May 27, 2011
Battle Over the President's Body
The facts are quite Jerry Springer-esque. In 1948, President Pérez married his first cousin, Blanca Rodríguez. Then, in 1966 he began an intimate relationship with another woman, Cecilia Matos. Hoping to end his marriage, President Pérez initiated divorce proceedings against Rodríguez. She contested them, and a Venezuelan court refused to end the marriage. Pérez then changed tactics. In 1999, he moved with Matos to Miami, where he died last December.
The legal problem is that both Matos and Rodríguez want control over Pérez's burial. Specifically, Rodríguez hopes to return Pérez's body to Venezuela, while Matos wants to bury him in Miami. Florida law gives the surviving spouse priority in choosing where to bury the deceased. In this case, that's Rodríguez, who was still married to the ex-president at his death, even though she hadn't him since he left Venezuela in 1999. However, the law also states that if the deceased's intent can be established by clear and convincing evidence, it can outweigh a spouse's wishes.
If I was betting on this case, I'd put my money on Pérez staying in Miami. First, Matos claims she and Pérez purchased side-by-side burial plots. If true, that seems like pretty solid evidence of his intent. Second, there's a political sub-plot here. Hugo Chavez, the current president of Venezuela, appears to bear a pretty serious grudge against Pérez. I doubt a judge in the U.S. will want to give Chavez the opportunity to use Pérez's burial as some kind of political stunt.
Friday's Architecture Moment: The Book Igloo
A little bedroom made of books:
If you’re a bibliophile like me, you may have fallen asleep amidst a pile of your favorite books as a youngster too. I would have loved nestling into the Uroko House book igloo with all of my treasured fairy tales. Dreamed up by Point Architects, the cozy enclosure that surrounds a child’s bed is also a storage-filled bookshelf. Now your little ones can nod off to dreamland surrounded by their beloved bedtime stories.
Blasi on Tax Benefits in Leasing Transactions
Ronald Blasi (Georgia State) has posted Electing Tax Benefits in Leasing Transactions (Daily Tax Report) on SSRN. Here's the abstract:
This article recommends allowing a lessor and a lessee to decide between themselves which party will be entitled to the tax benefit associated with the ownership of the leased property. It describes why the current linkage of tax benefits to property ownership is economically inefficient and disadvantageous to the parties and to the economy as a whole. Existing law diminishes the intended effect of tax incentive legislation, reduces a firm’s cash flow and reported earnings, distorts competition and decision making, and inhibits investment in efficient business assets. The proposed election addresses these shortcomings, while not violating anti-avoidance tenets of taxation.
May 26, 2011
NPR on the Origins of the Financial Meltdown
On Tuesday, Fresh Air did a program on the collapse of mortgage market that may be of interest to Property Profs.
Dave Davies interviewed Gretchen Morgenson, who writes about financial markets for the New York Times, on her new book, Reckless Endangerment: How Outsized Ambition, Greed and Corruption Led to Economic Armageddon. Morgenson and her co-author chronicle:
the failure of regulators to control greed and recklessness on Wall Street. And it focuses particular attention on the managers of Fannie Mae, the government supported mortgage giant. Morgan writes that CEo James Johnson built Fannie Mae into the largest and most powerful finacnial institution in the world. Morgenson details how the company fudges accounting rules, generated big salaries and bonuses for its executives, used lobbying and campaign contributions to influence Congress, and encouraged the risky financial practices that led to the crises.
Somin on the Judicial Reaction to Kelo
Ilya Somin (George Mason) has posted The Judicial Reaction to Kelo (Albany Govt Law Review) on SSRN. Here's the abstract:
Kelo v. City of New London was one of the most controversial decisions in Supreme Court history, generating a massive political backlash that led 43 states to adopt eminent domain reform laws restricting economic development takings of the kind the Court ruled were constitutional. In addition to the better-known legislative reaction, Kelo was also followed by extensive additional property rights litigation in both federal and state courts. This is the first article to systematically analyze the judicial reaction to Kelo.
Part I briefly summarizes Kelo and its holding. Part II considers state court interpretations of their state constitutional public use clauses since Kelo. Most of these cases have repudiated Kelo, either banning economic development takings outright or significantly constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the one area where Kelo might potentially permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the officially stated rationale for the taking is a pretext “for the purpose of conferring a private benefit on a particular private party.” State and lower federal courts have not come to any consensus on what qualifies as a pretextual taking. Nevertheless, several decisions suggest that the pretext standard may have some bite.
Overall, state courts have taken a skeptical view of Kelo, often rejecting it as a guide to the interpretation of their state constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at the state level.
May 25, 2011
Disinterring Leather Man
A fascinating story from Ossining, New York caught by eye this morning in the New York Times. Local history buffs from New York and Connecticut (and fans of Pearl Jam) may already be aware that back in the 1860s-1880s, a man known only as “Leather Man” walked a 365 mile circuit through at least 41 small towns on a 34-day cycle. Apparently he was so compulsively prompt on this tour that you could set your calendar by him. Leather Man was a source of fascination during his lifetime. Apparently “thousands” of articles about him appeared in local newspapers
at the time, documenting his travels. He never spoke, lived in lean-to’s or caves, and wore a 60-pound suit of clothing made from discarded boots (thus, his name).
Leather Man died in 1889 in one of his regular shelters near Ossining, New York. He was buried in the pauper section of Sparta Cemetery at government expense, without a tombstone. In 1953, a bronze plaque was added to the fieldstone marking his grave. It identifies him as “Jules Bourglay,” a native of Lyon, France. But researchers say that there is no more reason to believe this origin story than dozens of others. Leather Man is a mystery. His grave, situated along busy Route 9, is a stop on dozens of local tours. The elderly and school children, along with curious individuals, visit his grave often.
[More after the jump]When Leather Man was interred in Sparta Cemetery, it was owned by the First Presbyterian Church of Ossining. In 1984, the cemetery was deeded to the Ossining Historical Society Museum, a New York not-for-profit corporation. And here’s where the story gets interesting in the present day. Two things about Leather Man’s internment bothered the Historical Society.
First, the pauper’s section of Sparta Cemetery is apparently treacherously close to the right-of-way for Route 9, a busy highway with no shoulder. There was therefore a public safety concern about the location of such a popular grave. The Historical Society desired to disinter Leather Man and reinter him in an empty grave closer to the center of Sparta Cemetery, in a location described in court filings as a “safer and more dignified setting.” (The petition and order can be downloaded here.)
Second, there is significant curiosity about Leather Man. Was he really French? Was he autistic? What did he look like? Since the Historical Society desired to move his grave for safety reasons, it seemed like a good idea to take the opportunity to answer all of those lingering questions. Therefore, the Historical Society petitioned the Supreme Court in the County of Westchester for permission to do the following:
“(1) the removal of the remains of the Decedent from his present burial location in Sparta Cemetery for the purposes of improving the public health and safety;
(2) for the purposes of expanding the historical record, testing including and limited to (a) forensic gross morphological evaluation of the biological life history of Decedent, to be performed within the cemetery without the destruction of remains, after which testing the remains will be reburied; (b) a CT scan of the skull for the purposes of three-dimensional imaging of the cranio-facial features for a reconstruction of the Decedent’s face, without the destruction of the skull, after which testing the remains will be reburied; and (c) DNA testing of a molar and/or fragment of large bone, preferable [sic] from the femur and weighing approximately 4 grams, which will involve the destruction of such dental and/or bone tissue submitted for testing, so as to determine the Decedent’s ancestry; and (d) stable carbon isotope and trace element analysis to determine the diet of the Decedent which will involve the destruction of such dental and/or bone tissue submitted for testing; and
(3) reburial of the remains at Sparta Cemetery in an appropriate location away from New York State Route 9.”
The Historical Society relied upon two New York statutes to give it the authority to (1) disinter and reinter Leather Man; and (2) obtain the biological material necessary for the testing described above.
First, the Historical Society, as owner of Sparta Cemetery, alleged to be the only party with standing to remove his remains pursuant to New York Not-for-Profit Corporations Law Section 1510. Leather Man died anonymously in 1889 and was buried in a pauper’s grave. Therefore, the potential identities of other categories of persons with standing (the burial plot owners, the surviving spouse of the decedent, the children of full age of the decedent, and the parents of the decedent) were fairly moot.
Second, the Historical Society alleged that it had the right to make an anatomical gift of the biological material of Leather Man pursuant to New York Public Health Law Section 4301(h). Pursuant to the New York anatomical gift law, if a person did not make an anatomical gift, a list of persons, in order of priority, have the right to make anatomical gifts on behalf of a decedent “in the absence of actual notice of contrary indications by the decedent … or reason to believe that an anatomical gift is contrary to the decedent’s religious or moral beliefs.” Not surprisingly, Leather Man left no documentation that, 122 years later, provides actual notice of a contrary indication to make an anatomical gift. Since, you know, we don’t even know his name. Anyway, the Historical Society, presumably as owners of the Sparta Cemetery, alleged that they fall into the final class of persons able to make an anatomical gift – “any other person authorized or under the obligation to dispose of the body.” Since the body was disposed of quite some time ago, long before the Historical Society was founded, this doesn’t ring true to me, but apparently no one contested the argument.
The Historical Society was granted permission by the Supreme Court of New York, County of Westchester, to exhume Leather Man and conduct the testing. Said exhumation occurred last week and, much like Geraldo Rivera’s much-hyped opening of the Al Capone vault, found nothing other than coffin nails and dirt. No biological material was found to be tested.
I find this story to be fascinating. I have blogged previously about my interest in “Written in Bone: Forensics Files of the 17th Century Chesapeake,” the Smithsonian’s CSI-type exhibit about the deceased residents of Jamestown, Virginia, and wondered about the legal authority to disinter non-Native American human remains, conduct testing, and place them in a museum. I haven’t been able to find a developed body of law on this subject, and I think that the Historical Society’s court filings demonstrate that gap. My preliminary read is that the Historical Society was successful in court because (1) they controlled the remains which were buried in a pauper’s grave in a cemetery they owned; and (2) no living descendants or others with legal standing came forward to protest. To the latter point, none of the statutes relied upon by the Historical Society would have given any legal standing to descendants other than surviving spouse, parents, and children. For a person who died in 1889, no living descendants would appear to have standing in New York. I find it exceedingly clever (if disingenuous) that the Historical Society used the anatomical gift law as its legal basis for using biological material to satisfy historical curiosity. I’m a totally geeked-out history buff but, seriously, how does finding out whether Leather Man was autistic, or French, improve the human condition? If I own the cemetery in which they are buried, can I dig up anyone I’d like to satisfy whatever curiosity I may have about them? To be fair, the Historical Society and cooperating scientists stressed that Leather Man’s remains would be treated with respect and dignity. I have absolutely no reason to doubt that. But this story raises a question that continues to fascinate me. How do we, as a society and a system of laws, reconcile the “rights” of the dead with the needs and desires of the living?
[Comments will be held for approval and may be delayed]
The Tragedy of Zoning
The new residents of the apartment building may sometimes be of lower economic status, on average, than the individual owner of the home that was replaced, but collectively, the economic productivity of the land (in the form of rental income and/or property taxes) has dramatically increased. Homeowners may object to the presence of the new building, or possibly the presence of its residents, but they are nonetheless the beneficiaries of the increased land values should they decide to sell.
I think there's some truth to this argument, but I'm not sure that the author fully considers how profoundly land use regulations limit the supply of housing, and thus drive up prices.
LaCroix on the Unresolved Issues Surrounding Municipal Use of Green Policies
Catherine LaCroix (Case Western) has posted Urban Green Uses: The New Renewal (Planning and Environmental Law) on SSRN:
As they confront dramatically reduced population and little prospect of significant near-term growth, several cities in the rust belt have turned to innovative tactics to put excess land to beneficial use. These measures include the creation of active land banks, downzoning for "green" uses such as urban agriculture, possible consolidation of population and abandonment of utility and public services, and installation of green infrastructure, such as stormwater retention and renewable power generation facilities, on publicly owned land. In the process, these cities face intriguing legal questions: What steps are needed to form an effective land bank? What is the liability of land banks for cleanup of contaminated properties? Are cities required to provide municipal services to unpopulated areas within their boundaries? In the unlikely event that a city uses eminent domain to relocate owners of sparsely-populated areas, what is “just compensation” for this action? What issues might arise with zoning land for less intensive uses such as urban farms? Some of the answers are emerging. For example, state authorizing legislation has been enacted to establish the type of active land bank successfully implemented in St. Louis, Cleveland, and other cities, and it appears that cities need not provide infrastructure and services throughout their land area, though they are best advised retain any rights of way or easements that may be needed in the event of future development. Other questions – both legal and practical - have yet to be fully answered, as rust belt cities lead the way in what might tentatively be called "The New Renewal" – a form of sustainable development that dovetails well with the policies of cities that seek to combat and adapt to climate change.
May 24, 2011
Map of the Day: Bad City Slogans
Rupal Parekh blasts Buffalo's new slogan
Tourism slogans are reliably corny, but last week New York state took the grand prize for "Huh?" with a newly anointed slogan for its fair city to the north that's best known for its proximity to Niagara Falls and everyone's favorite 25-cent bar snack. It came up with this: "Buffalo. For Real." (And sadly, yes, that's for real).
Here are some other whoppers:
View City Slogans in a larger map
(hat tip: The Daily Dish)
A Landlord at the Door
The LA Times on when a landlord can access a tenant's apartment.
Spillway Takings Claims
Commentator Jeff gives an update:
Notwithstanding the existence of flowage easements on the affected properties, there is still a fair chance that the owners of the land flooded by the opening of the Morganza Spillway will file a takings suit against the government. The owners of the Missouri farmland flooded when the Corps breached the Birds Point levee near Cairo, IL a couple of weeks ago have already filed a takings suit in the U.S. Court of Federal Claims (Case No. 11-275), even though those properties are also located in a floodway and are subject to flowage easements.
May 23, 2011
Tyson's Tattoo, Ctd.
This weekend, The New York Times did a big story on the controversy over the Mike Tyson-ish tattoo that appears in the new Hangover movie (our original post here). In an extremely cool move, the Times also links to the artist's complaint and the Warner Bros response.
Singer on Property Regulations as Lynchpin of Democracy
Joseph Singer (Harvard) has posted Property Law as the Infrastructure of Democracy on SSRN. Here's the abstract:
It is commonly thought that if one is in favor of strong protection for property rights, liberty, and the free market, one must believe in a minimal state that limits "regulation." But if we pay attention to the history of property law, it becomes clear that all these things can only exist with a robust regulatory structure. Libertarian calls for small government fail to recognize that modern property rights came into existence because of laws that prohibited feudalism, slavery, caste status, and discriminatory barriers to entry to the marketplace. Modern statutes go beyond these foundational regulations to protect consumers by establishing minimum standards for market relationships. Property law (including consumer protection laws) functions as a private constitutional structure that shapes the contours of economic and social relationships; it is the infrastructure of democracy. Its core mission is to define the framework for a free and democratic society that treats each person with equal concern and respect.
From the Atlantic:
Istanbul is one of the world's great cities with a population of 15 million spread out over 700 square miles of land. While that's no Los Angeles-level of sprawl (L.A.'s metro area is pegged at 4,800 square miles), the Turkish city has been growing and spreading rapidly over the past few decades. The city has tripled in area over the last 35 years. In this false color satellite image taken by the German space agency, the DLR, the yellow areas reflect human buildings.