PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, October 5, 2007

It Gets Worse Every Year

Every time I teach property, the subject of self-help repossession comes up at some point, usually in the context of a landlord's attempt to lock-out a defaulting tenant.  I inevitably want to reference the film Repo Man.  Two years ago, I got a lot of blank looks when I mentioned the '80s classic, so I now know to ask in advance how many people have seen the movie.  Last year, it was about ten out of sixty people.  This year, it was two -- count 'em, two, out of sixty.  Arrrrgh.

Ben Barros

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October 5, 2007 in Teaching | Permalink | Comments (3) | TrackBack (0)

Elorza on Gentrification

Jorge Elorza (Roger Williams) has posted Absentee Landlords, Rent Control, and Healthy Gentrification: A Policy Proposal to De-Concentrate the Poor in Urban America on SSRN. Here's the abstract:

Empirical data overwhelmingly suggests that the presence of middle- and working-class homeowners is beneficial for inner city communities. Yet, absentee landlords have a systematic financial advantage over resident landlords when it comes to purchasing homes in blighted neighborhoods. This advantage has disastrous effects for inner-cities as the communities with the greatest need for the stabilizing presence of middle- and working-class homeowners are the ones least likely to attract them. The lack of in-moving homeowners and the resulting increase in poverty cause declining neighborhoods to fall deeper into downward spirals.

In this Article, I propose a rent control plan designed to attract middle-and working- class homeowners to blighted neighborhoods, and I argue that many positive outcomes will result. By designing this plan, I hope to breathe new life into the rent control debate by challenging the conventional wisdom that rent control has only one legitimate purpose, reducing tenants' rents, and by calling attention to the externalities caused by the absentee landlord industry. Second, I provide a legal and economic model for inner cities to de-concentrate poverty and to better integrate the poor into mainstream society. Third, I develop a model for healthy gentrification whereby vicious cycles of poverty are transformed into virtuous cycles of stability.

Ben Barros

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October 5, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Burkhart on Liability for Precondemnation Entries

Ann M. Burkhart (University of Minnesota) has posted Takings and Trespass: Trespass Liability for Precondemnation Entries on SSRN.  Here's the abstract:

When the government, a utility company, or another entity with the power of eminent domain enters land before acquiring it, the courts are extremely divided about whether the landowner can sue for trespass or only for inverse condemnation. A court's decision on this issue has tremendous practical implications. For example, it substantially affects the remedies that are available to the landowner, including its right to recover the property. The court's decision also has significant public policy implications because it involves the balance between government sovereignty over land and protection of private property rights.

Ben Barros

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October 5, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 3, 2007

Contraband Historical Society and Grave Preservation in Hampton, Virginia

Our friends at the Contraband Historical Society are working to find, mark, and preserve a cemetery--and perhaps more--nearFort_monroe_aerial Fort Monroe, at Hampton Virginia.  This from Phil Adderley of the Society:

Fort Monroe, at Old Point Comfort, Hampton Virginia, is at risk of being developed.  The Contraband Historical Society has been, working for many years, asking the City and State Governments to provide leadership with financial support for our history to be made visible to the community.

Now that the Army is leaving in 2011, Hampton wants to develop the land for housing revenues. What most people, including African Americans, do not know is that Old Point Comfort is where the first ships landed before going to Jamestown. It is also where Captain John Smith sat down with the Indians. More over, it is where former slaves (James Townsend, Sheppard Mallory and Frank Baker) were freed by Gen. Benjamin Butler in May, 1861 over 1.5 years prior to Lincoln's Emancipation proclamation (over 10,000 slaves at the Fort at one time). This event is the most significant event for America as we know it today (the Union of States) because it caused the Union Army to confiscate slaves (Confiscation Act 1861) everywhere they went and used the slaves as laborers to support the war effort. Without this support the Union would not have won the Civil War; thus the beginning of the end of Slavery. As said by Professor Robert F. Engs -University of Pennsylvania, who wrote the book " Freedom's First Generation" {which recounts the achievements of the contrabands as the earliest enterprenuers and business owners in Hampton Va. from 1861 thru 1900} after the Civil War.

The Army has been over Fort Monroe for over 146 years and has not identified the burial grounds of former slaves nor have erected any monuments to our their achievements.

We the Contraband Society see the need for perpetual education of our community and the Nation to this history. A National Park is what America requires for preserving it's treasures and would thus preserve African American Heritage. However, Hampton and the Virginia Governor is continuing with business as usual ideas of development, as the first option for a re-use plan to submit to the Army. The coordinating group, FMFADA, has not considered the National Park option, nor the prospect of this history as an American untold story. Fort Monroe is like the African American's 'Ellis Island'{'Statue of Liberty'} since we as African Americans do not have a Monument from Slavery which speaks to our Ancestor's achievements (as slaves) in a good light. Something which we can and needs celebrating. Of note most African Americans celebrate 'Juneteenth' which is a Texas observance that signaled the end of Slavery but the 'Contraband story' is the beginning of the end of slavery and ultimately effected the end.

Please respond to our request to help get the word out by asking Congress to honor our Ancestors with a national monument at Fort Monroe and a National park for it's Preservation.

Issues of historical preservation--particularly when they involve graves--are near and dear to my heart.  It will be most interesting to see where this all goes.

The public domain aerial shot of Fort Monroe is from our friends at wikipedia (who got it from the federal government in turn).

Alfred L. Brophy
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October 3, 2007 in Land Use | Permalink | Comments (0) | TrackBack (0)

Hillary Clinton's Senior Thesis

Hillaryclintonthesis_1 OK--entirely off-topic for propertyprof.  However, on-topic for my research.  We were talking in my seminar the other day about the engagement of people in the nineteenth century with legal ideas--how newspapers published excerpts from judicial opinions, for instance.  One of my students suggested that he thought the internet was, perhaps, bringing back some of that engagement (or at least the internet allows members of the public greater access to legal knowledge).  Then he mentioned Hillary Clinton's senior thesis as an example of literature that people are now reading on the internet.

I hadn't heard this, so naturally I was excited, in part because it opens up for discussion the question whether what people write (or hear) when they are in college can be used as a gauge of their later beliefs.  This is a topic I have great interest in for the nineteenth century.  A couple years ago I spent an some time mining college literary addresses at the University of Alabama as a gauge of ideas in circulation around this place in the antebellum era.  It resulted in an essay, "The Law of the Descent of the Mind: Law, History, and Civilization in Antebellum Literary Addresses."  Pretty fun project, though the confidence intervals for drawing inferences may be broad (and hence perhaps you can't tell a whole lot).  I'm still working on a much larger project on literary addresses in antebellum northern colleges and a book on antebellum moral philosophy and jurisprudence, based in significant part on readings of college texts

Moreover, one of my favorite recent works of history, Peter Carmichael's The Last Generation draws heavily upon student writing to understand the hopes and ideas of antebellum Virginians on the eve of Civil War.  Brilliant book--it's a great read.  Here's a link to my review of it, "God and Man at the University of Virginia," which appeared recently in Reviews in American History.

And we've spoken here already about the inferences one might draw about Justice Alito from his student note in the Yale Law Journal.  (Not many according to the Justice himself, though.)

At any rate, through the magic of the internet we now have access to Senator Clinton's senior thesis, "There is only the Fight: An Analysis of the Alinsky Model."  Draw your own inferences, though I suspect you'll find it tough to extrapolate much from this limited set of data.

Alfred L. Brophy
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October 3, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 2, 2007

Best Property Story Ever?

Eduardo Penalver pointed me to this great story about ownership of a human leg:

The story of Wood's leg goes back to 2004 when it was shattered in a plane crash that killed his father and injured two other family members. Doctors tried to save the leg for eight months, but had to amputate. Wood told them that when he died, he wanted to be buried a whole man and asked if they could ship the leg to him.

They obliged. The leg -- foot, ankle and most of the calf -- spent time in Wood's freezer until his electricity was cut off. Wood then hung it on a fence post in his front yard to dry.

He was later evicted from his home and spent time living in his van. His mom said she'd pay to store his belongings for a couple of months, but after that, the $42 payments were his responsibility.

The leg, carefully wrapped in paper and stored inside the smoker, went into storage. But Wood wasn't making the payments, and last Tuesday the owner of the storage facility included the smoker in a sale of items from people who got behind on their rent.

Whisnant bought the smoker, opened it and "thought it might have been part of a missing person or someone's ex-wife." He contacted police.

Now that Whisnant knows the leg isn't evidence of a murder, he feels it's his property.

He says he called every lawyer in the Catawba County yellow pages looking for someone with experience in "cadaver law."

The leg has brought both men some fame. Both have done interviews. Wood said he became a celebrity at a charity golf tournament that benefited amputees. Whisnant put a sign on the empty smoker charging for a look inside: adults $3, children $1.

He figures there could be more opportunities if he had the leg in hand. He knows there's interest; he's Googled the phrase "man finds leg in smoker" and got close to 2 million hits.

Wood said he was livid when he got the request from Whisnant.

"He's making a freak show out of it," Wood said. "He wants to go on 'The Tonight Show' and he wants to sell it to the National Enquirer and call Ripley's Believe It Or Not. He wants to put money in his pocket with this thing."

After meeting with a lawyer this weekend, Whisnant decided his best move was to convince Wood to share custody.

"It's a strange incident and Halloween's just around the corner," he said. "The price will be going up if I get the leg."

Ben Barros

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October 2, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Property Panels at Legal History Conference

Later this month, I will be presenting a paper entitled "The Writ of Quare Impedit and the Development of English Property Law, 1180-1250," at the American Society for Legal History annual meeting in Tempe, Arizona.  In addition to my panel, "Legal Issues in Feudal Society," there are a number of other panels relating to property law, including "The Invention of Modern Anglo-American Intellectual Property Law" and "The Role of Land in National-Local Relations:  A Comparative Perspective."  The ASLH meeting is always an excellent forum to present work on property law (or any other subject) with a historical focus, although people tend to submit complete panels rather than individual papers.  This year's conference will be held Oct. 25-28; next year's will be held Nov. 13-16 in Ottawa, Ontario.  Watch for the Ottawa call for papers early next year.

Josh Tate

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October 2, 2007 in Conferences | Permalink | Comments (0) | TrackBack (0)

A Holdout in Seattle

This morning's Seattle Post Intelligencer brings this charming story about a holdout, Edith Macefield, who refuses to sell her home in Ballard--and the construction that is taking place around her.

Some excerpts from the story:

Edith Macefield is stubborn. Man, is she stubborn.

That's what her mother told her when she was a little girl back in the 1920s. It's a characteristic that has followed her all her life. Now that unrelenting stubbornness has won the 86-year-old woman admirers throughout Ballard.

Macefield refused to sell her little old house where she has lived since 1966 to developers, forcing them to build an entire five-story project, which includes a grocery store, fitness club and parking garage, around her.

She was offered $1 million to leave. She turned it down flat.

"I don't want to move. I don't need the money. Money doesn't mean anything," she said last week....

"When she digs her heels in, there is no changing her mind, she is set in her ways," said her friend, musician Charlie Peck, who has known her for more than 20 years.

Ballard residents, lamenting the loss of their blue-collar, Scandinavian-rooted neighborhood as it disappears beneath swanky condominiums, sprawling grocery stores and trendy restaurants, see Macefield as a symbol of the rough-and-tumble Old Ballard, and they cheer her on.

"People with money are going to push wherever they can to get what they can. It is nice to see somebody resisting," said Ben Anderson, who drives by the place on his way to work and first noticed Macefield's little house with the brown, faux-brick siding, a few months ago.

Alfred L. Brophy
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October 2, 2007 | Permalink | Comments (0) | TrackBack (0)

Advice to Law Journals: Part 10

Rembrandt Continuing in our series on advice to law journals:

10    approach skeptically pieces that reject wholesale accepted wisdom

I read a lot of pieces that seek to remake the world.  And, while that is a noble goal, those pieces are hard to carry off well.  So, approach them skeptically, but realize that sometimes people succeed in remaking the world.  So you may be reading the next Transformation of American Law, Death of the Irreparable Injury Rule, Commodity & Propriety: Competing Visions of Property in American Legal Thought, "Two Views of the Cathedral," or "Property, Utility and Fairness: Comments on the Foundations of Just Compensation Law" (works that rejected in whole or part conventional wisdom).  And even pieces that reject wholesale wisdom and are not very successful at it may get a lot of attention.

Endnote:  The illustration needs a little explanation.  I had a hard time finding a public domain image of a skeptic, so I thought that I'd use Rembrandt's sketch of Abraham Entertaining the Angels.  Sarah, you may recall, was a skeptic.  Thanks to our friends at the National Gallery for the image.

Alfred L. Brophy

October 2, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Monday, October 1, 2007

Leona Helmsley and the Dead Hand

I’d like to thank Al, Ben, and Rose for inviting me to guest blog here. 

As Ben said, my first post will be devoted to the so-called Queen of Mean, Leona Helmsley, who died Aug. 20, 2007 at the age of 87.  Leona’s will has been given a lot of attention in the press, mostly because it establishes a $12 million trust for the alleged benefit of her dog, Trouble.  Somewhat less attention has been given to another provision of the will, which imposes a condition on distributions from another testamentary trust created for the benefit of two of Leona’s grandchildren, David and Walter Panzirer.  This clause provides that David and Walter are not entitled to any distributions unless they visit the grave of their father, Leona’s son, “at least once each calendar year, preferably on the anniversary of my said son’s death” (with an exception if David and Walter are prevented from doing so by mental or physical disability).  This provision has been criticized as a bad and clumsy example of dead hand control.  (Some have cleverly suggested that the beneficiaries could satisfy the requirement by visiting the gravesite for a few minutes every two years, provided they do so just before and after midnight on Jan. 1.)

I have previously written about so-called “incentive trusts” such as these, which are apparently becoming more common, although they tend to be discouraged by leading estate planners.  Some would argue that, because Leona has the right to do whatever she wishes with her property during her lifetime, she should be able to attach conditions to its distribution after her death.  Given the abolition in many states of the Rule Against Perpetuities, however, it is now possible to tie up property in a trust for several generations.  Do we really want the Leona Helmsleys of the world to have the power to restrict access to their property indefinitely?  On the other hand, some incentive trust provisions (such as conditions promoting education and hard work) may be socially beneficial, if the beneficiaries are not intrinsically motivated to engage in the desired behavior.  In any event, courts will have to wrestle with these issues in the future as beneficiaries inevitably bring lawsuits to modify or terminate incentive trusts.

Josh Tate

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October 1, 2007 in Future Interests and the RAP | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Josh Tate

We're delighted that Josh Tate (SMU) will be joining us for a guest stint here at PropertyProf.  Josh is a legal historian who writes and teaches about property and wills & trusts.  His dissertation, which is in progress, focuses on property rights and remedies in medieval England.  His many articles include  Ownership and Possession in the Early Common Law, forthcoming from the Am. J. Legal Hist.  Josh is also up on current legal events, and among other things will be discussing Leona Helmsley's will.

Welcome Josh!

Ben Barros

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October 1, 2007 in About This Blog | Permalink | Comments (1) | TrackBack (0)

Colburn Lectures on Natural Resources

Jamison Colburn (Western New England) will give two Stegner Center Lectures at the University of Utah this week:

On October 1, he will speak at a Downtown Continuing Legal Education (CLE) brown bag lecture at Jones Waldo Holbrook & McDonough. His talk will address "Where the Fire Meets the Road: RS 2477 and the Healthy Forests Restoration Act." Advance registration and payment of $10 for lunch is required. To register, call 581-7356.

On October 2, at the College of Law, Colburn delivers his Stegner Center Young Scholar Lecture: "The Fire Next Time: Planning Land Uses in the Wildland Urban Interface." In this lecture, which is free and open to the public and members of the legal community, he will discuss the “not so aptly titled” Healthy Forest Restoration Act, the Forest Service planning rules, and the relationship each bears to local governmental authority to plan/zone/police land uses on private lands. One CLE credit is provided.

Ben Barros

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October 1, 2007 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Interesting Eminent Domain Compensation Case

The Columbus Post-Dispatch has a report on an interesting eminent domain damages case.  An excerpt:

Canal Winchester wants the land to link a bike path between Rager Road and the village swimming pool. It used eminent domain to take a strip of Stebelton's 80-acre property and hired an appraiser who determined that the $9,249 would be enough compensation.

"It wasn't fair at all," Stebelton, 75, remembers thinking.

Stebelton was the only one of eight property owners who didn't agree to sell his land to the village for the path. Instead, he went to court to challenge the village's valuation.

The jury decided Sept. 20 that the land the village wants, along the northern edge of his property, is worth $37,000. But the jury also decided that by taking it, the village was closing off a back entrance to the property and damaging the value of the rest of Stebelton's land by $558,625.

Ben Barros

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October 1, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, September 30, 2007

Rosin on Benchmarking the Bar

Professor Gary Rosin of South Texas College of Law has just posted "Benchmarking the Bar: No Unity in Difference Scores " on ssrn.

His abstract is as follows:

Under ABA proposed Interpretation 301-6, the primary benchmark used to measure the adequacy of a law-school's academic program would be the amount by which is “local” Bar passage rate for first-takers differs from the overall passage rate for all first-takers from ABA-approved law schools. The study used generalized linear modeling as a method to compare Bar “difference scores” of ABA-approved law-schools in two states, New York and California. The study found that Bar difference scores in California were significantly more sensitive to changes in law-school relative LSAT scores than were Bar difference scores in New York. Bar difference scores - subtracting the “local” overall ABA Bar passage rate - do not fully adjust for variations in state grading practices, especially differences in minimum passing scores (“cut scores”) . . .

Propertyprof readers will recall that we discussed 301-6 earlier this year.  Rosin's paper has important implications for how we think about the use of LSAT scores for admissions, as well as bar pass rates for accreditation.

Alfred L. Brophy
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September 30, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)