July 31, 2010
It seems to me the so-called 'mosque at ground zero' controversy is a story about losing faith which, ironically, is causing me to lose faith. I'll try to explain.
As background: a Muslim group has proposed building a center -- not a mosque -- two blocks from -- not at -- ground zero. Several right wing ideologues (including the former half-term governor of Alaska and former Speaker of the House from Georgia), falling down upon their knees in gratitude for a tailor-made culture war issue, have seized upon the proposal and gotten good traction from it.
It is, of course, completely incompatible with conservative political philosophy that (1) politicians and demagogues from say, Alaska and Georgia, should use a national platform try to impact a local land use decision in New York , and (2) that government should interfere with and even prevent the practice of religion. But it seems to me that people now identifying themselves as conservative leaders have lost faith (if they ever had it) in the conservative idea of local decision-making and the free practice of religious faith.
The fact that the issue has been a political bonanza for those exploiting it suggests to me that we as a people have lost faith in the American idea that all faiths, and all people of good will, are welcome to coexist and even compete in the marketplace of ideas. The people trying to build this center hoped that it would make a statement to the world about both freedom and respect in the United States, and about the integration of Islam into American life. How much more clearly could American Muslims say to Al Qaeda and its ilk, 'you don't speak for us', than to help re-build near ground zero? But instead, our own fundamentalists have rushed to convey the opposite message: Al Qaeda was right; Muslims aren't part of the culture that was attacked; they don't belong here. And to our shame, we are apparently agreeing, which is making me lose faith in the electorate.
Thank goodness land use decisions are still local. To their great credit, Mayor Bloomberg and the Manhattan Community Board that must approve the project seem to be resisting all the political pressure the right can throw at them on the principled grounds that NYC is all about respect for all cultures and faiths, and that government has no place interfering with peaceful religious practice.
It's almost enough to restore one's faith.
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July 30, 2010
Martha Stewart Bakes a CC&R
July 27, 2010
Pomeroy on Surprise Liens on Real Property
Chad J. Pomeroy (Fabian & Clendenin, P.C.) has posted Ending Surprise Liens on Real Property on SSRN. Here's the abstract:
Academics, law makers, and the general public have long believed that "secret liens" are problematic. In real property, these are liens that are not recorded in the real property filing system. Secret liens become especially problematic when they are enforced, despite their secrecy, against subsequent purchasers of the property. If the purchaser does not satisfy the lien by paying the underlying debt, the lien holder can foreclose on the property. One of the main purposes of having real property recording statutes was to avoid "surprise liens" (secret liens afforded priority over subsequent purchasers) and ensure that real estate purchasers and investors are fully informed. Yet surprise liens continue to exist and are, in fact, increasingly accepted by lawmakers.
This Article examines two prototypical surprise liens – federal estate tax liens and mechanics’ liens – and proposes that these are indicative of a trend wherein modern lawmakers are increasingly tolerant of surprise liens. This Article then examines potential justifications for this deviation from the longstanding preference against these types of liens. First, some argue that property filing systems are economically inefficient. Second, some argue that creditors and purchasers do not actually check property filing systems. Finally, the Article identifies and addresses the possibility that law makers justify surprise liens based upon the identity of the lienor.
After examining these arguments, this Article concludes that the first two justifications are convincingly countered by existing economic theory and circumstances and that creditors and buyers do, in fact, rely on real property records. This leaves lienor identity as the true driver behind the rising acceptance of surprise liens. This justification, identified herein, is ultimately based upon the perceived social economic benefits arising from granting these favored classes the right to surprise liens. A careful examination of the full economic consequences of surprise liens, however, demonstrates that this justification is not sufficient and ultimately self-defeating.
Granting special rights to certain classes of lienors imposes higher individual costs than is commonly believed and also creates significant costs that likely counter any social economic benefits actually created. Additionally, surprise liens (even if economically justified) defeat basic conceptions of fairness inherent in the American system of jurisprudence and arising out of basic concepts of due process and social ethics. This Article therefore concludes that these liens should be removed through a strengthening of recording concepts at both a state and federal level.
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July 26, 2010
Jones on Property and Personhood
Jeff Jones (Lewis & Clark) has posted Property and Personhood Revisited on SSRN. Here's the abstract:
Almost thirty years have passed since publication of Margaret Jane Radin’s seminal work, Property and Personhood, in Stanford Law Review. Since publication, the article has been cited over 700 times. The doyens of property law and theory, and leading scholars in other subject areas, readily have called upon Radin’s piece.
In the article Professor Radin makes a compelling case for two claims. First, proper self-development, or personhood, requires individuals to have secure control over some things in their external environment in the form of property rights. Professor Radin calls property in service of personhood “personal” property. Second, property for personhood is one justification for property rights in general, but also for some current schemes of property entitlement. Professor Radin cites special protections accorded to home residence, rules governing eminent domain power, and free speech limitations on private property as examples of existing property rights that align with property for personhood.
This article presents a theory of property for personhood grounded in social science. The article is responsive to recent calls by scholars for greater research in the social psychology of property as it pertains to property law. The theory follows the framework established by Professor Radin, but uses material culture studies and other social science data to develop enriched accounts of personhood and object relations. The result is an entirely new personhood perspective and theory of property for personhood, including the types of property eligible for legal protection. Part I develops a new personhood perspective, that is, new accounts of personhood and object relations. Using this new personhood perspective, Part II introduces a new theory of property for personhood.
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July 25, 2010
The Strange Quasi-Property Status of Corpses.
I'm working on an article about cemeteries, which has led me down several tangential paths. One of the most obvious is the law's treatment of human remains. Pretty interesting stuff. Although at common law there is no express property right in human remains, the nearest relatives of the deceased have a quasi-property right in the remains which arises from their common law duty to bury the dead.
See, for example, Leno v. St. Joseph Hospital, 55 Ill. 2d 114, 117 (1973) ("The principle is firmly established that while in the ordinary sense, there is no property right in a dead body, a right of possession of a decedent's remains devolves upon the next of kin in order to make appropriate disposition thereof, whether by burial or otherwise.")
The confusion about what the common law means by "next of kin," "nearest relatives," etc. has led to some high profile wrangling over the remains of famous people, Anna Nicole Smith probably being the most recent example. Surely there have been countless battles that never reach the newspapers. As with many other legal issues surrounding the final disposition of human remains, it appears that this is an issue that we have collectively ignored and so rely upon a fairly unhelpful common law rather than a comprehensive set of rules.
This brings me to yesterday's New York Times, which describes the efforts of Jack Thorpe, son of Olympic athlete Jim Thorpe, to relocate his father's remains from Jim Thorpe, Pennsylvania, to his family's cemetery plot in Pottawatomie County, Oklahoma. When the elder Thorpe died of a heart attack in 1953, his third wife Patricia made a curious deal with the towns of Mauch Chunk and East Mauch Chunk, Pennsylvania. In exchange for the construction of a monument, perpetual care of the remains, and a roadside attraction, Patricia granted the towns the right to rename themselves "Jim Thorpe."
The children from Jim's first two marriages were divided over this transaction so Jack and his two remaining brothers waited fifty years, until the deaths of their older sisters and stepmother, to mount this challenge. Since Jim Thorpe was a Native American, his sons are suing for the relocation of his remains using the Native American Graves Protection and Repatriation Act of 1990 to claim that Jack Thorpe, as his son's lineal descendant, has legal claim to his father's remains.
This case gets to the heart of why I find cemeteries so interesting. There is apparently no money involved in this dispute. Instead, fifty years after Jim Thorpe's death, “I want to see him put away properly,” Jack Thorpe said, “I want to put him where he wanted to be.”
You can read the whole article here.
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