PropertyProf Blog

A Haunted House and a Rescission?

Because I know how much Ben loves Stambovsky, I thought I'd post a link to Fox News' discussion of whether some buyers can rescind their purchase of a "haunted house," Clifton Hall.   By the way, I don't think this has anything to do with the implied warranty of habitability.  I think the defect is patent.

Alfred Brophy 

Stone Age Grave Yard

The New York Times  has a story on stone age graves found in the Sahara (from the Sahara's "green period").  Very exciting--now what the law, if any, of cemetery access was is unknown and unknowable.  But there were some pretty elaborate funeral practices.  As the article says:

In its first comprehensive report, published Thursday, the team described finding about 200 graves belonging to two successive populations. Some burials were accompanied by pottery and ivory ornaments. A girl was buried wearing a bracelet carved from a hippo tusk. A man was seated on the carapace of a turtle.

The most poignant scene was the triple burial of a petite woman lying on her side, facing two young children. The slender arms of the children reached out to the woman in an everlasting embrace. Pollen indicated that flowers had decorated the grave.

ALB

Who Owns Thomas Jefferson's Grave?

This ranks right up there with "Who's Buried in Grants Tomb?"  In light of the controversy over access to Jefferson's grave, which I've been following and gotten involved in a little bit, I now have a question
that's worthy of a final examination in wills.  First, some background on this.

In a post over at Oxford University Press' blog about access to Jefferson's grave, I wrote, following a New York Times story, that the cemetery is owned by some of Jefferson's heirs.  In a comment to the post, the current president of the Monticello Association (which manages the cemetery) says, the cemetery's owned by all of Jefferson's descendants.  ("The Graveyard is not owned by SOME of the descendants of Thomas Jefferson, but by ALL of the descendants of Thomas Jefferson.")  The truth of that turns on a couple of things, apparently, including whether the issue of Sally Hemings are also the issue of Thomas Jefferson.

And it also turns on a reservation of the graveyard way back in the 1830s when Monticello was sold out  by Jefferson's family.  So let's look a little more deeply at this puzzle.  Apparently the last recorded reference to the cemetery in a deed was when Monticello was sold in the 1830s.  At that point, the family of Thomas Jefferson Randolph reserved the cemetery:  "The parties reserve to themselves the family graveyard with free access to the same."  Nice!  This is an explicit reservation of what is an implied right of access in Virginia and a bunch of other states, too.  There is also an explicit reservation of the title to the cemetery.

The Monticello Association reports on their website that Thomas Jefferson Randolph's mother's will in 1836 left the residuary of her property to Thomas Jefferson Randolph and that Randolph's will failed to dispose of the property (so it presumably went, through partial intestatacy, to Randolph's heirs).  As the Monticello Association website points out:

It was under this last clause that the graveyard became the property of Thomas Jefferson Randolph when his mother died on October 10, 1836. ...

Thomas Jefferson Randolph died October 8, 1875, and was buried in the little plot laid out a hundred and two years before, and where there now existed nearly fifty graves. In his will, dated January 24, 1875, he made a number of specific bequests of silver, portraits, and certain items which had belonged to Mr. Jefferson, and then he provided carefully and explicitly for his unmarried and widowed daughters in his bequest to them of Edgehill and of its adjoining lands. However, he made no mention of the Monticello graveyard, which he had inherited from his mother. Thus it became the undivided property of all heirs, and so it remains. This divided ownership contributed in part to the difficulties faced by the family within a few years, when Congress responded to the increasing public concern about the deplorable conditions at Monticello.

One question here, which will be easily answered when someone looks at T.J. Randolph's will: wasn't there a residuary clause?  The Monticello Association website implies not (or if there was that it distributed the property to all his heirs, by which I think they them mean his issue).  If there was no residuary clause, then I guess that the cemetery descended to T.J. Randolph's issue and now, many generations later, they own in varying shares the property.  (This is implied in this 1882 New York Times story as well.)

The Monticello Association--a 501(c)(3) association--is currently managing the gravesite.  So I'm curious what their relationship to the cemetery is.  Have all the heirs given them the authority to manage the graveyard?  I'm guessing that there may be a deed to the Jefferson descendants somewhere and that the Association is the representative of the descendants.  But what happens when other putative descendants (like the issue of Jefferson and Hemings) appear?  They wouldn't take as heirs of T.J. Randolph (and presumably wouldn't have the right to be buried in the cemetery); but they still have the right to visit the cemetery under the Virginia cemetery access statute.  Makes for some mighty interesting questions in cemetery law.

But then a google led to this story from the New York Times in 1911, which alludes to another grant.

The public domain image of Thomas Jefferson's grave is from wikipedia.

Alfred Brophy

The Governance of Gramercy Park

This morning's New York Times brings a story about the governance of Gramercy Park--which is so strict that few people use it.  Shades of Poe's The Domain of Arnheim?!  Ah, what would Thomas Jefferson have to say about this (or here)?

The public domain image of Gramercy Park is from our friends at wikipedia.

Alfred Brophy

Cemetery Law: The Reburial of Mark Rothko?

Close on the heals of the New York Times' discussion of a conflict over Thomas Jefferson's grave, (which I discussed here) we have news of a dispute over the possible exhumation and reburial of Mark Rothko.

Kathryn Shattuck's article begins:

For 38 years the body of the artist Mark Rothko has rested in an unassuming cemetery on the North Fork of Long Island, a quiet reminder of both the Abstract Expressionist legacy and one of the harshest legal battles ever to rock the art world.

Now, in a potential addendum to the history books that threatens to resurrect bitter memories of the long fight over Rothko’s estate, the artist’s daughter and son have petitioned a New York State judge to clear the way to have their father’s remains disinterred and reburied in a Jewish cemetery in Westchester County.

Endnote: Rothko's 1952 No.10 is from the National Galley's website; the painting is in the collection of the Museum of Modern Art.

Alfred Brophy

Solar Panels vs. Trees!

The New York Times this morning has a fascinating story about two neighbors, eight redwood trees, a solar panel, and - yes - a criminal prosecution for violating a statute called the Solar Shade Act.  This has it all:  a parable of first-in-time vs. solar access, failure of bargaining, nuisance and conflicts between two environmental goals, and, perhaps, the law of unintended consequences.  Great reading!

Nestor Davidson

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More cemetery law: Thomas Jefferson's Grave

Today's New York Times brings this story ("Atop a Hallowed Mountain, Small Steps Toward Healing,") about the Jefferson family cemetery.  It is "owned by the lineal descendants of Thomas Jefferson. Last year about 250 people with ancestral ties to Monticello — including descendants of Jefferson and Sally Hemings, a slave — met at the homestead for a reunion of sorts, but they were not allowed into the graveyard."

A few excerpts from the story:

Halfway down the mountain sits the Jefferson family cemetery, owned by the lineal descendants of Thomas Jefferson and overseen by the Monticello Association, which is made up of some of those descendants. Proud names call from tombstones behind the locked gates: Randolph, Taylor, Eppes, Coolidge. But no Hemings. ...

In 2002 the association voted overwhelmingly not to extend membership to the descendants of Sally Hemings, arguing that some scholars had found insufficient evidence of a Thomas Jefferson blood connection but inviting them to apply again should further evidence surface. That vote led to charges of racism, denials of racism — a kind of family quarrel.

Still, relationships have developed. Last year about 250 people with ancestral ties to Monticello — including some Hemings and Jefferson descendants — met at the homestead for a reunion of sorts that was rooted in the belief that community transcends bloodlines.

Before the gathering, one of its organizers, a descendant of Jefferson named Prinny Anderson, attended a meeting of the Monticello Association, of which she is a member, to ask whether those coming for the event might be allowed inside the Jefferson graveyard. Ms. Anderson, of Durham, N.C., says she made no mention of Hemings, “although that was the elephant in the room.”

Her request was overwhelmingly denied, she recalls, on the grounds that “it would damage the grass. And I say that with a straight face.”

Steve Moyer, another Jefferson descendant and the president of the Monticello Association, confirms that grass was a central concern, though other worries included the fragility of tombstones. The grass had taken years to grow, he says, and to have 250 people tromping through there in hot and dry July was “the last thing we needed.”

....

Sounds like a perfect application of cemetery law.  You may recall that Virginia has a particularly generous cemetery visitation statute.  It provides for broad rights of access by relatives of the decedent and researchers:

A. Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves by (i) family members and descendants of deceased persons buried there; (ii) any cemetery plot owner; (iii) any person engaging in genealogy research, who has given reasonable notice to the owner of record or to the occupant of the property or both.  The landowner may designate the frequency of access, hours and duration of the access and the access route if no traditional access route is obviously visible by view of the property.  The landowner, in the absence of gross negligence or willful misconduct, shall be immune from liability in any civil suit, claim, action, or cause of action arising out of the access granted pursuant to this section.

B. The right of ingress and egress granted to persons specified in subsection A shall be reasonable and limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research.  The right of ingress and egress shall not be construed to provide a right to operate motor vehicles on the property for accessing a cemetery or gravesite unless there is a road or adequate right-of-way that permits access by motor vehicle and the owner has given written permission to use the road or right-of-way of necessity. . . .

Va. Code Ann.§ 57.27.1 (1993).

Want to know more about the ancient rights of the graveyard?  Check out this paper, which, by the way, talks about descendants of enslaved people seeking to visit the graves of their ancestors.

Anyone want to hazard a guess what our friend Mr. Jefferson would say about this?  Perhaps something akin to what he said about the Natural Bridge--that the bridge is a public trust.  Perhaps he'd consider his grave a public trust as well....

Update:  I have a fuller discussion of this over at Oxford University Press' blog.

Endnote: I couldn't find a public domain image of the Jefferson family cemetery, so I used a wikipedia image of Monticello instead.

Alfred Brophy

Subprime Lawsuits by Cleveland and Baltimore

I've been thinking about the nuisance lawsuit that Cleveland filed against a series of subprime lenders and the Baltimore lawsuit filed about Wells Fargo, based on the Fair Housing Act.  Wall Street Journal Blog talks about them here, as have a bunch of other bloggers.

Both complaints are heavy on narratives about how subprime lending works.  The Baltimore complaint hypothesizes Wells Fargo targeted African American borrowers for subprime loans (what some call "reverse redlining"), with exorbitant origination fees and unrealistic promises of refinancing on favorable terms later.  The complaint has a series of maps, detailing residential segregation and foreclosure.  The results are pretty stark, but we're still a ways from showing that the disproportionate impact is the result of discrimination.  I'm most interested in seeing how this plays out.

Alfred Brophy

Cultural Property Dispute Between Sweden and ...

Amidst all of the earth-shaking news about the governor of New York, it's easy to miss this: today's New York Times brings news of a dispute over 350 year old spoils of war captured by Sweden from Denmark--but in a twist of fate, that section of Denmark is now part of Sweden.  The story begins:

It’s hard to find anyplace in Europe today, even here in peaceable Sweden, where people aren’t squabbling over cultural property and the spoils of war. For some time, it turns out, a handful of nationalist Danes have been loudly barking about booty that the Swedes nabbed 350 years ago in a war with Denmark. The cache includes an ornate canopy from Kronborg Castle, of Hamlet lore, and recently people in Skane, a region in the south of Sweden that was ceded by Denmark in 1658 after losing the war, said they wanted the canopy handed over.
...

[I]nto the 18th century, as the show recounts, Sweden stocked its libraries and museums and churches with stolen arms, books, altarpieces, textiles and art by painters like Titian and Tintoretto, Dürer and Archimboldo. Much of this loot was pinched from Poland and Lithuania. The show argues that this was the custom of the day and that the best thing now is simply to lay everything on the table for all the world to see. But the clock can’t be turned back.

Not until the Congress of Vienna in 1815 (notice how that date falls after Sweden’s empire collapsed, a happy coincidence, no doubt) did countries in Europe generally agree that taking booty was a war crime. So there’s a cut-off date, a legal line in the sand.

Lot to talk about here.

ALB

Oust Tenants, Convert to Condo

The Washington Post has a lengthy story on a loop-hole in a DC statute that limits the conversion of apartments to condos: if there are no tenants, you don't need their permission to convert.

Here's a taste of the article:

In the past four years, landlords emptied more than 200 buildings from Columbia Heights to Southeast, most of them rent-controlled, thwarting the intent of one of the nation's toughest tenant rights laws with the approval of the city government, a Washington Post investigation found. ...

Nearly three decades ago, city leaders created a law that gave tenants extraordinary power: the right to vote on whether property owners could convert rental buildings into condominiums. The law also requires owners to pay the city a fee on the sale of new condominiums, which would help displaced renters with relocation costs.

But as the District's real estate market thrived, landlords found a way out: The law doesn't apply to vacant buildings.

By emptying buildings and taking advantage of a provision known as a "vacancy exemption," landlords can avoid the tenant vote and the tax and turn rental apartments into condominiums. City officials have granted the exemptions even when government records chronicled widespread evictions and buildings riddled with code violations.

ALB

South Carolina Monument In Hamburg

Thanks to Ann Bartow for a pointer to this story from the South Carolina newspaper The State on the Hamburg, South Carolina massacre of 1876 and the monument that's already there--as well as efforts at historical preservation in Hamburg.  Here's a taste of the story:

The town of Hamburg, a tiny community of freed slaves that existed after the Civil War, has all but disappeared from South Carolina’s history.

But the impact of the massacre that happened here in 1876 along the Savannah River marked a turning point in S.C. race relations for generations.

The Hamburg Massacre, where white militia executed five black men without trial, launched a new beginning for white supremacy in South Carolina. ...

Today, expensive homes and an 18-hole golf course line the river bank where Hamburg once stood.

“It’s so eerie. Not only has the history of this place vanished, but the memory has vanished, too,” said historian Stephen Budiansky, who chronicles the Hamburg Massacre in his just-published book, ”The Bloody Shirt.” “Even the physical remains are gone.”

ALB

Monumental Silence in Spain

Continuing with our occasional theme of monument law (and thanks to a pointer from Carl Christensen), here's a New York Times story on Spain's recent actions regarding monuments to Franco and the Spanish Civil War.  The article begins:

Last month Spain passed a law that doesn’t make much sense, on its face, but says quite a lot about Europe in the new century.

The Parliament, fulfilling a campaign promise from 2004 by Prime Minister José Luis Rodríguez Zapatero, ordered that families wanting to unearth bodies of relatives killed during the Spanish Civil War of the late 1930s or who suffered as a political consequence of General Francisco Franco’s four-decade-long regime should get full cooperation from the state, and at the same time that every province in the country must remove remaining monuments to Franco.

The public domain image is of the Valle de los Caídos (the Valley of the Fallen), which Franco ordered built as a monument to those who died in the Civil War.  As the Times article describes the monument, "During the 1950s thousands of prison laborers tunneled hundreds of yards into a solid granite mountain ridge to build one of the world’s biggest and most lugubrious basilicas and a Civil War memorial, beneath a cross nearly 50 stories high."  It is considered to be mostly a monument to the Nationalists; however, some Republicans are buried in the valley.  It is from our friends as wikipedia.

Al Brophy
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Somin on Jane Austen, Property Exams, and Literature

Ilya Somin over at volokh, a common source of great discussions here at propertyprof, is talking now about a final exam question based on Jane Austen's Pride and Prejudice.  He concludes with this statement, which warms the heart of this propertyprof:

I'm not going to argue that an understanding of property law is essential to your appreciation of Jane Austen and her work. But it can certainly help! Indeed, property law is probably second only to criminal law as a legal influence on great literature. Yet another reason to study Property (not that we need any more:))! You don't see too many great novels that feature legal issues in corporate law or civil procedure.

Since this is the seasons of exams, I'm inclined to say discuss!  Perhaps I'll start this off with the area I know best--antebellum United States literature.  Certainly a lot of property in there--from Stowe's obscure short story "Love versus Law," to Uncle Tom's Cabin, James Fenimore Cooper's Home as Found and his anti-rent trilogy, to one of my new favorites, Beverly Tucker's George Balcombe.  But I'm sure our friends about at the Conglomerate would want us to remember Theodore Dreiser's The Octopus....

Al Brophy
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Who Owns The Declaration of Independence

Thanks to University of Hawaii Professor Carl Christensen for calling Abbey Goodnough's article " A Tug of War Over a Declaration of Independence" from today's New York Times to our attention.  The article is about the efforts of the state of Maine to recover one of very few surviving copies of the Declaration of Independence.  As near as anyone can tell, the copy seems to have been read by a minister in Wiscasset, Maine, then given by the minister to the town.  And somewhere along the line, the town's records were stored in Anna Plumstead's attic.

After Ms. Plumstead died in 1994, the document was sold at an estate auction. It changed hands several times, ending up with a private collector in Virginia who paid $475,000 for it in 2001. Now Maine is seeking to reclaim it, citing a state statute that says a public document remains public until explicitly relinquished by the government.

Now that sounds like the makings of a final exam question for property!

Endnote: I'd like to use the New York Times' image of the document, printed in 1776 in Salem.  Alas, I suspect that image is copyrighted.  (And here at propertyprof we're appropriately cautious about using other people's images.)  There's something unnerving about a copyright on the Declaration of Independence, it seems to me.  And this takes me back to a debate in Philadelphia my senior year in college about charging admission to Independence National Park in downtown Philly.  Fortunately, that proposal was defeated.  So instead I'm using an image of George Washington's personal copy of the Declaration, from our friends at the Library of Congress.

Alfred L. Brophy
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Vietnam Veterans' Memorial: Memory, Honor, and Interpretation

Today is monument day at propertyprof.  A reader sent this story from USA Today along about a proposed underground “center” beside the memorial wall that would inform visitors about the war.

Propertyprof readers may be interested in this excerpt, touching on a function of monuments and their difference with museums:

Judy Scott Feldman of the National Coalition to Save Our Mall says the center would set a precedent that would encourage other groups to push for interpretive adjuncts to their monuments. "We are mistaking the power of our memorials with the educational value of our museums."

The public domain image of the Vietnam Veterans Memorial is from our friends at Wikipedia.

Alfred L. Brophy
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Naming rights: University of California--Irvine

Been reading (thanks to Brian Leiter) about the University of California-Irvine's Donald Bren School of Law.  Among the interesting aspects of Bren's agreement with the school is this:

Signs on law school buildings must read "Donald Bren School of Law" and be at least twice the size of the building name. Bren's must be the largest and most prominently displayed name on the building, according to the agreement.

I take it that is enforced as a contract, rather than as an affirmative covenant.

Al Brophy
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More Monuments: Repairing or Replacing the Tomb of the Unknown Soldier

In honor of Veterans Day, the New York Times has a video about the dispute over cracks in the marble at the tomb of the Unknown Soldier.  Should the marble, whose cracks have been steadily growing larger, be repaired or replaced?  This is yet another example of the controversies over monuments and their meanings.

Image: The panoramic of Missouri Gold Star mothers meeting with General Pershing at the Tomb of the Unknown Solider in 1930 is from our friends at the Library of Congress.

Alfred L. Brophy
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Making Apartments Smoke Free: Erosion of Private Property Rights?

The New York Times today reported that an increasing number of U.S. cities have enacted legislation restricting the ability of residents in multi-unit residential buildings to smoke inside their apartments. (It also discussed increased anti-smoking restrictions in public housing units.)

Both public and private efforts to restrict smoking inside these residential buildings seek to minimize the effects of secondhand smoking and protect the rights of residents (who are against smoking) to enjoy their property.  Their efforts, however, consequently impact the rights of property owners.   Although there are private real estate companies that have adopted smoke-free policies in their apartments, others in the real estate industry have complained that smoke-free legislation constitutes "an erosion on private property rights."

In at least one case last year, residents prevailed in a non-payment of rent dispute after they left their apartment because the owner and the building management failed to address their complaints about their neighbor's smoking.  Apparently, secondhand smoke began seeping into their unit. The judge explained that, "secondhand smoke can constitute a breach of the warranty of habitability because under [New York]’s Real Property Law, every written and oral lease contains an implicit warranty that the premises are fit for human habitation and that tenants cannot be subjected to any conditions detrimental to life, health or safety."

Rose Cuison Villazor

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Providing Homeless People Places to Sleep

I recently taught in my Property I class laws that restrict the ability of homeless people to sleep in public places. I use Joe Singer's casebook, which devotes a small section on the "right to be somewhere and the problem of homelessness" (pages 173-176). That section in particular examined Pottinger v. City of Miami, which resulted in, among other things, the creation of "safe zones" for homeless people because they had no alternative shelter.

The class discussion we had about the tension between the right to exclude versus the right of access in the context of the problem of homelessness was one of the best discussions we've had so far this semester. Many students were bothered by the criminalization of being homeless as a result of local ordinances that prohibit acts such as sleeping in public. These students believe that homeless people should continue to have a right of access to public areas, at least for purposes of sleeping.

Today, the NY Times reported that the City of Los Angeles has decided to settle a case brought by the ACLU against the enforcement of the city's ordinance that makes sitting or sleeping on the streets illegal. The 9th Circuit held in Jones v. the City of Los Angeles in April 2006 that enforcement of the ordinance is tantamount to cruel and unusual punishment. The recently agreeed settlement reached between the city and the ACLU resulted not only in the decision by the city to not appeal the 9th Circuit case's opinion but also the provision of 1,250 low-income housing units.

In my local area (Dallas, TX), a local church has decided to open up its parking lot to homeless people as a place for them to sleep at night (see here for story). Their move has generated complaints from nearby business owners who have said that the presence of homeless people have driven away customers. This conflict raises yet another tension within our private property system - the privilege to use one's property versus the recognition that we can't use our property in ways harmful to our neighbors (again, another theme from the Singer casebook). Until adequate shelter and other services are provided to homeless people, the inherent tensions within our property system will continue to manifest in various ways.

Rose Cuison Villazor

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Civil Rights History in Tuscaloosa News

Dedicated propertyprof readers will recall that I sometimes discuss charming stories related to property in my hometown paper, the Tuscaloosa News.  Although this is more about civil rights history than property, I thought that you might enjoy this story about one of our local heroes, Thomas Linton, who is a Presbyterian minister and a barber.  Here are some key excerpts:

The spirit of Linton's message at the Church of the Lord Jesus Christ on 35th Avenue in west Tuscaloosa thrives at his shop. No risque magazines make it to the table, no one smokes at the shop and a religious show flashes on the TV most days.

As a minister and owner of Howard's and Linton's Barbershop on T.Y. Rogers Jr. Avenue, he led much of the civil rights struggle in the 1950s and '60s fought on that street. He helped form the ministerial alliance with the Rev. T.Y. Rogers Jr., for whom the historical block was renamed, and led mass meetings at the First African Baptist Church that was bombed with tear gas June 9, 1964. After that, Linton persuaded the city's white leaders to hire blacks as clerks and cashiers for the first time in stores outside the black district. ...

Civil rights turbulence of the mid 1950s was starting when John Linton shined shoes as a 14-year-old at his brother's barbershop. Then, a sign still stood on the U.S. Highway 82 roadside touting Tuscaloosa as the home of Robert Shelton, imperial wizard of the Ku Klux Klan.

"I was a kid when Authurine Lucy tried to attend the University of Alabama," John Linton said in telephone interview from his home. "It was an outrage."

That February day in 1956 when Authurine Foster Lucy was suspended from the university, whites pelted her with eggs and state troopers escorted her to the black-owned newspaper, The Alabama Citizen, where a throng of more than 300 gathered. The paper was two shops away from the barber and then-beauty shop.

Robert Wade, 87, ran the linotype machine at the black newspaper. He recalled his indignation of that day.

"I had lost three brothers in World War II," said Wade, owner of a Tuscaloosa print shop. "I couldn't understand why blacks could serve their country but weren't accepted at a university."

Thomas Linton said that Lucy sought refuge in the barbershop, where beauticians helped her wash off the mess.

"It was a gathering place," John Linton said. "I saw some tremendous things happen there when I was a kid." ...

Union Morrow, a 70-year-old brick layer and Tuscaloosa resident, has barbered with Linton for 59 years. They grew up chopping cotton together on their family's small farms in Mantua, in Greene County. Linton's fortitude made a difference to him.

"I always wanted to emulate him because he was a model," said Morrow, who still lays brick and taught the craft at Fredd and Shelton State community colleges. "He was instrumental in change. He was a peaceable, very religious and down-to-earth person. He had a great conviction that everyone should be treated fairly."

Next time you're in Tuscaloosa, you really need to eat at Maggie's Diner, which is just down the block from Howard's and Linton's Barbershop.

Alfred L. Brophy
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Hillary Clinton's Senior Thesis

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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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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Two Revealing Stories on Libraries and One on Peer Review

Moved up to September 21 because of the update below, which includes a link to a Times story which links to the books on the Bureau of Prison's approved list.

Been absurdly busy of late--teaching wills and trusts (the Christopher Benoit story makes for engaging class discussion on the Georgia slayer statute and it's a lot more complex that you'd think at first) and desperately trying to finish up papers on Thomas Dew and on Thomas Ruffin--so much so that I didn't realize until I got home last night that legal education was rocked by the story of UC Irvine's appalling mistreatment of superstar Erwin Chemerinsky (great commentary on this by Trina Jones).  This is sort of like 2003 when I was so consumed with work that I missed the story of the Space Shuttle Columbia disaster.

I must, though, notice two stories on libraries.  The first, sent to me by my favorite librarian, from the New York Times tells of the Bureau of Prison's recent decision to limit religious books in prison libraries to ones on an approved list.  Another shocking move (if true), but also one that reveals just how much we think ideas in books matter.  (Close readers of the legal blogosphere will recall that I'm interested in prison libraries as an indicator of ideas of prisoners.)  All of this is further evidence of the importance of the history of the book project.  Second, one from my hometown paper about a patron's removal of a book from a high school library.  Ditto to the last comment.

And now, thanks to Dan Solove's pointer, I see superstar historian David Oshinsky's story on the Alfred Knopf archives.  It contains decades of reader reports for Knopf and rejection letters.  Included among the reader reports, something on Jack Kerouac--“His frenetic and scrambling prose perfectly express the feverish travels of the Beat Generation. But is that enough? I don’t think so.”  Well, something else to think about as I work away (rather slowly) on hippie jurisprudence.

UPDATE:  A propertyprof reader was kind enough to alert me to this New York Times article, which provides links to the Bureau of Prison's list of approved books on religion.  Mighty, mighty interesting stuff.

Al Brophy
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Machu Picchu Artifacts Headed Back to Peru

We've been following this one for a while and here.  Now the New York Times is reporting (thanks to Carl Christensen of the University of Hawaii Law School for bringing this to our attention) that Yale and Peru have reached an agreement to repatriate some Machu Picchu artifacts that were brought to New Haven by Hirman Bingham.  Highlights from the story:

For several years Yale had argued that it had returned all borrowed objects in the 1920s, retaining only those to which it had full title. Yale proposed dividing possession of the artifacts. But negotiations between the university and the administration of President Alejandro Toledo, who was in power from 2001 until July 2006, broke down, and Peru threatened last year to go to court.

On Friday night Yale officials and a Peruvian delegation that traveled to New Haven signed a preliminary agreement that would return title to Peru of more than 350 artifacts — ceramics and metal and stone objects — that are considered to be of museum quality and several thousand fragments, bones and other objects considered to be primarily of interest to researchers.

The agreement, which establishes an extensive collaborative relationship between Yale and Peru, provides for an international traveling exhibition. Admission fees will be used to help build a new museum and research center in Cuzco, the city closest to Machu Picchu. The museum, for which Yale will serve as adviser, is expected to be completed in 2010....

The objects were excavated almost a century ago by Hiram Bingham III, a charismatic professor, aviator and later senator who is credited with the modern discovery of Machu Picchu, which he stumbled upon while looking for another archaeological site. Before his arrival the Inca complex had been known to only a few local farmers around Cuzco. Bingham struck deals with the government at the time to allow him to send objects back to Yale that he had excavated from about 170 tombs at the site.

Dedicated propertyprof readers will recall that we've much interested in Hiram Bingham's grandfather's writings about early Hawaii's property law.

Much to talk about here; shades of the Elgin Marbles and of Imperialism, Art, and Restitution.  The public domain image of Machu Picchu is from our friends at wikipedia.

Oh, and happy 220th anniversary of the Constitution, too!

Alfred L. Brophy
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Cemetery Law in the News

Thanks to Carl Christensen for two recent news stories on cemetery law.  First, one on relocating graves for the expansion of O'Hare Airport.  Second, one on the latest on the Whole Foods construction on Oahu.  From the Honolulu Star Bulletin article (linked to above):

Work on the planned Whole Foods Market store in Kakaako has stopped again after the discovery of still more remains at the construction site, bringing the count to 58.

The Native Hawaiian Legal Corp., meanwhile, filed a motion seeking a temporary restraining order yesterday on behalf of cultural descendant Paulette Kaleikini to stop the removal of any more human remains from the redevelopment site.

In the motion, NHLC attorney Moses Haia asks that, in light of the additional finds, construction be halted at the entire Ward Village redevelopment site.

Propertyprof readers will recall that we've been following this story for a while.  The image of Kakaako from the 1920s is from the University of Hawaii's Center for Oral History.

Al Brophy
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or

Gee's Bend: Quilt Lawsuit and Library of Congress Photos

So the lawsuit by a couple of Gee's Bend artists has hit the New York Times.  Not often that rural Alabama lawsuits make it that far, which is reason enough for propertyprof to take notice. This will be a great topic of discussion in my trust class this fall.  Sounds like the collective of quilters has some pretty interesting arrangements:

The quilters’ collective, an informal group of about 40 members, pays $150 a month to rent a former day care center marked by a small, hand-painted sign, where one room is stacked floor to ceiling with quilts. Small quilts go for $200 to $1,000, while bed-sized ones are priced at $950 to $7,500.

When a sale is made, half the money goes to the quilter and half to the collective, which periodically disburses dividends to all members. Royalties from reproductions of the quilts go into the foundation, which now contains $147,000. The system was designed to forestall jealousy, protect elderly quilters who can no longer sew, and acknowledge the interdependent nature of the community, where many quilters are related and styles were handed down from mother to daughter.

This'll generate some great discussion, I am sure.  And we never want to miss an opportunity to present some lovely photographs from our friends at the Library of Congress, taken by Arthur Rothstein in 1937, including a photograph of three quilters (at right).

Update: Our friends over at blackthreads and at the art law blog are talking about the story as well.  Here's Auburn University's website on the Quilts of Gee's Bend.

Alfred L. Brophy
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New Jersey Supreme Court sides with Homeowners Association

Well, this result was predictable.  Yesterday the New Jersey Supreme Court issued a decision in Committee for a Better Twin Rivers v. Twin Rivers' Homeowners Association.  It held that the Twin Rivers' Homeowners Associations rules regulating political speech on private property do not interfere with New Jersey's constitutional guarantee of free expression.

This article quotes Rutgers Law prof Frank Askin (counsel in the case) that it signals that the New Jersey Supreme Court is  "pulling back from their stance in taking the lead in extending rights under the state constitution."

Here's a link to WBUR's The Connection show on the case from August 2002.  It's a great show--I highly recommend it.  And here's the Twin Rivers' Community Association webpage--makes for so good discussion in class.

Thanks to our friends at concurring opinions for this news.

Alfred L. Brophy
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More on Statues and Monuments: Roger Taney and the Dred Scott Decision

As I am working on my paper on Thomas Ruffin's moral philosophy, "Dealing with the Sins of the Forefathers" from the Washington Post on arrived in my in box.  (Thanks to Peter Storandt.)  The story arises from a controversy in Maryland right now, where some want to remove a bronze image of Chief Justice Roger Taney from the State House in Annapolis and other from the Federick City Hall.  The story quotes descendants of both Scott and Taney--Dred Scott Madison II and J. Charles Taney:

"If we want to get into the business of taking down statues of founding fathers who were flawed, we're going to have to get to a lot of people," Taney, 60, said in an interview from his home in Connecticut. "All of the men of the South -- Jefferson, Washington -- all were flawed in this regard."

From his home in Texas, Madison, 48, agreed. "Someone's statue? If you move it, where do you end? Do you go down South and start removing all of the statues of Confederate officers? It's part of American history. You can't hide it."...

Mighty interesting story, which touches on central issues of monument law.  Harvard Law School has already dealt with some of this:

"It was a profoundly disturbing decision that literally ripped a nation in half," said Harvard law professor Charles J. Ogletree, who noted that his school removed a painting of Taney from its library in 1992. "It's no surprise that some of the current thinking is that it is not only inappropriate to celebrate him but that any recognition of Taney as anything other than a blight on the federal judiciary is unacceptable."

I have a few thoughts on Dred Scott as a site of reparations talk in this paper.

Alfred L. Brophy
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Sitting Bull's Gravesite

While I've been away, much has happened--including the New York Times story last week on the conflict between family cemeteries and housing development in Georgia and a story about Sitting Bull's grave, which some want to turn into a commercial area.

Erin McClam's very fine story for the Associated Press begins in this way:

Drive from the town of Mobridge west across the Missouri River, clatter four miles down a winding path, and you find it — a modest monument on a lush green bluff.

This simplicity is striking because of the complex history of what lies beneath: The remains of Sitting Bull, the Sioux chief said to have foretold the defeat of Lt. Col. George Custer at the Battle of Little Bighorn in 1876.

It is more striking because of the state of extreme disrepair that befell the resting place of one of the best-known American Indians for half a century, until just two years ago.

It was shot and spat at. On the surrounding grounds bonfires burned and shattered beer bottles glittered. Someone tied a rope around the feather rising from the head of the bust, rigged it to a truck and broke it off.

The site is on what is called fee land, within the boundaries of the Standing Rock Sioux tribe but privately owned, and two years ago two men paid $55,000 for it and began cleaning it up.

They have plans for a $12 million monument complex they hope will honor Sitting Bull’s memory with the dignity missing for so long, and let new generations learn about him.

           These plans have torn open a wound over who will control the great chief’s legacy.

Read the rest of the story here.

Endnotes: The image of Sitting Bull is from our friends at the Library Congress.  And while I was looking for suitable pictures, I came across Phil Konstantin's website with a bunch of pictures of memorials and gravesites. 

Alfred L. Brophy
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Cemeteries and Development

Thanks to Carl Christensen for this story from the New York Times , "New Homes Confront Old Burial Grounds."  The article begins:

DAC ENTERPRISES, a small, mostly residential developer in Georgia, bought about 118 acres in Hall County, just south of the city of Lula, with the idea of selling lots to builders to put up single-family houses. The transaction, which was completed in 2004, seemed routine for the fast-growing exurb, 50 miles northeast of Atlanta.

But it turned out that the developer was in for a surprise — one that he says cost him about $40,000. In one patch of the land, hiding beneath bushes and trees, was a cemetery — 22 graves dating to the mid-19th century, including one for Neverson Cook, a veteran of the War of 1812. Only two were marked with inscribed stones.

“We did not know it was on the property when we bought it,” said Ray W. Gunnin Sr., the president of DAC.

His company hired an archaeologist to determine the number of graves there and the precise boundaries of the cemetery. Mr. Gunnin said the cemetery was cleaned up and a chain-link fence erected — not a legal requirement, but out of respect for the dead. “We didn’t want people riding bicycles and things like that across the cemetery,” he said.

He estimated his company had spent more than $5,000 to define and fence off the graves, which are now neighbors of around 70 new homes — and said he lost $35,000 because he could not sell the cemetery space, which is on a “nice little knoll that would have been a choice building lot.”

Of course, the neighboring lots may sell for more (because they're further from the neighbors).

Yet another example of the importance of cemetery law.

Alfred L. Brophy

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Monuments and Slavery in Washington's Philadelphia

Thanks to Ann Bartow for pointing out this story on a passage-way that archeologists have found during excavation of George Washington's house in Philadelphia.  They speculate that slaves used it to enter the house.  As the AP story reports:

The underground passageway is just steps from the Liberty Bell and Independence Hall. It was designed so Washington's guests would not see slaves as they slipped in and out of the main house.

There's a controversy (or at least discussion) about what to do with this new find--fill it in or preserve it:

The findings have created a quandary for National Park Service and city officials planning an exhibit at the house. They are now trying to decide whether to incorporate the remains into the exhibit or go forward with plans to fill in the ruins and build an abstract display about life in the house.

This is the second time this year we've spoken about property-related issues and slavery in Philadelphia.

Much more on the house is available here.

Al Brophy

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Data Mining, Pharmaceutical Style

Tuesday’s Washington Post had an interesting article discussing a recent decision by U.S. District Judge Paul Barbadoro involving a New Hampshire statute designed to limit the ability of the pharmaceutical industry to obtain information regarding the actions of prescribing physicians. According to the article, drugmakers contract with data-mining companies to obtain information from retail pharmacies allowing the pharmaceutical companies to determine which physicians are issuing prescriptions for their products and, perhaps even more importantly, for competing products. Although the identities of individual patients are protected, the identities of the individual prescribing physicians are revealed to the drug manufacturers, who then use this information to more precisely target their marketing efforts at those individual physicians. Some doctors object to the use of this information on privacy grounds, while others charge that “using such detailed data for drug marketing serves mainly to influence physicians to prescribe more expensive medicines, not necessarily to provide the best treatment.” Judge Barbadoro held the statute to be an unlawful restriction on constitutionally protected commercial speech.

 A quick computer search reveals the case to be IMS Health Inc. v. Ayotte, ___ F. Supp. 2d ___, 2007 WL 1244077 (D. N.H. April 30, 2007). The court described the statute as “expressly prohibit[ing] the transmission or use of both patient-identifiable data and prescriber-identifiable data for certain commercial uses.” Rejecting the state’s arguments that the statute was a permissible restriction on commercial speech that was “carefully crafted to directly serve the State’s substantial interests in protecting prescriber privacy, promoting public health, and controlling health care costs,” the court held that the statute imposed an unlawful restriction on constitutionally protected commercial speech.

This would be a straight constitutional law case of little or no interest to property profs were it not for the court’s brief mention of testimony by a government official that “commercial use of this information violates prescribers’ ‘trade secrets.’” The defendant State official waived this argument, however, so the question of whether such data are (or could be) intellectual property protected from public disclosure as trade secret information remains undecided.

It is essential to the data-miners’ business plan that the information they gather and transmit is the property of the individual pharmacy and that the pharmacies are free to sell this information to the data-miners and, ultimately, to the drugmakers. Even if the argument that this information is instead the intellectual property of the prescribing physicians may not have been tenable under the current state of New Hampshire property law, a matter not decided in IMS Health, it is interesting to speculate about the effect of a state (or perhaps federal) statute declaring (with prospective effect, to avoid Takings problems) that henceforth ownership of information regarding prescriptions filled within the relevant jurisdiction would rest with the prescribing doctor, who would be free to reveal or withhold it as he or she saw fit. Would such a statute avoid the Free Speech issue on which New Hampshire’s statute foundered without running afoul of some other constitutional hazard?

Carl Christensen
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ABA's Proposed Interpretation of its Standards for Accreditation

Thanks to a letter that Professor Gary Rosin of South Texas is circulating (available here), I learned that the ABA is considering what appears to be a pretty important change in its standards for accreditation.  Rosin, you may recall, is the author of an important study on what affects student bar pass rates (including, of course, students' entering credentials).

Standard 301(a) now states that "a law school shall maintain an educational program that prepares its students for admission to the bar."  The proposed interpretation (301-6) would "formalize and clarify the approach taken by the Accreditation Committee in reviewing bar passage data from law schools."

The proposed interpretation provides, among other things that:

If data demonstrate to the Accreditation Committee that the school's first-time bar passage rates frequently are seventy percent or below, the school shall be asked to provide additional data in order to demonstrate compliance with the Standards.

Professor Rosin describes the proposal as establishing "a flat 70% law school [bar pass rate] as prima facie evidence of minimum satisfactory performance of a law school’s academic program."  He points out, quite appropriately, that this discriminates against schools that are in jurisdictions that require high bar pass scores.  (The ABA, as mentioned above, maintains it is already following this practice.)  I'll be interested in hearing where all this goes.  Apparently, there was a public hearing on this in San Francisco today.

I have written about bar pass rates a little in the past over at money-law (including some in response to Bill Henderson's post).  I haven't seen much discussion of this, though RattlerNation has some more details.

Alfred L. Brophy
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