Tuesday, May 10, 2016

Kids Learn the Darndest Things About Property Law

I am in recovery.

Recovery from spending two back-to-back weekends chaperoning eight-year-old girl sleepovers.

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During the last weekend of April, I took my daughter and her Brownie Troop camping. Sure, thirteen little ones look cute standing on the dock making funny faces after fishing, but at 3pm when the heavens open and you are standing amid a rain storm with a group of screaming second graders, they are not quite as adorable. Or when 2am rolls around and the girls are like whac-a-moles—you get one in the tent in her sleeping bag and another one pops up. Again, not the precious angels shown here.

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The next weekend (aka three days ago), my daughter had a sleep over to celebrate her eighth birthday. There were games, there were ice cream sundaes, there were high-pitched squeals. There was staying up until the wee hours of the morning to make sure the girls stayed down all night, and there was waking up before sunrise because, well, the girls were up and I like the downstairs of my house too much to let them have unsupervised control over it for any lengthy period of time.

While chaperoning these weekends of elementary school bliss, I realized that I could teach the better part of my 1L property class to the girls using the experiences they were having. It was a real life, in the moment type of class a la Jerry’s field class at the University of Idaho. It was, in the words of Tony the Tiger, grrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrreat.

I started at the very beginning, asking “what is property?” The girls looked at me like I was crazy, but then, so do my 1Ls when I ask the same question. Are your thoughts property? Is your persona property? Is your body property? All of these questions were dealt with during my chaperoning weekends.

8-year-old #1: (high-pitched yelp) She’s touching me! She’s touching me!
8-year-old #2: (higher-pitched yelp) She started it! She touched me first!
Me: (after drinking a sip of beer) Everyone keep your hands to yourself. Your body is yours, though we don’t want to call your body your “property” as that has negative connotations. But you have full rights to exclude everyone else from your body, unless parts of your body or organs have been removed, in which case you have no rights to them. See Moore.
8-year-olds #1 and #2: (looking at me like I have two heads) Huh?
Me: Well, you see there was a guy in California . . . . (8-year-olds run off, having forgotten what they were fighting about and now sharing the common thought that I’m nuts, not unlike my 1L property students)

Next, I taught about the Tragedy of the Commons.

Me: (putting out four large, family-sized bags of potato chips that were sufficient to feed an army) Snack time!
All 8-year-olds: (gulping down chips like they have not been fed for days) Gimme! She got more chips than I did! (munch, munch, munch) I want more! (smack, smack, smack)
Me: Sigh. (drinks longer sip of beer) I will divide the chips into even amounts for you, otherwise you will overconsume the chips out of fear that someone else will get your chips, thereby depleting all of our chips, and leaving us with no more snack time resources. This is a good time for me to tell you a story. Gather ‘round everyone for a cattle-grazing tale by a man named Garrett Hardin . . .
My 8-year-old: (whispering) Mom, please don’t embarrass me.
Me: Siiiiiigh. (opens another beer)

Then we moved into what makes up the proverbial bundle of sticks of property rights by first looking at the right to exclude.

8-year-old #1: (in a whining voice because she has a belly ache caused by overconsuming chips) She’s laying on my sleeping bag and pillow!
8-year-old #2: (in an equally whiny voice) I like yours more than mine. Let’s trade.
8-year-old #1: I want mine! Make her give me mine!
Me: Everyone has to use their own sleeping bag. No one touch other people’s stuff. Your sleeping bag is your own personal, private property so you have the ability to exclude everyone else from your sleeping bag.
8-year-old #1: (whispering in my 8-year-old’s ear) What is your mom talking about?
My 8-year-old: (opens her eyes wide, glaring at me with that “please be quiet” look) Mooooooom!

Having multiple kids sleeping in the same tent naturally leads to a discussion about the right to include.

8-year-old #1: (tears streaming down her face) They won’t (sob) let me (sob) in the tent!
Me: Everyone in the tent come out.
Three girls come out, looking sheepishly.
Me: You can’t exclude anyone from the tent. Everyone gets the right to use the tent. The tent is like a public thing or a quasi-public thing. Everyone has a right to . . .
8-year-old #1: (no longer crying) Do y’all want to go fishing?
All 8-year-olds: YAY! (they run off)
Me: Sigh. (shotgun second beer)

Fishing brings us to a lesson in the rule of capture.

8-year-old #1: I caught a fish! I caught a fish! I caught a fish! (waiving around a fishing rod with a small bass hanging on the end, still stuck on the hook)
Me: Hold still and let me take the fish off the hook. (insert mild expletives under my breath as I get stuck by the hook while removing the fish) There! (throw the fish into the bucket that is holding all of the fish)
8-year-old #2: Ooooh! I want your fish! (sticks hands in the bucket)
8-year-old #1: She’s touching my fish!
Me: Don’t bother the fish. That’s her fish because she caught it. When you capture something that is a res nullius, like a wild bass, it becomes yours under the rule of capture. The rule of capture is really fascinating because . . .
8-year-old #3: We’re catching tadpoles over here!
8-year-old #1 and 2: FUN! (recently caught fish is dropped on the ground and jumps around, finding its way back into the lake before I can grab it)

Catching tadpoles with nets allowed for a lesson in future interests and, shocking as it may be, the RAP (or at least the fundamental ideas behind the RAP).

8-year-old #1: (to 8-year-olds #2 and 3) You can use the net now, but after y’all use it, you have to give it back to me.
8-year-old #4: I want a turn!
8-year-old-#1: I gave the net to 8-year-olds #2 and 3 and then I get the net back.
8-year-old #4: (looking at me) She won’t let me have a turn!
Me: (looking at 8-year-old #1) You can’t control who uses the net that long after it’s been in your possession. You can only control the use of the net for 21 minutes after your possession of it because otherwise you would be exercising too much long-term control over the net and for the good of all of us on this camping trip, we want the net to be more transferable and usable by lots of different people so . . .
8-year-old #2: People are going hiking! Let’s go! (drops net into the lake such that I have to wade in to grab it)

Eventually, the fishing, tadpole-hunting, and hiking came to an end and we commenced roasting weenies and s’mores. I brought with us some long roasting sticks and put them out for the girls to use, which prompted a good discussion on adverse possession.

8-year-old #1: (tugging on my shirt while pointing at essentially all of the other 8-year-olds) She took my roasting stick!
Me: (thinking “why did I agree to be the Brownie Troop leader?”) Are you sure it was yours?
8-year-old #1: (confidently) Yes! (pointing aimlessly at the table behind her) I put my stick on this corner of the table three hours ago and told everyone not to touch it, but she (again, pointing at the collective group) picked it up and has been using it to roast two hot dogs and four marshmallows.
Me: (taking a deep breath) She’s been possessing the stick for a pretty long time. I think the stick is now hers. After you adversely, physically, openly possess property for a long enough period of time, that property becomes yours.
8-year-old #1: That’s not fair.
Me: I know it seems unfair, but there are a lot of reasons we say the adverse possessor gets the property. It requires you, the true owner, to pay attention to your marshmallow roasting stick instead of just leaving it, unattended on the table. It creates stability in title so 8-year-old #2 eventually can be confident the roasting stick she’s using is hers and won’t be taken away. It encourages her to use the roasting stick and develop it, shape it, bend it, into the best roasting stick she can make . . .
8-year-old #1: Chocolate!!!! (runs off when a new box of Hershey chocolate bars is opened)
Me: Sigh. (realizes beer is not strong enough so opens up flask of bourbon)

Finally, we all learned about the virtues of easements.

Me: Okay girls, everyone get in their sleeping bags and close their eyes. It’s time to go to sleep.
8-year-old #1 moves her sleeping bag to be right in the pathway I’ve created for the girls to exit the tent
Me: Put your sleeping bag back where you had it. We need to leave a pathway for folks to get out of the tent.
All 8-year-olds in unison: (in a voice that says “I’ll do anything to stay awake a little longer, even listen to your crazy lectures”) Why?
Me: Well, someone may need to potty in the middle of the night, so we need to have an easement so y’all can exit the tent. When you have an easement, you cannot block the use of that easement because . . .
All 8-year-olds: Zzzzzzzzzzzzzz.

There you have it. Property 101 through the eyes of an 8-year-old. We didn’t quite cover everything—I haven’t yet figured out how to work mortgages into the conversation—but we covered a lot. The conversations didn’t go exactly as I’ve described above. The girls were not nearly this whiney, in fact they were all actually pretty good, and while I'm not a particularly cool mom, I am a cool enough mom to not mention Garrett Hardin to my daughter’s friends. But all of the general activities described above did occur and the girls had a great time, which may be more than I can say for all of my 1Ls. Who knows, maybe they even took away a few lessons in property law.

May 10, 2016 in Adverse Possession, Future Interests and the RAP, Miscellaneous, Personal Property, Property in the Human Body, Property Theory, Teaching | Permalink | Comments (4)

Sunday, May 12, 2013

Tsarnaev Burial Saga Highlights Flaw in the Law of Human Remains

The Worcester (Massachusetts) Police Department reports that Tamerlan Tsarnaev’s body was buried in an undisclosed location in the middle of the night this week, bringing an end to a sad, unprecedented soap opera.   This controversy has been resolved – but what happens next time?  The Tsarnaev burial saga highlights a fundamental flaw in the American law regarding the disposition of human remains. 

Despite the calls of protestors to “feed [Tsarnaev] to the sharks” or “toss him in the landfill,” it is a basic premise of American law that we treat human remains with respect.  In fact, it is a general principal of law that every person who dies in the United States is entitled to the decent treatment and disposition of their remains.  “Abuse of a corpse” is a crime in many states.  A number of state even have statutes forbidding cursing in the presence of a corpse.

But while the law promises that remains will be treated with respect, the government has very little power to enforce that promise.

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May 12, 2013 in Property in the Human Body | Permalink | Comments (0) | TrackBack (0)

Monday, August 13, 2012

Rethinking Laws Permitting the Sale of Human Remains

I'm putting the finishing touches on my article proposing a limited property interest in human remains.  As I've presented this paper to various groups over the past year, one critique I've often received is that granting a property interest in human remains will lead to the commercialization of those remains.  I just posted a piece on Huffington Post which addresses that critique, and points of the amazing array of human remains for sale on the Internet.  On Ebay, you can currently pick up a set of human ribs for $20.50 (after six bids), an articulated hand for $142.50 (after 14 bids), a complete spine with pelvis bone for $300, a skull for $1300, or an entire human skeleton (including a display case) for the "Buy It Now" price of $1900.

Tanya Marsh

August 13, 2012 in Property in the Human Body | Permalink | Comments (0) | TrackBack (0)

Monday, August 22, 2011

Rausch on Abortion and Property Rights

Rebecca Rausch (Seattle - Teaching Fellow) has posted Reframing Roe: Property Over Privacy (Berkeley Journal of Gender, Law & Justice) on SSRN.  Here's the abstract:

Roe v. Wade has received much criticism from both sides of the political spectrum. Though the perspectives of the two camps differ significantly, players from each share at least one common critique of the landmark decision. Specifically, both sides are skeptical about the lack of an express Constitutional right to privacy, on which the Supreme Court in Roe based its decision to find a “fundamental” right to abortion. This lack of Constitutional context and legal history renders Roe vulnerable. In addition, pro-choice advocates find fault with the privacy basis because it yields no positive rights to funding or access support from the government; it is relegated to the land of negative rights, which might provide the right woman with reproductive choice free from government intrusion, but for the wrong woman - one with limited resources - the so-called “choice” becomes nonexistent.

This article investigates whether the absence of positive rights and the foundational flaw of the right to privacy might be adequately addressed by reframing Roe in the language of property - specifically, a woman’s property right in her uterus. Assuming arguendo the anti-choice tenet that the fetus is a person from the moment of conception, separate from the woman carrying it, the article sets forth an argument that the fetus is an unwanted trespasser in the woman’s uterus whom the woman has a right to eject. Further, the article posits that this property-based notion of abortion might give rise to government funding for abortions based on a Constitutional obligation to maintain a system designed to protect women’s uterine property, similar to states’ obligations to maintain a police force in order to protect other forms of private property, including the removal of trespassers. In short, this article provides a new basis for abortion rights that takes advantage of the long-standing traditional notions of property law and the right to exclude, as well as the public support that attaches to that right, manifested through anti-trespass systems. After establishing the property-based argument, the article explores what might be gained, and what might be lost, by adopting such a premise for abortion rights and access. Among these considerations is whether the anti-trespass scheme might push the abortion discourse beyond the typical polarizing rhetoric surrounding both the pro-choice and anti-choice camps, thus generating space for forward movement and meaningful work.

Steve Clowney

August 22, 2011 in Property in the Human Body, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 27, 2011

Battle Over the President's Body

Carlos_andres_perez_photo Picking up on Tanya's excellent post about disinterring Leather Man, here's a short story about a fight over the body of Carlos Andrés Pérez, the former president of Venezuela. 

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.

Steve Clowney


May 27, 2011 in Property in the Human Body | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 25, 2011

Disinterring Leather Man

New-History_Leatherman_Page126 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]

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May 25, 2011 in Miscellaneous, Property in the Human Body | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 2, 2011

Cemeteries, Land Use, and Cultural Differences

As readers of this blog may recall, one of my main research interests is the law of cemeteries and the relationship between the law, custom, and commercial interests in determining how Americans dispose of our remains.  I am fortunate enough to receive regular e-mails from students, colleagues and friends, sharing an Internet link to a stories related to this area.  (It's a little disturbing that so many people associate me with death, but it is also very nice of them to help me with my research!)

My colleague Barbara Lentz recently e-mailed me a link to a story from Slate.com by an American author sharing her family's experience with the Greek burial system.  The author's grandparents moved back to their native Greece in the 1990s, eventually died and were buried there.  At that point, the author's family learned that in Greece, graves are rented for a maximum of three years.  When the lease term is up, the remains are removed from the individual grave to a communal ossuary.  

From an American perspective, the Greek practices are horrific.  Our default position is that a grave is permanent, with superstition, secular cultural norms, and religious beliefs all arguing against disturbing a grave (See, e.g. Poltergeist).  But of course that isn't the entire story.  Why are there few graveyards in Manhattan and Chicago, and none in San Francisco?  Because they were all moved to the suburbs (or paved over) when the cities began to expand.  We would all have difficulty imagining that it would be acceptable to disinter Grandma and put her skeleton in a museum, but the Smithsonian has a fascinating CSI-type exhibit on the dead of Jamestown, Virginia -- all of whom were disinterred, examined, and put in a museum. We all draw lines regarding the rights of (or respect for) the dead and the interests of the living.  I'm really interested in where Americans draw those lines, and why.

If you are also interested in this subject and attending ALPS, I will be participating in a Saturday morning panel at 8:30am.  And if you run across any interesting stories, or have some to share from your own experience, please feel free to e-mail them to me!

Tanya Marsh

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March 2, 2011 in ALPS, Property in the Human Body, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Sunday, February 20, 2011

Collective Bargaining As a Property Rights Issue

There's an interesting thread over at the Faculty Lounge about the Wisconsin battle over collective bargainging rights for public employees.  Professor Calvin Massey opines that collective bargaining by public employee unions should be illegal.  Personally, I think that position is illogical and even dangerous, but perhaps that is because I tend to view most things through the lens of property rights.

I hope it is beyond debate that one has a property right in one's labor (confederate flag raisings notwithstanding).

That being true, it seems to me that advocates of private property rights should be adamant that one has the decision right to alienate, or not alienate, one's property on terms of one's own choosing.  If, for example, I want to sell my house in concert with my neighbors because together we can obtain a higher price, that's my business.  And that's true even if the buyer is the government.  Free market advocates would be outraged if the government told me otherwise, no?

So if we substitute "labor" for "house," why on earth should the result be different?

That's why I believe that opposition to collective bargaining is fundamentally inconsistent with respect for private property rights.  Protecting private property rights means protecting the right of each person to attempt to strike a bargain for the alienation of her labor.  Of course, potential buyers of labor should be free to refuse to purchase until they find a price they are willing to pay; but limiting collective bargaining limits not merely the price a buyer is willing to pay, but also the ability of the seller to bargain for her labor -- her private property. Therefore, limiting collective bargaining means limiting rights in private property.

Yet many of the same people who claim to value private property rights favor eliminating collective bargaining by public employees.  That position is inconsistent at best. 

If I am wrong, please correct me.

Mark A. Edwards

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February 20, 2011 in Miscellaneous, Property in the Human Body, Property Theory | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 23, 2010


Frequent readers may remember that an important tenet of my property teaching philosophy is that the struggle over property rights has a central place in history.  I've argued that we might undersell the importance of property rights by focusing so intensively on the doctrinal trees that we miss the political-economic forest.

One way I like to discomfort my students, and bring into stark relief the historical importance of property rights, is by examining the emancipation of slaves through the lens of the Takings Clause. 

The Takings Clause may seem (and, I think, is) a somewhat callous and inadequate lens through which to view the abject horror of slavery, but that's exactly how some framed the issue 150 years ago.  In a debate on the Senate floor, Henry Clay (for one) argued that emancipation of slaves would be a taking of private property, requiring just compensation of the slave owners.  Anticipating the reply that emancipation could not be a taking because humans could never have legitimately been property, Clay said (I like to imagine coolly), "That is property which the law says is property."  Sale of slaves

In both my first year course, and my Comparative Property Rights seminar, I make my students debate that proposition.  I ask them simply: Is it true?  Most say no.  So then I ask: If law can't tell us what is property, then what can?  No one, myself included, seems to be able to answer that.

All that is a prelude to telling you that for the past few weeks, the New York Times has been running a wonderful feature, Disunion, which provides a day-by-day analysis, using primarily contemporary accounts, of the descent into the Civil War immediately preceeding and following Lincoln's election in 1860.  For history buffs like me, it's fascinating.  I find myself more eagerly concerned about the daily news from November 1860 than the news on the front page. 

The news from this week (minus 150 years) has been particularly ominous.  Southern state legislatures are meeting to 'discuss' secession in the wake of Lincoln's election, but the extreme rhetoric of the meetings leaves no doubt that horrible violence is at hand.  Members of the cabinet of the sitting President are preparing to join them.  The federal government is teetering. 

Meanwhile, President-elect Lincoln has remained maddeningly silent.  Finally, the pressure becomes unbearable, and through Illinois Senator Lyman Trumbull, Lincoln attempts to reassure the South: "when Trumbull told the crowd that under Lincoln, all the states will be left in complete control of their own affairs, including the protection of property, those in the know believed they were hearing the words of the president-elect."  The meaning of Lincoln's pledge to protect property was unmistakable.  Lincoln was attempting to tell the South that, in Clay's words, that was property which the law said was property -- including human beings.  For Lincoln's admirers, that pledge may come as a shock.  He was not yet fully committed to emancipation.Slave deed   

But, of course, nothing Lincoln could say or do would reassure the Southern legislatures.  They didn't trust him or the abolitionists who supported him.  War was on the horizon. Within five years of that week in November, 600,000 Americans would be dead.

As I like to say to my students, when it comes to property rights, damn right, there will be blood.  

Interestingly, in hate-laced rhetoric that resonates today, secessionists cast Lincoln and Vice President-elect Hamlin as something 'other' than bona fide Americans.  Southern media and politicians constantly accused Hamlin in particular of having “black blood in him,” or being descended from Native Americans.  One Southerner wrote to Lincoln, offering to buy the "intelligent mulatto boy" Hamlin from him.

The Disunion series is a fantastic teaching tool on lots of levels, but it is a treasure trove on the historical centrality of property rights.  Check it out.

Mark A. Edwards

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November 23, 2010 in Property in the Human Body, Property Theory, Takings, Teaching | Permalink | Comments (2) | TrackBack (0)

Sunday, 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

Tanya Marsh

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July 25, 2010 in Property in the Human Body | Permalink | Comments (0) | TrackBack (0)

Thursday, April 15, 2010

Is that Property which the Law Declares to be Property?

In response to Virginia's celebration of confederate history month, and in connection with teaching takings this week, yesterday I had my property class read Henry Clay's argument against the emancipation of humans held as slaves.  Clay's argument was that if emancipation were to occur, it would constitute a taking, and thus was impermissible under the 5th Amendment without just compensation.  Since the government was not prepared to provide such compensation, emancipation would be an illegal and unconstitutional act.

Anticipating the rejoinder that there could be no taking if the thing taken were not property, Clay said, "That is property which the law declares to be property."  For at least 200 years, he said, both before and after the ratification of the Constitution, humans of African descent had been recognized as private property.  They were not just uncompensated labor; they could be alienated, possessed exclusively, and used like other forms of private property, including as security for debt.  Generations had relied on the law, and the law told them that slaves were property. 

Now, I was not about to ask first-year law students to argue the position that the emanicpation of slaves without full compensation of their former owners was a  legally wrong, unconstitutional act.  So, I took that position (and, in case there is any misunderstanding here, I'll say now what I said to my class: of course I don't think emancipation was wrong, and I'll kick the @*&%$ of anyone who says otherwise).  I then told my class to explain, if they thought I was wrong, why.

I made them focus on whether slaves had ever really been property, as the law had said they were.  I did not let them argue too long that the emancipation was not a taking (in the sense that it was merely a regulation that didn't go 'far enough'), or that compensation had already been provided through the slave's labor.  There are good arguments for those positions, perhaps, but they also allow us to dodge Clay's provocative claim.  So I insisted they tell me: is that property which the law declares to be property?   

It was a fascinating discussion, particularly in light of the typical skepticism with which my students had regarded the idea of unenumerated rights the week before when discussing zoning.  I'm as skeptical of 'natural law' as the next product of the Enlightenment, and yet . . . . try as we might, we just could not accept that humans had ever legitimately been property simply because the law had declared it.  But if that's true, then what is the source of authority that says otherwise?  Something greater than the Constitution?  And if we say yes, aren't we acknowledging and defending the existence of unenumerated rights, whether implied in the Constitution or not?  Isn't that the essence (so to speak) of natural law?

Regardless, it was a fascinating exercise, and one I highly recommend for your property classes.

Mark Edwards

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April 15, 2010 in Property in the Human Body, Property Theory, Takings, Teaching | Permalink | Comments (4) | TrackBack (0)

Friday, April 2, 2010

Avatar: awful but useful

There are some films I eagerly want to watch; there are many I'm completely indifferent to; and there are a few I determinedly avoid.  Avatar was one of the latter.  I'm grumpy about 'blockbusters' and I can't stand tired old cliched plots.  My children will one day tell their therapists about all the cultural references they missed because I wouldn't take them to hit movies. 

So it was very odd to find myself watching it in Omnimax 3D, surrounded by law students.  Reader, I took my entire Comparative Property Rights seminar to see it. 

Here's my review: special effects = impressive; movie = even worse than I feared, and that's saying something.  But . . . as a property rights teaching tool?  Pretty darn good. 

Some of the property issues are obvious: who has rights in the 'unobtanium' (even the name makes me cringe)?

But others are less obvious, more interesting and good teaching tools.  [SPOILER ALERT!]  For example:

  • who owns the avatars?  The company that developed them?  The people 'inhabiting' them?  Or are they human-enough that they are unownable?  Interestingly, my students generally agreed that they were the intellectual property of their creators.  But the implications of that left them uneasy: owners of property, after all, generally have the right to destroy it.  And yet everyone rooted against the company when it attempted to do just that.  And if the avatars are property, can they own property?  The main character seems to.
  • Do the Na'avi have individual property rights, or do they own all property in common?  Do the earthlings view them as 'noble savages' who are too pure for private property?  Does director James Cameron?  In that context, consider the cultural misunderstandings about that very issue that have historically undermined indigenous property rights systems: as Kenneth H. Bobroff explains, the continued misperception that Native American tribes owned all resources in common has had disastrous results for generations of Native Americans. 
  • What if the Na'avi lived in the United States -- could the government have simply taken their land, compensated them, and been done with it?
  • Has James Cameron misappropriated others' creative inventions?  After all, believe me, if you've seen Pocahantas or Dances With Wolves, you've seen Avatar, too at a startling level of detail.
  • Last property question:  Do you get to keep the 3D glasses? 

Did you see Avatar?  Did you think of the property rights issues?  Do your children find you annoying, too?   

Mark Edwards

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April 2, 2010 in Miscellaneous, Property in the Human Body, Teaching | Permalink | Comments (0) | TrackBack (0)