PropertyProf Blog

Another Fun Adverse Possession Case

Bruce Ziff (U. Alberta) pointed me to this story about a great adverse possession case in London:

A homeless pensioner who has slept rough in one of London's plushest beauty spots since 1986 was celebrating Thursday after winning ownership of his plot of land, turning him into an instant millionaire.

Harry Hallowes, 71, secured ownership to a 800 square-metre plot in Hampstead Heath, after a two-year legal battle with developers who tried to evict the pensioner from the grounds of a former nursing home.

A building developer had tried unsuccessfully to evict Hallowes from his makeshift shack since March 2005 as it sought to transform the building into luxury flats.

The feisty pensioner dug his heels in and consulted lawyers who provided evidence which showed that he had been living unchallenged on the plot for 21 years, and thus could claim the land as his own.

The area around Hampstead Heath is well known as an expensive place to live, even by London's inflated property prices, and is home to many stars, celebrities and liberal professionals.

"Someone mentioned a million and someone else said two million, but I'm not impressed with figures. I just wanted a place to live," a very composed Hallowes said after hearing the news.

Ben Barros

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Ziegler on Cities, Sprawl and the Threat of Terrorism

Edward H. Ziegler (University of Denver) has posted American Cities, Suburban Sprawl, and the Threat of Terrorism on SSRN.  Here's the abstract:

This article explores Aristotle's statement about politics shaping the design and form of the built environment in the context of urban planning, suburban sprawl, and the threat of terrorism in the United States. The article suggests that sprawl may be accelerated by the threat of terrorism in the United States and discusses sustainable development issues in the context of the terrorist threat to America's urban places. The article explores how zoning and urban planning policies can make a difference in shaping the form and regional sustainability of our built environment and reduce our reliance on automobiles and foreign oil.

Ben Barros

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British Government Sale of Waterways

From the London Times online:

The Government is considering a billion pound-plus sale of the country’s canals and waterways.

British Waterways, the government-controlled body responsible for 2,200 miles of canals and rivers in the UK, is running a beauty parade of banks with a view to kick-starting a strategic review in the summer. The review will examine all options for the business, including a sale of all or parts of the portfolio, a possible stock market listing or other partnership or funding structures.

A sale could raise as much as £1 billion for the Treasury.

British Waterways is sitting on a property goldmine that includes all the towpaths and land alongside the canals. The company last valued its portfolio at more than £500 million, but that figure could more than double over the coming years as it shares the spoils of housing and office regeneration schemes on its land.

Ben Barros

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Fun Fact Pattern

Boston.com has an article on an interesting dispute involving adverse possession, unbuildable lots, and more:

HOLBROOK -- In 1908, a downtown Brockton store owner offered his customers a deal: buy a men's suit and he would throw in a tiny plot of land out in the country.

Daniel W. Baker of Besse, Baker, and Co. clothiers had purchased 40 acres of open land known as Edgewood Park in then-rural Holbrook. He divided the property into lots of about 85-by-20 feet or smaller and gave away hundreds. He kept the ones left over when the promotion ended.

This unorthodox marketing ploy has today left a tangle of claims and conflict that could take another century to unravel.

Many of the approximately 500 unbuildable lots are orphans; the town does not know who owns them, and isn't collecting some $750,000 in taxes owed on the parcels.

Moreover, a local sewer contractor who does own a few of the lots is claiming squatter's rights to the entire 40-acre parcel, setting off a confrontation with Daniel Baker's surviving heirs, and some nearby residents who say he's barred them from woods that had been accessible for decades.

"As far as I'm concerned, I own it," said Wayne D. Crosby, who has operated Tri-Town sewerage and other business operations on a portion of the property since 1976.

But Baker's surviving heirs, brothers Peter and John Blatchford, own about 136 lots, according to town records, which they would like to donate to the town. But they have been deadlocked with local officials over a $130,000 bill for back taxes.

In the meantime, the Blatchfords and Crosby have locked horns over access to the property. Crosby has installed a locked gate across one entrance to the property, fences on part of the perimeter, and posted no trespassing signs on some of the disputed land. He has also threatened to call police if anyone comes onto the property, and more pointedly barred Peter Blatchford after he tried to go on the land.

"There's a squatter on the land, and he's locked everyone out," said Peter Blatchford. "I don't want to pay taxes on land I have no access to."

The intensity of the battle has some Holbrook officials leery.

"It almost reminds me of the Hatfields and the McCoys," said Selectman Richard McGaughey.

There's a lot at stake. Land values in this small community have shot up as home buyers have reached deeper into the suburbs to find available and more affordable housing stock. A typical house lot in town might sell for around $250,000, said Kimberly Allard-Moccia , former president of the Plymouth and South Shore Association of Realtors. So 40 acres of mostly undeveloped land is probably worth millions to whomever ends up controlling it.

Squatter's rights, or in legal terms "adverse possession," stem from English common law and allow an individual under certain circumstances to obtain ownership of property without a title after occupying it for a specified number of years. In Massachusetts, the requirement to claim squatter's rights is 20 years.

Ben Barros

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Data Mining, Pharmaceutical Style

Tuesday’s Washington Post had an interesting article discussing a recent decision by U.S. District Judge Paul Barbadoro involving a New Hampshire statute designed to limit the ability of the pharmaceutical industry to obtain information regarding the actions of prescribing physicians. According to the article, drugmakers contract with data-mining companies to obtain information from retail pharmacies allowing the pharmaceutical companies to determine which physicians are issuing prescriptions for their products and, perhaps even more importantly, for competing products. Although the identities of individual patients are protected, the identities of the individual prescribing physicians are revealed to the drug manufacturers, who then use this information to more precisely target their marketing efforts at those individual physicians. Some doctors object to the use of this information on privacy grounds, while others charge that “using such detailed data for drug marketing serves mainly to influence physicians to prescribe more expensive medicines, not necessarily to provide the best treatment.” Judge Barbadoro held the statute to be an unlawful restriction on constitutionally protected commercial speech.

 A quick computer search reveals the case to be IMS Health Inc. v. Ayotte, ___ F. Supp. 2d ___, 2007 WL 1244077 (D. N.H. April 30, 2007). The court described the statute as “expressly prohibit[ing] the transmission or use of both patient-identifiable data and prescriber-identifiable data for certain commercial uses.” Rejecting the state’s arguments that the statute was a permissible restriction on commercial speech that was “carefully crafted to directly serve the State’s substantial interests in protecting prescriber privacy, promoting public health, and controlling health care costs,” the court held that the statute imposed an unlawful restriction on constitutionally protected commercial speech.

This would be a straight constitutional law case of little or no interest to property profs were it not for the court’s brief mention of testimony by a government official that “commercial use of this information violates prescribers’ ‘trade secrets.’” The defendant State official waived this argument, however, so the question of whether such data are (or could be) intellectual property protected from public disclosure as trade secret information remains undecided.

It is essential to the data-miners’ business plan that the information they gather and transmit is the property of the individual pharmacy and that the pharmacies are free to sell this information to the data-miners and, ultimately, to the drugmakers. Even if the argument that this information is instead the intellectual property of the prescribing physicians may not have been tenable under the current state of New Hampshire property law, a matter not decided in IMS Health, it is interesting to speculate about the effect of a state (or perhaps federal) statute declaring (with prospective effect, to avoid Takings problems) that henceforth ownership of information regarding prescriptions filled within the relevant jurisdiction would rest with the prescribing doctor, who would be free to reveal or withhold it as he or she saw fit. Would such a statute avoid the Free Speech issue on which New Hampshire’s statute foundered without running afoul of some other constitutional hazard?

Carl Christensen
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Rankings of Economics Journals: Implications for Law Reviews?

As dedicated propertyprof readers know, we talk about rankings of law journals every now and then.  Thanks to Danny Sokol's generosity I have two recent papers to bring to your attention on rankings. 

"Economic Departments and Their Contributions to the Elite Economic Journals".  The abstract reads:

Given the prestige enjoyed by several economic departments, there is a natural curiosity regarding their contributions to the economic literature. This paper analyzes the appearance of all academic institutions worldwide in the eight leading economic journals, the "Blue Ribbon Eight," from 1991 to 2005. We cite those institutions who appear the most, and analyze the composition of appearances across all eight journals to assess their degree of diversity. While it is tempting to use these measures as a ranking of institutions, the analysis is meant to be purely an historical appreciation of the contributions of these admirable institutions.

Paul Caron and others have already posted on Andrew Oswald's An Examination of the Reliability of Prestigious Scholarly Journals: Evidence and Implications for Decision-Makers.  His abstract reads:

In universities all over the world, hiring and promotion committees regularly hear the argument: this is important work because it is about to appear in prestigious journal X. Moreover, those who allocate levels of research funding, such as in the multi-billion pound Research Assessment Exercise in UK universities, often come under pressure to assess research quality in a mechanical way by using journal prestige ratings. The results in this paper suggest that such tendencies are dangerous. It uses total citations over a quarter of a century as the criterion. The paper finds that it is far better to publish the best article in an issue of a medium-quality journal like the Oxford Bulletin of Economics and Statistics than to publish the worst article (or often the worst 4 articles) in an issue of a top journal like the American Economic Review. Implications are discussed.

This raises some interesting possibilities for dissection of law reviews.  And, in fact, an r.a. and I are running some numbers on this right now.  I hope to have some more well-considered thoughts on this shortly.  The quick preview is this: what seems to separate the major journals (like Harvard and Columbia) are the huge citation winners they publish.  The best (in terms of citations) of the even some of the law journals in the 30s do better than the bottom of the elite.

Over at co-op, Dave Hoffman has posted on How Well Can Publication of an Article in a Top Accounting Journal Be Used as a Proxy for its Contribution?

Alfred Brophy
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Davidson on Cooperative Localism

Nestor M. Davidson (University of Colorado), our occasional co-blogger here on Propertyprof, has posted Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty on SSRN.  Here's the abstract:

Direct relations between the federal government and local governments - what this article calls “cooperative localism” - play a significant and underappreciated role in areas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social services, immigration, and environmental protection. Despite the ubiquity of this practice, a jurisprudential clash is looming that threatens this important facet of intergovernmental relations. Historically, courts have allowed local governments to invoke federal authority as a source of local autonomy, despite the prevailing view of local governments as powerless instrumentalities of the state. The Supreme Court is increasingly suggesting, however, that state control over local governments is a fundamental aspect of state sovereignty worthy of triggering judicial limits on federal power. When this confrontation comes to a head, limiting federal authority to empower local governments would be a mistake. This article instead proposes a new framework for conceptualizing federal empowerment of local governments that is not only consistent with the Court's contemporary view of federal structure, but in fact advances the goals the Court is seeking to achieve. The core concerns animating the Court's current move to devolve and decentralize power are forcefully served by enhancing the autonomy of local governments in the constitutional structure. In short, the very values of federalism on which the Court has relied to enhance state sovereignty provide a compelling localist grounding for the particular exercise of national power represented by cooperative localism.

Ben Barros

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Congress for New Urbanism conference

I just went to the Congress for New Urbanism conference in Philadelphia, where I learned more about various smart growth related issues.  Rather than copy and paste everything I have to say I about it, I refer you to:

The CNU conference blog for everything I have to say about the conference, or

my personal blog for highlights.

I covered issues relating to comprehensive plans, land use and expressways, urban growth and decline, street design, and a bunch of other stuff.

Michael Lewyn, Florida Coastal

More on the 70% Bar Pass Proposal

Last week, Al had a post on an ABA proposal regarding bar passage rates that referenced a letter from Gary Rosin in opposition to the proposal.  Brady Coleman, one of Gary's colleagues at South Texas, has sent along a letter disagreeing with Gary's position and arguing in favor of the ABA proposal.  I disagree with some of Brady's points, but his letter, which is reproduced in its entirety below the fold, raises some arguments that should be considered by anyone interested in this issue.

Ben Barros

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Dan Freehling, Deputy Consultant
Section of Legal Education and Admission to the Bar
American Bar Association
321 N. Clark St.
Chicago, IL 60610

May 19, 2007

Dear Mr. Freehling,

RE: ABA Accreditation Interpretation 301.6

We all know that bar passage rates have gone down nationally by a significant percentage in recent years.    What to do?  This large reduction in national bar passage rates represents a significant amount of wasted time and money and student humiliation.   The extra unqualified admitted students may bring additional funding to financially strapped law schools, whose opinions on the new ABA interpretation might be treated with some caution.   By firming up the 70 percent rule, the ABA is on the right track.    First, let me state my assumptions:

1. "Cut" scores are set by the state board of bar examiners. Most often this board is an agency of the highest state court in the jurisdiction, but occasionally the board is connected more closely to the state's bar association.   

2. The quality of entering law students (and hence their predicted bar passage rates) are of course set by individual schools (and annually varying demographic and unemployment, etc. elements).

Then, the larger question becomes: who do we want to entrust bar passage rates with, 1) individual law schools through their admission policies, or 2) bar examiners (who have the same flexibility as law schools to lower or raise standards by simply adjusting their cut scores down or up as desired).

The “blunt” 70 percent argument is a red herring; it gives the impression of a hard line where flexibility is actually present; it is indeed "blunt" in appearance but the ability of states to adjust cut scores makes it anything but blunt.  Indeed, a fixed number avoids some state-based algorithm under changing state conditions which would create a nightmare of complexity.

Anyway, the ABA has wisely with the new "70 percent" proposal apparently compared the relative objectivity and motivations of these two respective institutions, law schools and bar examiners:

1) Individual law schools are motivated to, inter alia:

(a) Keep higher bar passage rates for reasons including maximizing the number of applications, U.S. News rankings, prestige, alumni giving, and so on.

But contrarily motivated by:

(b) The willingness to accept lower bar passage rates for often overwhelming and pre-existing financial obligations (more students = more funding).

There is no easy way to determine how these two contradictory motivations play out in any given (ethical) law school, (and other factors are relevant) but my experience is that often short-sighted but powerful institutional budgetary forces may give (b) (above) more sway in many schools, particularly lower-ranked schools with smaller endowments.

Compare the motivations of the other set of institutions, state bar examiners:

2) Bar examiners we might imagine are motivated to 'adjust' cut scores (and therefore passage rates) by similarly contradictory concerns:

(a) a monopolistic desire on the part of existing influential practitioners to minimize the number of lawyers in their jurisdiction, by increasing cut scores, thereby maximizing their own incomes; the effect of this factor is obviously related to the ability of practitioners to influence 'cut scores' (as opposed to, say, the state judiciary, directly or indirectly).   My understanding is that the judiciary can in most states influence 'cut scores' rather significantly, because of its power over bar examiners.    Litigation can be (and has) been the ultimate result.  Another motivation for bar examiners is the need for a minimal level of competency by legal professionals (although this is likely overrated, as a fair percentage of legal practitioners engage in rather routine clerical work).

But contrarily motivated by:

(b) The ethical concern to act in opposition to the need of legal educators to accept unqualified students for financial reasons when statistics reveal the odds are that they will spend three exhausting and expensive years without a law license, but typically burdened with large debt.

In conclusion: state bar examiners, regulated by the non – financially motivated judiciary, should be preferred to create the most appropriate number of lawyers in a given state than either that of budgetary-influenced law schools (or practitioners).

An often stated rationale for keeping the bar passage rate more flexible is the need to keep minorities in the profession.   Indeed, this country needs a percentage of lawyers roughly proportionate to the percentage of each racial or ethnic group in the population (for various reasons).    But the Orwellian argument against a firmer 70 percent rule is ‘diversity,’ and is based on the need to achieve this by sustaining a system of ‘historically’ black law schools (supposedly to be eliminated by the 70 percent rule).   But, at least at the law school level, these schools do precisely the opposite: minimizing law school racial diversity at nearby institutions in those regions where historically black law schools exist (not to mention at the historical black law schools themselves).     Segregation is exaggerated, not reduced.  A gradual attainment of the 70 percent requirement would force law schools to become more diverse, not less, assuming racial disparities in bar passage continue, and assuming wise law school administrators see the advantages of an ethnic and racial balance of law student representation.

Almost the entire world (except the USA) gives law degrees at the undergraduate level.  Little is wasted even in countries with very low passage rates (Japan, Korea), because an additional three years of education has not been required.   Folks with law degrees just go on to work as non lawyers, often at high prestige jobs, with their law B.A.'s.

But because America requires such a massive investment of money and time into obtaining this professional degree, we owe it to our students to keep a stricter minimum bar passage rate. 

It should be clear by balancing the two sets of contradictory impulses by the two institutions above which is the better positioned to establish such minimums, as the ABA has recognized, and will hopefully implement.   

In years ahead, I predict that the proposed interpretation will, if enacted: (1) require lower ranked schools to ‘shrink’ so as to maintain the needed bar passage rate and student quality; and (2) gradually increase the diversity of law schools as institutions with sub 70 averages are forced to integrate more successfully.

Sincerely,

Brady Coleman
Associate Professor
South Texas College of Law
bcoleman@stcl.edu