationalism. Strengthen the unity between our party and the genuine Marxist-Leninist parties and organizations all over the world. Strengthen the unity between the people of our country and the people of all other countries. Especially those of the third world countries. Unite with all the forces in the world that can be united, and carry the struggle against imperialism, social-imperialism and modern revisionism through to the end."

So please stay tuned this week for more from the Conference. I understand we'll have internet access so I plan on live blogging (or tape-delay blogging due to the time difference) to add my observations about if and how the People's Republic recognizes property rights, whether China has any plans to beat us at our own game, what the future may hold, and what more is available to drink besides hot tea, lukewarm orange soda, and maotai (the only beverages available in 1978).

Comments are open on this post, so feel free to add yours.

New Category: Brigham-Kanner Property Law Conference (Beijing)

Admin note: in preparation for the upcoming conference, we've added "Brigham-Kanner Conference" as a separate category.

To read all of the posts related to the Conference, go here.

 

Blogging From Beijing: The Brigham-Kanner Property Rights Conference

Next week, power adapters and internet connectivity permitting, we'll be blogging from the Brigham-Kanner Property Rights Conference at the Tsinghua University School of Law in Beijing, People's Republic of China.

Admin note: We've added "Brigham-Kanner Conference" as a separate category to catalog the posts related to the Conference. In order to read all of the posts under this topic, go here.

A property rights conference in the PRC? Should be interesting.

Here's the agenda and the list of sessions.

The honoree this year is Justice Sandra Day O'Connor. The speakers include the past winners of the B-K prize, Frank Michelman, Richard Epstein, James Ely, Margaret Jane Radin, Robert Ellickson, Richard Pipes, and Carol Rose. In addition to these luminaries in the property law and property rights field, the speakers include the top property law scholars and practitioners in the U.S. (Alan Ackerman, Andy Brigham, Jim Burling, David Callies, Leslie Fields, Mark (Thor) Hearne, Patty Salkin, and Joe Waldo, to name a few), and many scholars of Chinese property law from our host country. See the complete list here.

We'd add our usual "hope to see you there" (and we do), but if you haven't already made your flight reservation and secured your visa, it's probably too late to sign up now (trust us, we spent the day in a five-hour line at the Chinese Consulate to secure ours).

But if you won't be attending in person, it just means you'll have to tune in here next week and follow along. We'll try and bring you as much of it as we can.