Saturday, August 8, 2009

The Latest on Hawaiian Grave Litigation

From Carl Christensen comes word of a story from the Honolulu Star Bulletin, about a motion by the Kawaiaha'o Church's motion to dismiss a lawsuit filed by Abigail Kawananakoa "for disturbing the remains of her ancestors, the family of Queen Kapiolani."

From the article:

Kawananakoa, 83, filed suit against the church in state Circuit Court last month alleging that it invaded the queen's burial plot, disturbing the human remains during construction at the start of this year.

The suit seeks to prevent further harm to remains at the cemetery.

The church is building a new, $17.5 million multipurpose center next door to its sanctuary at the site of the former Likeke Hall.

The picture of the church is from the Library of Congress' Historic Buildings website.

Alfred Brophy

August 8, 2009 in Land Use | Permalink | Comments (0) | TrackBack (0)

Thursday, August 6, 2009

Fruehwald on A Biological Basis of Rights

Edwin S. Fruehwald (Hofstra) has posted A Biological Basis of Rights on SSRN.  Here's the abstract:

Rights are an essential part of a modern legal system. This paper advocates rights based on a different kind of 'natural law,' rights which come not from God or externally from nature, but from human behavior–how our minds evolved. Under this approach, there are two kinds of truth: anthropocentric truth and non-anthropocentric truth. Non-anthropocentric truths are the laws of physical nature and mathematics; they are unassailable truths that 'are true regardless of what we happen to think about them.' Anthropocentric truths are 'truths that are true only because of the kinds of minds that we happen to have and the cultural worlds in which our minds developed.' This paper proposes that rights can be based on anthropocentric truths – that rights arose from human nature. In particular, anthropocentric rights developed to deal with specific adaptive problems in the Environment of Evolutionary Adaptedness. The fundamentals of rights derived from how our brains evolved with the details arising from how a particular culture reacted to how differing geography, ecology, and social conditions affected survival. Part II of this paper will introduce basic concepts of behavioral biology. It will first discuss neuro-cognitive universals, the universal grammar of morality, and universals in the law. Next, it will examine why cultural differences occur despite the existence of universal human behavioral traits, and then it will consider the selfish gene, a central characteristic of human behavior. Subsequently, it will show how society and the social contract evolved as a means for survival. Part III will present a biological basis for rights. It will first demonstrate the need for rights based on biological factors and introduce the sources of rights in human nature. Next, it will discuss the biological basis of four kinds of rights – property rights, fairness rights, liberty rights, and equal treatment rights. The final part will illustrate how biological rights exist in different cultures.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 6, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 3, 2009

Maine Supreme Court on Adult Adoptions

Terry Turnipseed (Syracuse) has passed on the news that the Maine Supreme Court recently ruled that an adult adoption of a same-sex partner was legitimate.  Terry notes that "the dispute mostly surrounded a very large trust set up by one of the founders of IBM for the benefit of his descendants and whether the adoptee-lover of a descendant could gain a share of the trust (worth huge bucks).  The Court said she was indeed part of the trust beneficiary class.  This adoption was one of two case studies I used in my latest article to show why someone might wish to adopt one’s lover or spouse.  States go both ways in allowing the adoption of an adult lover or spouse.  Despite its liberal leanings, for example, New York State, by common law, currently does NOT allow adult adoption of lovers or spouses, though the cases have flip-flopped over time.  Most states do, however."

Terry's article, Scalia's Ship of Revulsion Has Sailed: Will Lawrence Protect Adults Who Adopt Lovers to Help Ensure their Inheritance from Incest Prosecution?, is available on SSRN.  Here's the abstract:

There is a growing trend in this country - startling to many - of adopting one's adult lover or spouse for various reasons, mostly inheritance-based. Should one who adopts his or her adult lover or spouse be prosecuted for incest? Think about it: the person is having sexual relations with his or her legal child. Is that not incest? Even if a state agrees that it is, will Lawrence v. Texas now protect this behavior, preventing these people from being successfully prosecuted for this type of incest? Indeed, given its prevalence in modern society, will this be the first post-Lawrence individual sexual privacy rights case to which the Court will grant a writ of certiorari?

In no less than four instances, Justice Scalia in Lawrence warned that adult incest can no longer be outlawed by state or federal governments: with the decision in Lawrence, Justice Scalia lost his incest repellant (i.e., Bowers). Others have echoed Justice Scalia's sentiments. Since the Court's decision in Lawrence, the median viewpoint among legal scholars seems to be that incest is the next battle. It appears that neither Justice Scalia, nor legal scholars realize that the parade of horribles - with adult adoption of lovers leading the band - has already started. It has started with a whimper, though, and not a bang. It has not begun with what is considered "core" incest (sexual relations between biological parents and children or between biological full siblings), but instead with a growing set of behavior classified in many states as incest - sexual relations between an adult who adopts his or her lover or spouse where no parent/child relationship ever existed between the two (a subset of "non-core" incest that also includes sexual relations between distant relatives such as cousins).

For some time now adults - both heterosexual and homosexual - have been adopting their lovers and spouses all over the country for various reasons: to better guarantee the adoptee's right to inherit directly from the adoptor; to keep collateral relatives from having standing to contest the adoptor's estate plan; or to add a loved one to a class of trust beneficiaries (allowing the adoptee to inherit "through" the adoptor). It appears that, post-Lawrence, both the academy and the judiciary have completely overlooked this steadily growing, albeit stealthy, trend.

I wonder if both sides are scared to go to war? Are they scared to engage fully in a prosecution for this type of incest, only to be rebuffed by a Lawrence-based constitutional defense? The stakes are extraordinarily high. If a constitutional challenge to a prosecution for incest of an adult who adopted a lover where no parent/child relationship ever existed were successful, it would likely validate at least some, and possibly all, of Justice Scalia's anxious Lawrence dissent, and the whole house of sexual-crime cards could well fall with it: not only for this strand of incest laws, but also for laws addressing "core" incest, adultery, bestiality, masturbation, fornication, bigamy, and possibly ending with the brass ring of same-sex marriage. Though no one seems to realize it right now, the outcome of this upcoming battle might well impact millions of American lives.

It seems to me that, on balance, the stronger legal arguments favor constitutional protection against criminalization of sexual relations with one's adopted adult lover where no prior parent/child relationship ever existed, i.e., Lawrence protection for this non-core behavior. I suspect that with the right set of facts, the right proponents, and a Court that takes Lawrence at its word, incest laws as they relate to adult adoption of these lovers will fall, and fall relatively soon. My view is that incest statutes may survive a facial attack under Lawrence, but should fall in a challenge as-applied to the non-core incest scenarios addressed in this Article.

An adult who adopts his or her lover (neither ever having been in an adult/child relationship) would seem ripe for protection under Lawrence. This is happening with enough frequency that surely multiple cases will emerge over the next few years, very likely yielding differing results. This would make this issue primed for the Court to grant certiorari sooner rather than later, quite possibly the first post-Lawrence case down Justice Scalia's Teflon-coated slope. If, as I expect and hope, Lawrence is extended to protect against criminalization of this behavior, opponents and supporters will, in time, look back at this issue as the catalyst that spread the Lawrence wildfire. How much of the personal sexual privacy landscape that becomes enveloped by the protection of Lawrence is anyone's guess, but perhaps no post-Lawrence legal issue is presently riper for review, making adult adoption of lovers the stealth bomber that Justice Scalia should fear the most.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 3, 2009 in Recent Cases, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Poster Proposals for AALS Annual Meeting

The AALS Property Section is soliciting proposals for poster presentations for the 2010 AALS Annual Meeting in New Orleans.  Here's a memo from Jane La Barbera with the details:

To:       Law Teachers
From:  Jane M. La Barbera
Re:       Poster Presentation at 2010 AALS Annual Meeting
You are invited to submit a proposal of a poster presentation for the 2010 AALS Annual Meeting in New Orleans, Louisiana (January 6-10, 2010).
Please send your proposal by e-mail to by September 4, 2009. The proposal should state your name, the name of your law school, the Section for which you are submitting, a title of the poster, a description of what you will be presenting and an actual electronic copy of the poster itself. Your proposal will be sent to the Section Chair and Chair-elect and they will review and select the posters that will be presented as the Section's posters at the 2010 AALS Annual Meeting. This is an opportunity to share your work with the larger academic community. If your Section is not sponsoring posters, you may still submit a poster proposal; the AALS Committee on Sections and Annual Meeting will review it. AALS will notify all posters proposers by October 14, 2009 of the section's decision.
The following AALS Sections are seeking proposals from individuals for poster presentations for the 2010 AALS Annual Meeting: 
1.      Administrative Law
2.      Aging and the Law
3.      Animal Law
4.      Clinical Legal Education
5.      Civil Rights
6.      Contracts
7.      Disability Law
8.      Education Law
9.      Family & Juvenile Law
10.    Graduate Programs for Foreign Lawyers
11.    International Human Rights
12.    International Legal Exchange Section
13.    Law and Interpretation
14.    Law, Medicine and Health Care
15.    Legal Writing, Reasoning and Research
16.    Minority Groups
17.    Nonprofit Law and Philanthropy
18.    Pro-Bono & Public Service Opportunities
19.    Property Law
20.    Taxation
21.    Teaching Methods 
Goal of Posters at AALS Annual Meeting 
Posters are intended to provide authors an opportunity to present in clear and succinct fashion the thesis and conclusion of their research or to describe teaching innovations outside formal program presentations. Because the focus is on the content of the research and innovative teaching, posters that are primarily promoting a particular school program, project, book or materials are not eligible for poster display. Other advertising or fliers are not permitted with posters.
Audience for Posters
The readers of posters may be professors casually passing through the hallway, professors who are reading posters for insights into possible interdisciplinary links to their own work or professors who seek out a particular poster because it presents research important to the reader. It is important to keep poster information succinct and readable increases exposure to the core ideas of the poster.
Who Can Submit a Poster?
A faculty member or professional staff member at an AALS member law school or AALS fee-paid law school can submit a poster proposal to a Section.
Display of Posters
Posters will be displayed outside in the hallways Hilton New Orleans Riverside from Wednesday, January 6 through Sunday, January 10, 2010. Posters will be grouped and identified as a Section's poster. AALS will provide the easels and the poster presenter will provide the poster. Your poster will be displayed on an easel and needs to be easily read from 2-3 feet away, the content easily digested by viewers who stop for a minute or two to review your work. Specific suggestions on size, format and logistical details of preparing and getting your posters to New Orleans are described below.  
Poster Presentations
AALS will schedule an hour for Sections' posters to be presented during the Annual Meeting. The current plan is to have one day during the Annual Meeting with three one hour time slots assigned to poster presentations, most likely, the day of presentation will be either Friday, January 8 or Saturday, January 9. Poster presenters should be prepared to have their posters displayed in the hallways from January 6 through January 10, 2010 throughout the AALS Annual Meeting. If AALS receives too many Section posters to fit in the appropriate space, we will have presenters post their posters on an easel for an hour and allow other posters to replace it, so that all can be shown. 
Poster Guidelines:
Posters should easily read from 2-3 feet away. Text should be limited to the core ideas and presented in a font size that allows our aging academics to read it with ease.
Experienced poster presenters suggest 3-6 graphics to mix in with your text to make the posters more engaging. Posters should be mounted on a hard backing such as foam core that can be placed on an easel. Foam core is available at print shops, art supply stores, FedexKinkos, Staples, etc.  FedexKinkos sells a 3'x4' foam core poster board for approximately $36. The closest FedexKinkos store to the Hilton New Orleans Riverside is located at 901 Convention Center Blvd, Suite 100 (504) 585-5750.
Because posters typically will be placed on easels in an area in which other posters are displayed, it is important that posters not exceed 3ft x 4ft (36 x 48 inches). 
Other than easels, AALS does not provide construction materials. Unless you have the AALS decorator (C.H.S.), the hotel's Business Center or local copy place assist you with your poster, please bring your own pins, tacks, tape, and whatever other set-up materials you need to assemble your poster. Please note that electricity will NOT be provided to the posters. There is no audio visual equipment with posters.
Many universities offer assistance in poster design and printing. Research assistants are also a good resource for figuring out how to put the poster together. 
Some good tips and examples of posters can be found at these websites:
Shipping Posters
You are responsible for shipping your poster to and from the AALS Annual Meeting.
1) The Hilton New Orleans Riverside's Business Center, second floor near the Hilton Exhibition Center, will accept mounted posters or posters rolled into a tube and shipped in care of yourself for approximately $10-20 (price is determined by the actual size and weight). Please send for delivery no earlier than three days prior to your arrival date. If you wish to send the poster back to the point of origin after the Annual Meeting, you may use your own Fedex, UPS or Airborne account or a credit card; the Business Center will charge approximately a $10-20 handling fee to ship the poster out.   If you plan to ship your poster home, please retain the box in which your poster was originally shipped since the hotel does not stock oversized boxes. 
Please note you must be a guest staying at the Hilton New Orleans Riverside in order to ship the poster in care of yourself. If you are staying at one of the overflow hotels, you will need to ship your poster to yourself at the hotel you at which you are staying.
2) Posters shipped to the hotel can be taken to the local FedexKinko's (901 Convention Center Blvd, Suite 100 (504) 585-5750) where they will mount it on foam core for $5 per square foot.
3) FedexKinko's can receive an electronic file of posters (PDF preferred), produce a poster, affix it to foam core and deliver it free of charge on orders above $50 ($20 surcharge for orders below $50) to the Hilton New Orleans Riverside (24 hour advance notice needed for delivery). The cost to produce, print and mount a poster onto foam core is $156 for a 3x4' color poster on matte paper - there is a discounted price of $130 if you also have the poster laminated; $96 for black and white up to 3' in width.
Files can be submitted to the FedexKinkos Web site( - select Print to FedexKinkos Location and follow the instructions.  You will receive an email confirmation followed by a phone call from FedexKinkos.  Files may also be sent to FedexKinko's at; 24 hour turnaround. Payment by credit card is required.
4) The exhibit decorator, Convention Handling Services (C.H.S.), offers several options for receiving and mounting posters:

Package #1 - Decorator provides 3'x 4' foam core. Presenter takes care of shipping poster to and from the Hilton New Orleans as well as affixing the poster to the foam core.  $22.50
Package #2 - Decorator will receive mounted poster and ship it back to point of origin at conclusion of the Annual Meeting.  $25.00
Package #3 - Decorator will receive unmounted poster, provide you with a 3'x4' white foam board and the materials needed to affix the poster to the board, and ship it to point of origin at conclusion of the Annual Meeting. You are responsible for affixing the poster to the foam board.  $47.50
Removing Posters at the End of the Annual Meeting
Posters should remain on the easels until Sunday, January 10, 2010. At the conclusion of the Annual Meeting, the hotel will discard any remaining posters. If you wish to keep your poster, please plan to retrieve your poster before 12:00 p.m. and return it by the various methods listed above.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 3, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)