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Friday, March 10, 2006

Ownership of "Frozen Embryos" -- Evans v. United Kingdom

The European Court of Human Rights recently issued an opinion in Evans v. United Kingdom, an interesting case involving ownership of so-called "frozen embryos" after a couple splits up.  After she developed pre-cancerous tumors of both ovaries, Evans and her partner (referred to as "J" in the opinion) had several fertilized ova created through in vitro fertilization.  Pursuant to England's Human Ferilisation and Embryology Act of 1990, both partners can withdraw consent to the use of the frozen embryos up to the point of implantation.  Evans and J split up and J withdrew his consent.  Evans argued that the frozen embryos represented her only chance to have biological children, but lost at every level, including the ECHR, because of England's legislative consent scheme.  The opinion is an interesting read in its entirety, but is particularly notable for this summary of how legislatures and courts in various jurisdictions have addressed the issue:

B.  The position in other countries

1.  The Member States of the Council of Europe

31.  On the basis of the material available to the Court, including the “Medically Assisted Procreation and the Protection of the Human Embryo Study on the Solution in 39 States” (Council of Europe, 1998), the situation in the various Member States of the Council of Europe would appear to be as follows. In Denmark, France, Greece and Switzerland, the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in legislation; in the Netherlands, this rule is included in secondary legislation. In Belgium, Germany and Finland clinical practice appears to conform to this model, and it further appears that, as a matter of law or practice, in Iceland, Sweden and Turkey the male donor enjoys a similar power of veto to that afforded by the United Kingdom.

32.  A number of countries have, however, regulated the consent issue differently. In Hungary, for example, in recognition of the fact that medically-assisted reproduction represents a far heavier burden for the woman than for the man, and absent any prior written agreement to the contrary, the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple. In Austria, Estonia and Italy the man’s consent can be revoked only up to the point of fertilisation, beyond which it is the woman alone who decides if and when to proceed. In Spain, the man’s right to revoke his consent is recognised only where he is married to and living with the woman.

2. The United States of America

33.  The field of medically assisted reproduction is not regulated at federal level in the United States, and since few States have introduced laws concerning the subsequent withdrawal of consent by one party, it has been left to the courts to determine how the conflict between the parties should be resolved. There is, therefore, a series of judgments by State Supreme Courts regarding the disposal of embryos created through IVF.

34.  In Davis v. Davis, (842 S.W.2d 588, 597; Tenn. 1992), the Supreme Court of Tennessee held in 1992:

“...disputes involving the disposition of pre-embryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail.”

35.  In Kass v. Kass (98 N.Y. Int. 0049), the couple had signed an agreement with the clinic which stipulated that, “in the event that we ... are unable to make a decision regarding the disposition of our frozen pre-zygotes”, the embryos could be used for research. When the couple separated, Mrs Kass sought to overturn the agreement and proceed to implantation. Although she prevailed at first instance (the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of IVF), the New York Court of Appeal decided that the existing agreement was sufficiently clear and should be honoured.

36.  In A.Z. v. B.Z, (2000, 431 Mass. 150 ; 725 N.E. 2d 1051) there was again a previous written agreement, according to which, in the event of separation, the embryos were to be given to the wife, who now wished to continue with the treatment, contrary to the wishes of the husband. However, the Supreme Court of Massachusetts considered that the arrangement should not be enforced because, inter alia, as a matter of public policy “forced procreation is not an area amenable to judicial enforcement”. Rather, “freedom of personal choice in matters of marriage and family life” should prevail.

37.  This judgment was cited with approval by the Supreme Court of New Jersey, in J.B. v. M.B. (2001 WL 909294). Here, it was the wife who sought the destruction of the embryos while the husband wanted them preserved for use with a future partner. Although constitutional arguments were advanced on behalf of the wife, the court declined to approach the matter in this way, reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights. Instead, the court subscribed to the view taken in the Z. case regarding public policy and ordered that the wife’s wishes be observed.

38.  In the final case in this series, Litowitz v. Litowitz, (48 P. 3d 261, 271), the Supreme Court of Washington decided in 2002 to adopt a contractual analysis and to honour the couple’s agreement with the clinic not to store the embryos for more than five years.

4.  Israel

39.  In Nachmani v. Nachmani (50(4) P.D. 661 (Isr)) a childless Israeli couple decided to undergo IVF and then to contract with a surrogate in California to bear their child because the wife would not be able to carry the foetus to term. The couple signed an agreement with the surrogate, but not with the IVF clinic regarding the disposal of the embryos in the event of their separation. The wife had her last eleven eggs extracted and fertilised with her husband’s sperm. The couple then separated, before the embryos could be implanted in the surrogate, and the husband, who had gone on to have children with another woman, opposed the use of the embryos.

The District Court found in favour of the wife, holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife’s egg through sexual intercourse. A five-judge panel of the Supreme Court reversed this decision, upholding the man’s fundamental right not to be forced to be a parent. The Supreme Court reheard the case as a panel of eleven judges and decided, seven to four, in favour of the wife. Each judge wrote a separate opinion. The judges in the majority found that the woman’s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man. Three of the minority judges, including the Chief Justice, reached the opposite conclusion, emphasising that the wife had known that her husband’s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated. The fourth of the dissenters held that the man’s consent was required before the obligation of parenthood could be imposed on him.

Ben Barros

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March 10, 2006 in Property Theory, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, March 9, 2006

Resources on Affordable Housing

Tim Iglesias generously sent along a very helpful list of resources on affordable housing.  Because this list is from a forthcoming book, the following copyright notice applies here:

This resource list is the Appendix from Iglesias, Tim & Lento, Rochelle, eds., The Legal Guide to Affordable Housing Development © 2005 American Bar Association.  Reproduced with permission.  All rights reserved.  This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Thanks to Tim and the ABA for giving their permission.  Here's the list:

General Resources

1. www.abanet.org/forums/affordable/home.html  ABA Forum on Affordable Housing and Community Development Law (The Forum hosts conferences and publishes the Journal of Affordable Housing and Community Development Law quarterly (available on Westlaw only; future issues will be available on the website of AHC Forum for Forum members only)

2. www.abanet.org/statelocal/home.html  ABA State and Local Government Law Section (The Section serves as a collegial forum for its members, the profession and the public to provide leadership and educational resources in urban, state, and local government law and policy)

3. www.bettercommunities.org  Building Better Communities Network (a national organization devoted to increasing community acceptance of affordable housing with award-winning website full of resources)

4. www.communitychange.org   Center for Community Change (an organization dedicated to helping low-income people, especially people of color, build powerful, effective organizations through which they can change their communities and public policies for the better)  CCC’s resources on housing trust funds are available at http://www.communitychange.org/issues/housing/trustfundproject/ (last visited on June 2, 2005)

5. www.hud.gov  U.S. Department of Housing and Urban Development (one of the primary federal agencies responsible for affordable housing development) and www.huduser.org  HUD Policy Development and Research Information Service (providing housing information and research with over 800 publications and datasets)

6. www.Knowledgeplex.org (sponsored by the Fannie Mae Foundation this website offers best practices, discussions, research and more for professionals working on affordable housing and community development)

7. www.lisc.org  Local Initiatives Support Corporation (a national organization which helps resident-led, community-based development organizations transform distressed communities and neighborhoods into healthy ones by providing capital, technical expertise, training and information; website includes an extensive resource library)

8. www.nlihc.org  National Low Income Housing Coalition (an organization dedicated solely to ending America’s affordable housing crisis through public education, organizing, research, and policy advocacy)

9. www.nhlp.org  National Housing Law Project (a national housing law and advocacy center seeking to advance housing justice for the poor by providing legal assistance, advocacy advice and housing expertise to legal services and other attorneys, low-income housing advocacy groups, and others who serve the poor)

10. www.ruralhome.org  Housing Assistance Council (a nonprofit corporation helping local organizations build affordable homes in rural America since 1971)

11. www.taxcredithousing.com, Affordable Housing Resource Center/LIHTC (sponsored by Novogradac & Company LLP this website offers news and information particularly concerning the LITHC program)

12. www.tcah.org The Campaign for Affordable Housing (offers publications and clearinghouse links to publications, organizations and events to respond to community opposition to affordable housing.

13. Bipartisan Millennial Housing Commission, “Why Housing Matters,” FINAL REPORT 10 - 13 (2002) available at http://www.mhc.gov/MHCReport.pdf (last visited June 2, 2005)

14. ENCYCLOPEDIA OF HOUSING, ed. William van Vliet, Sage Publications (1998) (the most comprehensive encyclopedia of housing available)

15. HOUSING FOR ALL UNDER LAW: NEW DIRECTIONS IN HOUSING, Land Use and Planning Law Report of the ABA Advisory Commission on Housing and Urban Growth, ed. Richard P. Fishman (ABA, 1978)

16. Melanie Putnam, The Internet Guide to Affordable Housing, 7 Internet L. Researcher 3 (2002) (Westlaw only)

Technical Resources

1. 1000 Friends of Florida, Creating Inclusive Communities in Florida (2002), available at: http://www.1000fof.org/Affordable_Housing/creatinginclusivecomm.asp (last visited June 2, 2005)

2. American Planning Association, GROWING SMART LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT OF CHANGE, Stuart Meck, Gen. Ed. 2002) (The Guidebook and its accompanying User Manual are an effort to draft the next generation of model planning and zoning legislation for the U.S. to help combat urban sprawl, protect farmland, promote affordable housing, and encourage redevelopment)

3. California Department of Housing and Community Development, The Clearinghouse for Affordable Housing and Community Finance Resources (searchable database of funding programs) available at: http://www.hcd.ca.gov/clearinghouse/ (last visited June 2, 2005)

4. Center for Community Change, HOUSING TRUST FUND PROGRESS REPORT 2002
(2002) This report provides the only comprehensive description of the more than 275 existing housing trust funds in the United States.

5. Corporation for Supportive Housing, BETWEEN THE LINES: A QUESTION AND ANSWER GUIDE ON LEGAL ISSUES IN SUPPORTIVE HOUSING - NATIONAL EDITION (Prepared by the Law Offices of Goldfarb and Lipman, 2001)

6. Bennett L. Hecht, DEVELOPING AFFORDABLE HOUSING: A PRACTICAL GUIDE FOR NON PROFIT ORGANIZATIONS 2d. ed. (John Wiley & Sons, Inc. 1999)

7. Tim Iglesias, Managing Local Opposition: A New Approach to NIMBY, 12 JOURNAL OF AFFORDABLE HOUSING & COMMUNITY DEVELOPMENT LAW 78 (2002) (a practical guide for attorneys on dealing with NIMBY).

8. Barry G. Jacobs, HDR HANDBOOK OF HOUSING AND DEVELOPMENT LAW, WEST (2004) (This publication provides a concise description of federal housing, development, and mortgage finance programs, as well as important housing and development-related provisions of the Internal Revenue Code)

9. National Housing Law Project publications, especially on HUD Housing Programs (available from website www.nhlp.org)

10. Sara Pratt and Michael Allen, ADDRESSING COMMUNITY OPPOSITION TO AFFORDABLE HOUSING DEVELOPMENT: A FAIR HOUSING TOOLKIT (Housing Alliance of Pennsylvania 2004) (provides practical tips and information on confronting common NIMBY concerns and launching a successful community campaign, and is available at http://www.knowledgeplex.org/showdoc.html?id=68549 (last visited June 2, 2005) The authors offer half-day or full-day workshops on managing local opposition to housing development, as well as technical assistance consultations. For more information contact sleepratt@aol.com or (301) 891-7272.

11. Florence Wagman Roisman, Housing, Poverty, and Racial Justice: How Civil Rights Laws Can Redress the Housing Problems of Poor People, Clearinghouse Review,  May-June 2002

12. Robert G. Schwemm, HOUSING DISCRIMINATION: LAW AND LITIGATION, Thomson West (2004) (substantial coverage of fair housing issues and regularly updated)

13. Robert Wiener, ed., AFFORDABLE HOUSING (Solano Press, forthcoming Spring 2006) (title may be revised prior to publication) (overview of affordable housing development in California)

Compilations and Evaluations of Affordable Housing Strategies

1. American Planning Association, AFFORDABLE HOUSING READER (2005) (collection of over 100 articles and documents relating to affordable housing) available at http://www.planning.org/affordablereader/ (last visited June 2, 2005)

2. American Planning Association, REGIONAL APPROACHES TO AFFORDABLE HOUSING, Stuart Meck, Rebecca Retzlaff and James Schwab, eds (APA Planning Advisory Service Report/Number 513/514, 2003) This book evaluates regional approaches to affordable housing including 23 specific programs across the nation, proposes a set of best and second-best practices, and provides extensive appendices.

3. ASSOCIATION OF BAY AREA GOVERNMENTS, BLUEPRINT FOR BAY AREA HOUSING 2001 (2001) (providing suggestions, model policies, and contacts for local governments to increase affordable housing in their jurisdictions)

4. Lauren Breen, Louise Howells, Susan R. Jones, and Deborah S. Kenn, An Annotated Bibliography of Affordable Housing and Community Economic Development Law, 13 Journal of Affordable Housing and Community Economic Development Law 334 (Spring 2004) (an updated version will be published in the Spring of 2005)

5. John Emmeus Davis ed., THE AFFORDABLE CITY: TOWARD A THIRD SECTOR HOUSING POLICY (Temple University Press, 1994) (describing and promoting community-based non-market affordable housing strategies and programs)

6. Maria Foscarinis, Brad Paul, Bruce Porter, and Andrew Scherer, The Human Right to Housing: Making the Case in U.S. Advocacy, CLEARINGHOUSE REVIEW,  JULY-AUGUST 2004

7. Chester Hartman, Rachel Bratt and Michael Stone, eds., THE RIGHT TO HOUSING: FOUNDATION FOR A NEW SOCIAL AGENDA (Temple University Press, forthcoming) (a housing policy reader)

8. Katz et al., Rethinking Local Affordable Housing Strategies: Lessons from 70 Years of Policy and Practice, The Brookings Institution Center on Urban and Metropolitan Policy and the Urban Institute (2003) (Discussion Paper)

9. Bonnie L. Koneski-White, Increasing Affordable Housing and Regional Housing Opportunity in New England: A Selected Bibliography, 22 Western New England Law Review 431 (2001) (includes a section on affordable housing generally)

10. MAYORS NATIONAL HOUSING FORUM, NATIONAL HOUSING AGENDA: A SPRINGBOARD FOR FAMILIES, FOR COMMUNITIES, FOR OUR NATION (2002) (offering 60 housing policy recommendations addressing a wide array of housing needs)

11. Peter W. Salsich, Jr., Saving Our Cities: What Role Should the Federal Government Play?, 36 URB. LAW. 475 (2004)

12. Peter W. Salsich, Jr., Will the “Free Market” Solve the Affordable Housing Crisis?, Clearinghouse Review,  January-February 2002

13. The National League of Cities, AFFORDABLE HOUSING FINANCE RESOURCES: A PRIMER (resource guide to assist city and town officials in the identification of potential government and private funding resources for affordable housing programs) available at http://www2.nlc.org/nlc_org/site/files/pdf/Affordable%20Housing-final.pdf (last visited June 2, 2005) and STRENGTHENING PARTNERSHIPS FOR HOUSING OPPORTUNITIES: PRACTICAL APPROACHES TO AFFORDABLE HOUSING CHALLENGES (guidebook for identify, prioritize, and implement individualized action plans available at: http://www.nlc.org/nlc_org/site/files/reports/affordhous.pdf (last visited June 2, 2005)

Ben Barros

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March 9, 2006 in Law Reform, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Purdy on People as Property

Jedediah S. Purdy (Duke Law School) has posted People as Property: On Being a Resource and a Person in the BEPress Legal Repository.  Here's the abstract:

Property law facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood – the bases of dignity and self-respect. Human beings, who are both resources for one another and the persons whose moral importance the legal system seeks to protect. This article explores how property law has addressed this paradox in the past and how might in the future.

I analyze two bodies of nineteenth-century law where the paradox was highlighted: the legal regimes of labor discipline for slaves in the antebellum South and for free workers in the laissez-faire Lochner era. The law struggled over how to regard laborers’ bodies as resources and how to understand them as persons. I then show how these jurisprudential problems tracked contemporary debates in political and economic thought about the nature of property in human beings. I argue that property regimes always define a boundary between personhood and resource value.

I apply this analysis to two areas: voluntary peer production in digital media and the entrance of Indian women into the paid workforce. Both demonstrate how changes in how people are able to approach others as resources – specifically changes in the direction of increased reciprocity – help produce a more robust conception of personhood and a more egalitarian and attractive social life. I offer the increase in reciprocity as a normative touchstone for assessing property regimes.

Ben Barros

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March 9, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Mahoney on Kelo

Julia D. Mahoney (University of Virginia School of Law) has posted Kelo's Legacy: Eminent Domain and the Future of Property Rights in the BEPress Legal Repository.  Here's the abstract:

Judging from the furious public response, one might imagine that Kelo v. New London, which upheld the condemnation of homes for mixed-use redevelopment, represented the abdication of judicial oversight of legislative and administrative decisions to condemn property for ostensible "public use". Yet, if anything, the opposite is true. The Court's leading precedents prior to Kelo mandated near total judicial deference to condemnation decisions. By contrast, the majority opinion in Kelo implied, and the one concurring opinion -- written by a member of the majority--underscored, that the "public use" limitation constitutes a real check on exercises of government power. Increased judicial oversight could yield benefits. Even though courts may not be superior--or even equal to-- legislatures and agencies in their capacity to grapple with the complex moral and economic issues involved in eminent domain, the fact that courts may veto condemnations can serve as a powerful check on undesirable behavior.

Ben Barros

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March 9, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 7, 2006

Latest Summary of State Legislative Responses to Kelo

The National Conference of State Legislatures recently updated its list of legislative responses to Kelo.

UPDATE:  NCSL's summary of 2005 legislative activity is available here.

Ben Barros

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March 7, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Monday, March 6, 2006

Clay on Squatters, Production, and Violence

Karen Clay (Carnegie Mellon University - H. John Heinz III School of Public Policy and Management) has posted Squatters, Production, and Violence on SSRN.  Here's the abstract:

This paper uses a model and historical data from California in 1860, a time at which property rights were uncertain, to investigate the links among property rights, production, and violence. Consistent with the model, squatters had production that was 15-47 percent lower than non squatters; a 10 percent increase in the density of squatters was associated with an 8-17 percent decrease in agricultural output per acre, and, at levels above the mean, increased density of squatters was associated with higher levels of violence. The market for squatting does not appear to have been in equilibrium. This may reflect the imperfect information available to squatters, sorting based on a taste for violence, or our use of aggregate data. We then compare our results on agricultural production for California to results for other states west of the Mississippi in 1860 and in 1880. The negative effects of squatting were widespread in 1860, but by 1880 the effects had abated in many places as the number of squatters fell. The results on production and violence have implications for understanding the historical development of agriculture in the United States more broadly, since squatting on agricultural land was prevalent throughout the United States, and for understanding agriculture in the Third World, since uncertain property rights in agricultural land are still an issue today.

Ben Barros

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March 6, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)