Saturday, January 20, 2007

Capital Looking for Property Visitor

The Capital University Law School (Columbus, Ohio) is interested in hiring a Visitor to teach Property (3 credits in the fall and 2 in the spring) plus one other course each semester (subjects are negotiable) during the 2007-2008 academic term.   Salary depends on experience.  Interested persons should contact Professor Mark Brown at

Ben Barros

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January 20, 2007 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Millon on the Single Constituency Argument in Economic Analysis of Business Law

Hersheysbar David Millon's important article, The Single Constituency Argument in the Economic Analysis of Business Law, has just been posted on ssrn.  It is forthcoming in Research in Law and Economics.  Here is his abstract: 

The essay points out an interesting parallel in law-and-economics business law scholarship. Working largely independently of each other, economically oriented scholars working in different areas have argued that the law should focus on the interests of a single constituency - shareholders in corporate law, creditors in banckrupcy law, and consumers in antitrust law. Economic analysts thus have rejected arguments advanced by progressive scholars working in each of these areas that the law should instead concern itself with the full range of constituencies affected by business activity. The law-and-economics single constituency claim rests in part on skepticism about judicial competence but the underlying objection is to the use of law for redistributive purposes. The primary value is efficiency, defined in terms of market-generated outcomes. In this essay, I question this political commitment, suggesting that it implies a strong tendency toward maintenance of the existing distribution of wealth. Even more importantly, the single constituency claim may actually have redistributive implications. In each of these areas of business law, however, it is a regressive program that favors owners of capital against those who are generally less well of, such as workers and small business owners.

The conflict that Millon identifies over this meta-issue between law and economics and more traditional analysis in antitrust, corporate law, and bankruptcy, has implications for property scholarship as well.  Do we focus exclusively on the interests of the person with record title to the property or to others as well?

I'll be posting in the next week or two on the Hershey Trust case, which affirmed a preliminary injunction against sale of the Hershey Trust's controlling interest in Hershey Chocolate (hence the illustration).  The injunction was granted in part it seems because of the community's interest in the company.  Not quite sure of the legal basis for this; the community (which was, after all named Hershey) seemed to be an implied beneficiary of Milton Hershey's trust.  Perhaps the makings of talk of Quaker jurisprudence, which may be related to aloha jurisprudence....

Alfred L. Brophy

January 20, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, January 19, 2007

Banished: American Ethnic Cleansings

Banishedimage On January 22 the documentary Banished: American Ethnic Cleansings, which is about Jim Crow era violence and the efforts to revisit those histories today, will premiere at the Sundance Festival.  It focuses on what people called "negro drives" by communities in Missouri, Arkansas, and Georgia.  The episodes began with allegations that black men attacked white women.  Then followed episodes of violence and black people were driven from their home communities.  To this day the communities continue segregated.

Marco Williams, who has produced such acclaimed documentaries as Two Towns of Jasper, is the director and co-producer of Banished (along with Mia Harris, who's co-producer).  Obviously I haven't seen it yet, although I have on good authority that it's excellent and very much look forward to seeing it soon.

Here's an interview with Marco Williams about Banished.  I hope you'll check out Banished's website,  Look in particular for the trailers.  And if you're looking for a book to read along with it, I highly recommend James Loewen's Sundown Towns.

Alfred L. Brophy

January 19, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 18, 2007

Seinfeld Loses Brokerage Suit

Via the AP:

A Manhattan judge has ruled the 52-year-old comedian owes about that much as a commission to the broker who helped him find a town house on the Upper West Side that he and wife Jessica bought for $3.95 million in February 2005.

Seinfeld had argued that the broker, Tamara Cohen, didn't deserve the commission because she failed to show the West 82nd Street brownstone on the Jewish Sabbath, the day the Seinfelds wanted to see it.

The Seinfelds looked at the house and made a deal to buy it without Cohen after they were unable to reach her and she failed to return their calls.

Cohen said she had told the Seinfelds she observed the Jewish Sabbath and couldn't work between Friday evening and sundown Saturday. But the Seinfelds told the court they didn't know why Cohen didn't return their calls.

State Supreme Court Justice Rolando Accosta said "the evidence clearly indicates she served as the Seinfelds' real estate broker" and that she had shown them a number of residences before finding the town house. . . .

The judge ordered a trial to determine how much Cohen should get. At 5 percent, the total fee would be $197,500 and Seinfeld would owe Cohen $98,750; at 6 percent, the fee would be $237,000 and Cohen's cut would be $118,500.

Hat tip:  FB.

Ben Barros

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January 18, 2007 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 17, 2007

Europeans make the same mistake as Americans

A few months ago, I discussed Robert Bruegmann's book on sprawl in a post or two (a more extensive review is coming out in the Harvard Blackletter Journal; however, a draft is available on my Bepress site. )  One of his factual arguments was that sprawl is inevitable because it happens in Europe as well, despite European nations' anti-sprawl policies.

A recent New York Times article debunks this argument, by showing that at least some European nations have adopted the same kind of pro-sprawl policies that American governments have adopted.  The article points out that in Europe:

6,200 miles of motorways were built from 1990 to 2003 and, with the European Union’s enlargement, 7,500 more are planned. Government enthusiasm for spending on public transportation, which is costly and takes years to build, generally lags far behind. 

And a result, more people move to places served by roads but not public transit, thus increasing car use, etc.

Has sprawl reduced congestion or pollution?  Apparently not; the article states:

The 23 percent growth in vehicular emissions in Europe since 1990 has “offset” the effect of cleaner factories, according to a recent report by the European Environment Agency. The growth has occurred despite the invention of far more environmentally friendly fuels and cars.

Mike Lewyn

January 17, 2007 | Permalink | Comments (0) | TrackBack (0)

Individualized webpages

Bepress now allows faculty to create individualized webpages where they can post their articles (and even smaller documents such as op-eds and speeches).  For example, my webpage is here.

Mike Lewyn

January 17, 2007 | Permalink | Comments (0) | TrackBack (0)

Class Certified, Summary Judgment to Plaintiffs in Option ARM Case

I've posted before about the potential for sales-practices litigation arising out of the sale of Option-ARMs and other specialized mortgages.  Yesterday, a federal judge issued an order in Andrews v. Chevy Chase Bank certifying a class and granting plaintiffs summary judgment on their Truth in Lending Act disclosure claims.  The judge's order is here; the disclosure statement is here.  The judge also ruled that the plaintiffs were entitled to rescission.  I wouldn't be surprised to see an appeal, but the District Court's opinion seems to be well reasoned.  If duplicated in other cases, the District Court's general approach to the Truth in Lending Act -- the TLA is a remedial statute, and disclosures have to be crystal clear to protect lenders -- could spell trouble for a lot of lenders.  As I observed in my first post on the subject (follow the link above), mediocre disclosure is not going to offer much protection in the consumer context.

I've posted plaintiffs' counsel's press release after the jump.

Ben Barros

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Continue reading

January 17, 2007 in Real Estate Transactions, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 16, 2007

Roark on Property Myths

Marc Roark, whose work we've mentioned previously, has a great post on property myths on his new blog, Livres Loi.  This is the first in a series.  Check it out!

Ben Barros

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January 16, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Supreme Court Denies Cert in Didden

Per Ilya Somin, I understand that the Supreme Court denied cert in the Didden case that I've discussed previously.  Cert is always a low percentage play, but I'm disappointed that the Court didn't take the case.  On the other hand, maybe this is an indication that Chief Justice Roberts is taking my request that the Court stay out of the takings game for a while seriously.

Ben Barros

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January 16, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Open Book v. Closed Book

When I first started teaching two years ago, I was a big fan of open book exams -- real life is open book, so why shouldn't exams be open book?  This year, I tried something different in my Property I class.  I made the exam closed book, and I gave four graded quizzes throughout the semester.  All of the quizzes were closed book; some were multiple choice and some were short-answer.  The result was a dramatic improvement in the overall performance (measured by quality of answer) on my final.  I'm not sure how much of the improvement to attribute to the quizzes and how much to the closed-book nature of the exam.  I suspect that both played a part.  Interestingly enough, the student feedback on the quizzes was very positive -- my students appreciated the early feedback, and the preparation for the quizzes put them in good shape to prepare for the final.  From now on, I'm going to use the same format -- graded quizzes, closed-book exam -- for all of my large classes, including Business Organizations.  The quizzes, of course, were some extra work, but the results were worth it.

Ben Barros

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January 16, 2007 in Teaching | Permalink | Comments (1) | TrackBack (0)

Monday, January 15, 2007

Photograph In Memory of Martin Luther King Day

00199r Thought that propertyprofs might enjoy this photograph, from the Library of Congress' American Memory website.  The sign reads: "Colored Waiting Room" and "Private Property No Trespassing."  As dedicated propertyprof readers will recall, I particularly enjoy collecting examples of "Private Property" and "No Trespassing Signs."  Dedicated propertyprof readers will also recall that we often use Library of Congress photographs in illustrating our posts--because they're awesome and because they're in the public domain, as well.

In this case, we located the photograph through Seattle University Law Library's terrific website on Brown.

Alfred L. Brophy
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January 15, 2007 | Permalink | Comments (0) | TrackBack (0)

Bezdek on Equity in Urban Revitalization

Barbara L. Bezdek (University of Maryland School of Law) has posted To Attain 'The Just Rewards of so Much Struggle': Local-Resident Equity Participation in Urban Revitalization on SSRN.  Here's the abstract:

Annually, Americans pour out their sympathy for people displaced from their communities by natural disasters such as fires, floods, and hurricanes. We respond, knowing the anchor that the concept of “home” supplies to body, soul, and family; we intuit the toll exacted by the loss of familiar walls, private homes and community-shared places. Yet, redevelopment policy and practice in the U.S. today relies upon the massive relocation of poor people and the destruction of poor people's neighborhoods with only token recognition of the costs and burdens imposed on the displaced. Although the devastation of community, family, and lives is just as complete when the disaster is the government-sanctioned wrecking ball, comparable sympathy is not commonplace for urban redevelopment refugees.

Urban land is being reclaimed from low-wealth residents by local governments through their active participation in the urban real estate market, through public/private partnerships rather than the exercise of constitutional police powers, with the purpose of engineering new urban territories and repopulating them with the wealthier classes. Although this social engineering is sometimes characterized, or justified, as a modern version of the pioneering that peopled the American plains with striving Europeans, the public policy to so restructure the territories of the central city wrongly allocates the costs of revitalization on the current residents, and distributes the benefits to others. This is the antithesis of governance for the general welfare.

The Article argues that public/private redevelopment of urban community space must be controlled by and directly benefit the affected city residents so that the displaced receive meaningful equity shares in the value-added redevelopment. I propose to recognize the meaningful claims of residents displaced by government-aided changes in urban land use patterns, through the allocation of equity stakes in the wealth generated by such city-supported urban redevelopment. This approach would update resident participation strategies in urban land use planning and regulation extant now for nearly sixty years, by recognizing with market value the legitimate interests of residents in the space they co-inhabit. This view is justified on three grounds: (1) the legal framework offered by property law recognizes numerous rights of persons residing in the path of municipality-assisted redevelopment, which currently are destroyed without acknowledgement or compensation, in the exercise of urban redevelopment powers; (2) important community interests of persons and communities are similarly destroyed, although they have yet to be recognized as interests in property, they could can and should be; and (3) equitable arguments of varying political stripes support claims for both recognition of property rights and development of appropriate remedies for the harms redevelopers inflict on present residents. Part IV proposes the creation of community equity shareholding to achieve community ownership, participation in decision-making, and material benefit from public/private urban redevelopment projects that displace long-term residents.

Ben Barros

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January 15, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Bernard Herman: Town House

Herman_townhouse Been enjoying Bernard Herman's Town House: Architectual and Material Life in the Early American City, 1780-1830.  Here's the description from the UNC Press site:

In this abundantly illustrated volume, Bernard Herman provides a history of urban dwellings and the people who built and lived in them in early America. In the eighteenth century, cities were constant objects of idealization, often viewed as the outward manifestations of an organized, civil society. As the physical objects that composed the largest portion of urban settings, town houses contained and signified different aspects of city life, argues Herman.

Taking a material culture approach, Herman examines urban domestic buildings from Charleston, South Carolina, to Portsmouth, New Hampshire, as well as those in English cities and towns, to better understand why people built the houses they did and how their homes informed everyday city life. Working with buildings and documentary sources as diverse as court cases and recipes, Herman interprets town houses as lived experience. Chapters consider an array of domestic spaces, including the merchant family's house, the servant's quarter, and the widow's dower. Herman demonstrates that city houses served as sites of power as well as complex and often conflicted artifacts mapping the everyday negotiations of social identity and the display of sociability.

You'll love it.  Propertyprofs may recall Herman's delightful 1992 book The Stolen House.  I read it shortly after I started teaching in 1994 and highly recommend it as a combination of legal history and architecture.  I'll talk about it sometime; that book deserves an entry all its own.

Alfred L. Brophy

January 15, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, January 14, 2007

West Blocton, Alabama Cemetery

Westblocton Dedicated propertyprof readers will recall that I sing the praises of my hometown newspaper, the Tuscaloosa News, every now and then.  We're often treated to terrific human interest stories on cemeteries.  (Like this one, by my friend Cathy Lee, last summer. [Free registration required]) 

So what to my wondering eyes did appear in this morning's Tuscaloosa News?  This awesome story by Ben Windham on the West Blocton Cemetery.  Here's a sample:

Hardly anyone was on Main Street in West Blocton, with its rows of empty storefronts, when I arrived there. Up the hill, doors on Rosa Parks Lane were shut tight against the chill. I was headed for the nearby Italian Catholic Cemetery, one of the state’s hidden treasures. It served Bibb County’s immigrant community in the days before its mines and coke ovens closed.

The Italian community was a world apart. Some of the laborers that mine bosses imported from Italy worked in an enclosure that locals called a “dog pen" until they paid off the cost of their passage.  The homes, stores and restaurants of their fellow countrymen were centered in a hilly area called “Little Italy" . . . .

So strong was the code of apartheid at the dawn of the 20th century that an Italian child was refused burial in the community’s traditional white cemetery, Mt. Carmel.  That led the bishop of the Catholic Diocese of Alabama to consecrate the Italian Cemetery in 1901. . . .

But until recently, when an all-weather road was constructed, the Italian Catholic Cemetery remained difficult to access. Deep ruts and potholes made the road up the ridge treacherous.  Still, a visit there always rewarded the effort.

Most of the grave markers are written in Italian. Some retain the old-county custom of featuring a small oval portrait of the deceased. A few reflect the hardscrabble lives -- and deaths -- of the immigrants. “Victim of the mine," one stone reads. “Killed in Klondike Mine July 20, 1906," says another.

There's a lot more to the story.  I sure enjoy the Tuscaloosa News.

The image of West Blocton (one of the few I could find in the public domain) is from our friends at the Library of Congress.

Alfed L. Brophy

January 14, 2007 | Permalink | Comments (0) | TrackBack (0)

James Brown's Will

This has all the makings of a great class discussion.  So Strom Thurmond, Jr. was James Brown's lawyer?!  And the will (I can't tell from the story whether it was executed before or after the five year old child's birth) doesn't mention either Tomi Rae Hynie Brown or the five year old child.

Al Brophy

January 14, 2007 | Permalink | Comments (0) | TrackBack (0)