Tuesday, December 4, 2007

Colorado Redevelopment Case

The Colorado Supreme Court recently decided Wheat Ridge Urban Renewal Authority v. Cornerstone Group, an eminent domain case involving the ability of the government to change its mind and back out of a redevelopment condemnation.  Ilya Somin and Tim Sandefur both have comments on the case.

Ben Barros

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December 4, 2007 in Recent Cases, Takings | Permalink | Comments (1) | TrackBack (0)

Monday, December 3, 2007

Interesting Sign Dispute, With Eminent Domain Twist

From the Saint Louis Post-Dispatch:

Supporters say it's a political statement, maybe even art. The city says it's too big, a nuisance that needs to be removed.

Either way, a two-story mural decrying eminent domain is testing the boundaries of the First Amendment, sparking a federal lawsuit that challenges the city's intricate zoning code.

At issue is a tricky constitutional dilemma — fighting clutter versus protecting free speech — that experts say could force St. Louis to rewrite its laws regarding outdoor signs. . . .

Painted on the side of a brick apartment building near Soulard, the mural faces drivers heading downtown on Gravois Avenue. It advocates an end to "eminent domain abuse," the mantra of veteran activist Jim Roos.

Roos is among the state's leaders in the fight against eminent domain, an issue that has gained visibility since a 2005 Supreme Court ruling that cities can use eminent domain to promote economic development. He has testified in Jefferson City and clashed with city officials who support eminent domain. . . .

In April, the building division cited Roos for having an illegal sign. At about 360 square feet, the eminent domain mural is more than 10 times larger than the size allowed for signs in that section of the city.

Three surrounding neighborhood associations have submitted letters opposing the sign, as did the local alderman, Phyllis Young.

"He should rent a billboard," Young said.

Roos fought the citation, claiming the city was targeting him not because of the size of his sign, but because of its message.

"I think if it said, 'Go Cardinals,' we wouldn't have any problems," Roos said.

The city routinely approves exemptions for large signs. On the same day a city panel rejected Roos' claim, it granted an appeal by Laclede Gas to display a sign of over 1,000 square feet on the utility's downtown headquarters.

Even so, content is not the issue, city officials say — it's keeping the city tidy.

"Can you imagine what our city would look like if everyone were allowed to paint a 363-square-foot, two-story sign on their buildings?" asked City Attorney Patti Hageman.

Roos has taken his case to federal court, where he has drawn the aid of the Institute for Justice, a libertarian advocacy group in Arlington, Va.

Ben Barros

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December 3, 2007 in Land Use, Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, November 29, 2007

New Jersey v. Delaware

I'm not sure how I missed it up until now, but a fascinating property case was argued this week in the Supreme Court.  The case involves a dispute related to the border between New Jersey and Delaware.  New Jersey wants to allow a large natural gas storage plant on its side of the Delaware river.  To make the plant workable, it needs to put in a 2,000 foot pier, which presents a problem. From the NY Times story on the argument:

Under a 1934 Supreme Court decision that settled a long-disputed boundary, Delaware owns the entire riverbed, from its own shoreline up to the low-water mark on the New Jersey side. But that fact, which neither side in the current case disputes, is not the end of the case, but only the beginning, as the argument on Tuesday made clear.

A major complicating factor is that in 1905, before the boundary was settled, the two states entered into a compact that is still in effect. It provides that “each state may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature” under its own laws.

The word riparian refers to shoreline, and under traditional land-use law, ownership of shoreline property conveys the right to build a pier or wharf extending far enough into the water to make the property accessible.

To New Jersey, permitting the BP project is simply an exercise of “traditional riparian authority” recognized under the compact, its lawyer, H. Bartow Farr III, told the justices.

But “the question that’s really at the rub of this case,” Delaware’s lawyer, David C. Frederick, said when his turn came, “is what you do on the wharf.”

The “crucial distinction here,” he said, was that Delaware was entitled to exercise its police power to block an activity that it considers dangerous or a “nuisance.”

The justices’ many questions during the animated session indicated that they found neither argument completely persuasive.

“Obviously, the right to ‘wharf out’ does not include the right to use the wharf for whatever you like,” Justice Antonin Scalia said to Mr. Farr.

And Justice Samuel A. Alito Jr. objected to Mr. Frederick that if Delaware was entitled to a veto power over the uses of New Jersey-based piers and wharves, then the effort in the 1905 compact to preserve New Jersey’s riparian rights was “worthless” and “meaningless.” Could Delaware declare that docking a sailboat was a “nuisance”? he asked.

As an added bonus, Justice Breyer has recused himself from this original jurisdiction case, raising the possibility of a 4-4 tie.  What happens with a tie vote in an original jurisdiction case?  Who knows.

Ben Barros

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November 29, 2007 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, November 15, 2007

Post-Lingle Substantive Due Process Case

Over at Law of the Land, Patty Salkin has a post on a recent Ninth Circuit decision in Crown Point Development, Inc. v. City of Sun Valley.  The Circuit had previously barred land-use substantive due process claims, under the reasoning that if a land use regulation did not substantially advance a legitimate interest, it was a taking.  So under the prior Ninth Circuit law, a substantive due process claim would be replaced by a takings claim.  This reasoning was always suspect, but is clearly wrong after Lingle.  So in Crown Point, the Ninth Circuit has correctly recognized that a landowner can maintain a substantive due process challenge to a land-use regulation.

Ben Barros

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November 15, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Saturday, November 10, 2007

Claims of Pretextual Takings Post-Kelo

The D.C. Court of appeals recently held that a property owner can challenge a taking based on a blight designation as pretextual.  I've had some e-mail discussion with some folks about the case (Franco v. National Capital Revitalization Corp, 930 A.2d 160 (D.C. 2007)) and whether this type of challenge is the kind of claim of pretext that the Kelo majority expressly contemplated or whether it is an end-run around Kelo.  I'm waffling, and need to think about it more, but wanted to note the decision.  Another interesting issue, which I also need to think about more, is whether this creates a split with the Second Circuit's recent Didden decision.

UPDATE:  Ilya Somin at the VC has a very thoughtful post on this case.  Ilya is more up on this issue than anyone I know.  Check it out.

Ben Barros

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November 10, 2007 in Recent Cases, Takings | Permalink | Comments (2) | TrackBack (2)

Monday, October 1, 2007

Interesting Eminent Domain Compensation Case

The Columbus Post-Dispatch has a report on an interesting eminent domain damages case.  An excerpt:

Canal Winchester wants the land to link a bike path between Rager Road and the village swimming pool. It used eminent domain to take a strip of Stebelton's 80-acre property and hired an appraiser who determined that the $9,249 would be enough compensation.

"It wasn't fair at all," Stebelton, 75, remembers thinking.

Stebelton was the only one of eight property owners who didn't agree to sell his land to the village for the path. Instead, he went to court to challenge the village's valuation.

The jury decided Sept. 20 that the land the village wants, along the northern edge of his property, is worth $37,000. But the jury also decided that by taking it, the village was closing off a back entrance to the property and damaging the value of the rest of Stebelton's land by $558,625.

Ben Barros

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October 1, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, September 27, 2007

Defeasible Estates in the News!

A school renovation project was put in jeopardy when 100-year old deeds surfaced showing that part of the relevant property had been granted for school playground purposes only, otherwise to revert to grantor's family.  The best quote, from the counsel for the title insurance company that didn't find the deeds and ended up on the hook:  "I would have to say, in my 30 years in this business, this is the first time I've seen a right of reverter anywhere but in a law school exam."

Ben Barros

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September 27, 2007 in Estates In Land, Future Interests and the RAP, Real Estate Transactions, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, September 15, 2007

Changes in Tree Law

Thanks to Carl Christensen for this story from the Washington Post about the Virginia Supreme Court's decision to change its law regarding neighbors and trees.

In the suburbs, there are few issues that can cause as much rancor and neighborhood discord as a deep-rooted, mature tree that has no regard for the neat boundaries of a property line.

Who pays if your neighbor's tree damages your house?  Yesterday, the Virginia Supreme Court weighed in on the contentious issue with a decision that overturns a nearly 70-year-old precedent. Now, for the first time, homeowners can sue to force a neighbor to cut back branches or roots or take out the tree altogether if it poses a risk of "actual harm" or an "imminent danger" to their houses, the court ruled. Tree owners can now be held liable for any damage caused by the tree. ...

In the past, most states used the "Massachusetts rule," which held that if a tree grew on your property but the branches hung into your neighbor's yard, that neighbor could cut them back as far as the property line. If the roots cracked the neighbor's patio or if the branches ripped their siding, it was their problem. And if the neighbors' pruning killed your tree, you could sue them for damages.

Maryland and the District still follow the Massachusetts rule, according to officials there. ...

[Virginia's new] rule, modeled after a 1981 case in Hawaii, says that a neighbor can't sue a tree owner for the little annoying things -- "casting shade or dropping leaves, flowers, or fruit." But it's a different story if the tree becomes a nuisance. The owner of a nuisance tree "may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance," the court said.

Sounds like a fabulous topic for a student note!

Alfred L. Brophy
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September 15, 2007 in Recent Cases | Permalink | Comments (1) | TrackBack (0)

Monday, August 6, 2007

New Jersey Post-Kelo Eminent Domain Case

Last week, a New Jersey intermediate appellate court issued an opinion in Vineland Const. Co., Inc. v. Township of Pennsauken upholding a Kelo-style taking for private development.  The town had selected a private entity to redevelop an area of waterfront that included plaintiff's land.  Plaintiff wanted the option of redeveloping the property on its own.  The taking was upheld under Kelo and New Jersey equivalents.

Ben Barros

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August 6, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 27, 2007

More on Wilkie v. Robbins

On the subject of Nestor's post immediately below, Jonathan Adler at the VC notes that the most pro-property rights opinion in Wilkie was Justice Ginsburg's dissent.  Also at the VC, Ilya Somin has a skeptical analysis of the Court's reasoning.

Ben Barros

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June 27, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 26, 2007

Retaliation and the Takings Clause

The Supreme Court yesterday decided Wilkie v. Robbins, a case that involved assertions that officials of the Bureau of Land Management had harassed and intimidated the owner of a Wyoming guest ranch in order to extract an easement that had been lost by the BLM's failure to record prior to a transfer of ownership.  In an opinion by Justice Souter for a 7-2 majority, the Court held that the landowner had neither a private right of action under Bivens v. Six Unknown Federal Narcotics Agents nor a claim under RICO.

One interesting aspect of the case is the contrast between Justice Souter and Justice Ginsburg in a partial dissent (joined by Justice Stevens) in their evaluation of the owner's argument that the BLM had retaliated against him for "standing on his right as a property owner to keep the Government out" of his property (because the government was, he asserted, trying to force him to grant an easement without compensation).  Justice Souter rejects the argument in part with the proposition that, unlike other instances of retaliation the Court had recognized, "trying to induce someone to grant an easement for public use is a perfectly legitimate purpose."  To the majority the acts of the officials in this instance amount to "hard bargaining."  In the course of discussing qualified immunity, Justice Ginsburg asserts, by contrast, that the Takings Clause "surely" contemplates "the right to refuse to submit to a taking where no compensation is in the offing."  Justice Ginsburg offers a cf. to Dolan and Nollan, raising an intriguing link to exactions. 

Rejecting a Bivens claim does not say much about other avenues of relief (and the Court makes clear that the owner had recourse to a variety of administrative and judicial remedies), but the Court does in fairly broad terms question the concept of relief for retaliation based on the assertion of rights under the Takings Clause.

Nestor Davidson

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June 26, 2007 in Land Use, Recent Cases, Takings | Permalink | Comments (0) | TrackBack (1)

Tuesday, June 19, 2007

Property, Indigeneity and Immigration

Thanks to Ben and Al for inviting me to guest-blog here. As Ben mentioned, I am an assistant professor of law at Southern Methodist University (SMU) in Dallas, Texas. I just finished my first year of teaching property and immigration law. My research interests include, among other things, indigenous peoples' property rights and the intersection between property and immigration. I look forward to blogging about property laws in exotic places such as American Samoa and the Commonwealth of the Northern Mariana Islands. In these two U.S. territories, for example, only indigenous peoples who have the requisite amount of blood quantum may own property or lease land for more than 55 years. I examine the complex questions of indigeneity, culture, property rights and constitutional issues that these land alienation restriction laws raise in a forthcoming piece entitled, "Exploring the Meaning of Blood Quantum Laws." (I will post the paper on SSRN soon.)

I will also be blogging about not-so-exotic places like Farmers Branch, Texas and Hazleton, Pennsylvania, which have been entangled in lawsuits because of their recently enacted ordinances available here and here that prohibit undocumented immigrants from renting property.

Thanks again for the invitation.

Rose Cuison Villazor
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June 19, 2007 in Land Use, Recent Cases, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, May 25, 2007

Another Fun Adverse Possession Case

Bruce Ziff (U. Alberta) pointed me to this story about a great adverse possession case in London:

A homeless pensioner who has slept rough in one of London's plushest beauty spots since 1986 was celebrating Thursday after winning ownership of his plot of land, turning him into an instant millionaire.

Harry Hallowes, 71, secured ownership to a 800 square-metre plot in Hampstead Heath, after a two-year legal battle with developers who tried to evict the pensioner from the grounds of a former nursing home.

A building developer had tried unsuccessfully to evict Hallowes from his makeshift shack since March 2005 as it sought to transform the building into luxury flats.

The feisty pensioner dug his heels in and consulted lawyers who provided evidence which showed that he had been living unchallenged on the plot for 21 years, and thus could claim the land as his own.

The area around Hampstead Heath is well known as an expensive place to live, even by London's inflated property prices, and is home to many stars, celebrities and liberal professionals.

"Someone mentioned a million and someone else said two million, but I'm not impressed with figures. I just wanted a place to live," a very composed Hallowes said after hearing the news.

Ben Barros

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May 25, 2007 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 23, 2007

Fun Fact Pattern

Boston.com has an article on an interesting dispute involving adverse possession, unbuildable lots, and more:

HOLBROOK -- In 1908, a downtown Brockton store owner offered his customers a deal: buy a men's suit and he would throw in a tiny plot of land out in the country.

Daniel W. Baker of Besse, Baker, and Co. clothiers had purchased 40 acres of open land known as Edgewood Park in then-rural Holbrook. He divided the property into lots of about 85-by-20 feet or smaller and gave away hundreds. He kept the ones left over when the promotion ended.

This unorthodox marketing ploy has today left a tangle of claims and conflict that could take another century to unravel.

Many of the approximately 500 unbuildable lots are orphans; the town does not know who owns them, and isn't collecting some $750,000 in taxes owed on the parcels.

Moreover, a local sewer contractor who does own a few of the lots is claiming squatter's rights to the entire 40-acre parcel, setting off a confrontation with Daniel Baker's surviving heirs, and some nearby residents who say he's barred them from woods that had been accessible for decades.

"As far as I'm concerned, I own it," said Wayne D. Crosby, who has operated Tri-Town sewerage and other business operations on a portion of the property since 1976.

But Baker's surviving heirs, brothers Peter and John Blatchford, own about 136 lots, according to town records, which they would like to donate to the town. But they have been deadlocked with local officials over a $130,000 bill for back taxes.

In the meantime, the Blatchfords and Crosby have locked horns over access to the property. Crosby has installed a locked gate across one entrance to the property, fences on part of the perimeter, and posted no trespassing signs on some of the disputed land. He has also threatened to call police if anyone comes onto the property, and more pointedly barred Peter Blatchford after he tried to go on the land.

"There's a squatter on the land, and he's locked everyone out," said Peter Blatchford. "I don't want to pay taxes on land I have no access to."

The intensity of the battle has some Holbrook officials leery.

"It almost reminds me of the Hatfields and the McCoys," said Selectman Richard McGaughey.

There's a lot at stake. Land values in this small community have shot up as home buyers have reached deeper into the suburbs to find available and more affordable housing stock. A typical house lot in town might sell for around $250,000, said Kimberly Allard-Moccia , former president of the Plymouth and South Shore Association of Realtors. So 40 acres of mostly undeveloped land is probably worth millions to whomever ends up controlling it.

Squatter's rights, or in legal terms "adverse possession," stem from English common law and allow an individual under certain circumstances to obtain ownership of property without a title after occupying it for a specified number of years. In Massachusetts, the requirement to claim squatter's rights is 20 years.

Ben Barros

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May 23, 2007 in Recent Cases | Permalink | Comments (2) | TrackBack (0)

Friday, May 11, 2007

Zoltek Amicus Brief

Adam Mossoff (Michigan State) has posted the amicus brief that he drafted in support of cert. in  Zoltek Corp v. U.S.  The brief was joined by 27 law profs in addition to Adam, including yours truly.  The list of professors is a great illustration of the oddities of alphabetical order -- I'm up near the top of the list, and such luminaries as Henry Smith and Eugene Volokh are towards the bottom.

Ben Barros

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May 11, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 2, 2007

Ninth Circuit Escheat/Procedural Due Process Case

Eugene Volokh at the VC has an interesting, and delightfully titled, post on Taylor v. Westly, a Ninth Circuit case on California's escheat statute.

Ben Barros

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May 2, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 20, 2007

Wilkie v. Robbins

Over at the VC, Jonathan Adler has an interesting post on Wilkie v. Robbins, a potentially important property case that was argued before the Supreme Court yesterday.  An excerpt:

The facts of the case are straightforward: The federal Bureau of Land Management acquired an easement on a ranch, but neglected to record it. Robbins subsequently purchased the ranch and, due to the BLM's mistake, acquired the property sans easement. BLM officials demanded that he sign it over anyway, and when Robbins refused the government officials sought to give him a "hardball education" and retaliated by, among other things, harassing Robbins and his guests, filing trumped up charges against him. After this conduct continued for some time, Robbins had enough and sued the BLM agents involved for damages, and won.

The issue is whether the Fifth Amendment protects property owners against this type of retaliation.  The case has some takings aspects and some substantive due process aspects.  It will be interesting to see what the Court does with it.

UPDATE:  ScotusBlog also has a detailed post on the case.

UPDATE2:  Ilya Somin has some additional comments at the VC.

Ben Barros

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March 20, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (1)

Thursday, March 1, 2007

Hershey Trust

Milton_hershey We talk a lot here at propertyprof about new cases to add to the property curriculum, like what case ought to be first, a Hawaii substitute for Pierson v. Post, how to teach environmental justice, and RLUIPA

I'm teaching an advanced wills and trusts class for the first time this semester and am more excited about it than any class I've taught in years--in part because it has a seminar-like enrollment and I'm able to have a conversation with the students in a way that is difficult in lecture classes.  I'm also excited, though, because we're doing a bunch of fun stuff.  Much is on charitable trusts, though I'm also incorporating a practical component.  Working with a couple of colleagues in our clinic, the students work on quieting title to land that was inherited years ago (and now has a bunch of co-tenants), as well as a bunch of related issues.  Suffice it to say, I'm really enjoying the experience.

A few weeks ago we talked about the Hershey Trust case.  I thought that would be a great way to begin, because it deals with a company near and dear to the heart of this Pennsylvania boy.  And also because it's such an unusual case.  Perhaps this post would go better over at Gerry W. Beyer's shop, but I'm so excited by the case and our discussion that I thought I'd talk a little about it here.

The case arose back in the fall of 2002 when the Hershey Trust Company--perhaps at the instigation of Pennsylvania Attorney General--decided that it ought to diversify and, thus, moved to sell its controlling interest in the Hershey Chocolate Company.  That, then, led to a request for a preliminary injunction by the Pennsylvania Attorney General, under its parens patria power.  Not surprisingly, the trial court granted a preliminary injunction (the harm of sale was enormous), which was affirmed by the Commonwealth Court (over a vigorous and thoughtful dissent).  (The trial court's opinion is reprinted in an appendix to the Commonwealth Court's opinion available here.)  What particularly interests me about this case was the assertion of some kind of public right in the trust.  And while I certainly understand that the A.G. has the authority to look out for the trust beneficiaries, I was somewhat surprised to see the assertion of the public's right in the Hershey Company.

Seems to me that this is a great example of Joseph Singer's Reliance Interest in Property in action--and that the case has a lot of possibilities for future assertion of public rights.  Or maybe not, given how even the trial court judge recognized how unusual it is to have a charitable trust, established by the person for whom the town is named, which owns the major business in the town.  And even more unusual to then have the trust contemplating selling its business, when there is no apparent need for the money.  Here's a thoughtful and balanced and brief analysis of the case.  There have been three law review pieces devoted to the case--one by Mark Sidel in the Pitt Law Review (available through hein online here),one  by Evelyn Brody in the Indiana Law Journal (available here) and one by Jennifer L. Komorowski in the William and Mary Law Review (available through hein online here).

Anyway, it may be hard to work that case into the first year property class; it's unusual to do that much with trusts in the first year class; I hope that casebook authors will at least think about noting it.  It's an important example of progressive property jurisprudence, I think.

The image of Milton Hershey is from the Hershey Company website.

Alfred L. Brophy
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March 1, 2007 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 17, 2007

Class Certified, Summary Judgment to Plaintiffs in Option ARM Case

I've posted before about the potential for sales-practices litigation arising out of the sale of Option-ARMs and other specialized mortgages.  Yesterday, a federal judge issued an order in Andrews v. Chevy Chase Bank certifying a class and granting plaintiffs summary judgment on their Truth in Lending Act disclosure claims.  The judge's order is here; the disclosure statement is here.  The judge also ruled that the plaintiffs were entitled to rescission.  I wouldn't be surprised to see an appeal, but the District Court's opinion seems to be well reasoned.  If duplicated in other cases, the District Court's general approach to the Truth in Lending Act -- the TLA is a remedial statute, and disclosures have to be crystal clear to protect lenders -- could spell trouble for a lot of lenders.  As I observed in my first post on the subject (follow the link above), mediocre disclosure is not going to offer much protection in the consumer context.

I've posted plaintiffs' counsel's press release after the jump.

Ben Barros

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January 17, 2007 in Real Estate Transactions, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Thursday, December 28, 2006

NY Court of Appeals Ruling on Property in Organs

The New York Court of Appeals has issued its ruling in Colavito v. New York Organ Donor Network, Inc.  I described the case in a previous post:

Widow of deceased donor gave both of his kidneys to his friend who was suffering from end-stage renal disease.  One kidney was sent to Florida for implantation into donee, but doctors determined that the kidney was damaged.  The doctors then requested the second kidney, but were informed that it had already been implanted into another patient.  The intended donee sued on a number of theories.  The district court granted summary judgment to the defendants.  The Second Circuit affirmed summary judgment on plaintiff's fraud count but certified questions regarding the donee's ability to maintain a private action against the defendants to the New York Court of Appeals.  Judge Jacobs dissented from the certification, asserting that under the facts presented, the intended donee was only entitled to one kidney.

In its opinion, the NY Court of Appeals answered the certified question by holding that plaintiff did not have any claim to the other kidney.  Slate (here) and the NY Sun (here) both have articles about the case.

Ben Barros

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December 28, 2006 in Property Theory, Recent Cases | Permalink | Comments (0) | TrackBack (0)