PropertyProf Blog

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

Property in the Lord of the Rings

Ilya Somin, the libertarian counterpart to GMU's natural law duo of Mossoff and Claeys, has a post at the VC on Property in the Lord of the Rings.

Ben Barros

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Mossoff to George Mason

According to David Bernstein at the VC, Adam Mossoff is moving from Michigan State to George Mason.  Will the natural law duo of Mossoff and Claeys eventually challenge Yale's Smith and Merrill for property theory supremacy?  Stay tuned to find out.

Ben Barros

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Merrill to Yale

Brian Leiter is reporting that Tom Merrill is moving from Columbia to Yale, joining his frequent collaborator Henry Smith.

Ben Barros

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More on What Virtual Property Can Do For Property: The Problem of Analogy

In my string of posts, I'm trying to explain how the study of virtual property can clarify our thinking about property generally and intangible rights in particular. In my last post, I explained some of the analytical problems in designating "intangible" as a property category. Here, I'll explain some problems with another analytical path that some courts follow in trying to fashion rules for intangible rights.

If you look at the bottom of that last post, you'll see that it's in the "Intellectual Property" category. Ben and I put the first post there because there wasn't a "Virtual Property" category two weeks ago, so we agreed that "Intellectual Property" was good enough. Why was it good enough? For one thing, I am discussing some IP. Eros v. Simon, the sex bed case, IS an intellectual property case.

But we also decided it was good enough because we analogized virtual property to intangible rights that we know already, and when many lawyers think of intangible rights, they think of intellectual property. Courts, of course, do the same, and sometimes reach results that are not very helpful, or worse, do not make much sense.

Another domain name case, Dorer v. Arel, 60 F. Supp. 2d 558 (E.D. Va. 1999) illustrates the problem of characterizing all intangible rights as intellectual property. Dorer was a creditors' rights case in which a judgment creditor wanted reach the domain name by garnishment. Under the applicable statute, only a property right could be garnished. So the court looked to one body of intellectual property law, trademark law, and concluded that a domain name that was eligible for trademark protection was property and thus garnishable, while a domain name not eligible for trademark protection was not property and therefore not garnishable.

Here's the problem. A domain name that is eligible for trademark protection can't be transferred without the goodwill of the business to which it is attached, and as a result, is not of much value to creditors. A generic domain name, on the other hand, is not eligible for trademark protection, but can be VERY valuable to a creditor because it can be transferred for lots of money.

So again, here's where the virtual world cases can help out. Virtual world disputes mirror disputes in the tangible world. People complain when they're denied use of their assets (Bragg v. Linden Research) and they complain when someone steals their designs (Eros v. Simon). The disputes are different from tangible world disputes in a way that should not be important -- they ALL involve intangible assets. Virtual world disputes can teach us to put tangibility aside and concentrate on other aspects of property rights.

Juliet Moringiello

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Schwarcz on Disclosure and the Subprime Crisis

Steven L. Schwarcz (Duke) has posted Disclosure's Failure in the Subprime Mortgage Crisis on SSRN.  Here's the abstract:

This symposium article examines how disclosure, the regulatory focus of the federal securities laws, has failed to achieve transparency in the subprime mortgage crisis and what this failure means for modern financial securities markets.

Ben Barros

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Border Fence Eminent Domain Issues

A number of disputes have arisen in Texas about the use of eminent domain to take property surrunding the new border fence.  The judge on some of the cases recently ordered the government to negotiate over price with the property owners:

A federal judge has ruled that the government must first try to negotiate a price with a South Texas landowner before seizing her property for the border fence.

The ruling by U.S. District Judge Andrew Hanen late Friday came a month after federal prosecutors argued that immediate access to property was necessary to getting 370 miles of fencing built by December.

Under the ruling, the Department of Homeland Security must provide proof of bargaining with landowner Eloisa Tamez or conduct "good faith" negotiations with her by March 21.

I'm not sure one way or the other about whether the judge's order is justified under the applicable statute, but I've been a big fan of forcing the government to negotiate in good faith before using eminent domain.

Ben Barros

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Buying Peace and Quiet in Yellowstone

The New York Times has an editorial.

Alfred Brophy

Tate on Testamentary Freedom

Joshua C. Tate (SMU) has posted Caregiving and the Case for Testamentary Freedom on SSRN.  Here's the abstract:

Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden than others. Recent econometric studies, not yet taken into account in legal scholarship, suggest a tendency among the American elderly to bequeath more property to caregiving children. A competent testator, rather than a court or legislature, is in the best position to decide how much care each person has provided and to reward caregivers accordingly. Law reform, therefore, should focus on strengthening testamentary freedom while ensuring that caregivers are adequately compensated in cases of intestacy.

Ben Barros

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Ruhl on Ecosystem Services and the ACF Dispute

J.B. Ruhl (Florida State) has posted Equitable Apportionment of Ecosystem Services: New Water Law for a New Water Age on SSRN.  Here's the abstract:

This article examines the interstate water controversy between Florida, Georgia, and Alabama regarding allocation of water in the Apalachicola-Chattahoochee-Flint River Basin (ACF). The three states have been unable after 20 years of negotiation to resolve conflicts between urbanization in Atlanta, commercial uses in Alabama, and ecological protection in Florida. This article proposes that, were the states to seek apportionment of water by the Supreme Court under the Court's doctrine of equitable apportionment, the ecosystem services flowing within the ACF should be an integral allocation factor in deciding the flow regime Georgia and Alabama must ensure enters the Florida portion of the ACF.

Ben Barros

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Asoni on Property Rights and Economic Growth

Andrea Asoni (U. Chicago Dep't of Econ.) has posted Protection of Property Rights and Growth as Political Equilibria on SSRN.  Here's the abstract:

This paper presents a survey of the literature on property rights and economic growth. It discusses different theoretical mechanisms that relate property rights to economic development. Lack of protection of property rights can result in slow economic growth through different channels: expropriation of private wealth, corruption of civil servants, excessive taxation and barriers to adoption of new technologies. The origins of property rights are also considered. Different theories are illustrated but more attention is paid to the "social conflict view" and its strengths and limitations. The second part of the paper illustrates relevant empirical works on property rights and growth.

Ben Barros

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Fennell on Slices and Lumps

Lee Fennell (Chicago) has posted Slices and Lumps on SSRN.  Here's the abstract:

This brief essay, delivered in slightly different form as the 2008 Coase Lecture at the University of Chicago Law School, addresses problems involving the aggregation and division of entitlements. Fragments held by multiple parties - such as parcels of land, effort, or segments of a bridge - often must be assembled together to be worth much. Conversely, a presently unified entitlement may be more valuable if it can be split into separate pieces held by different parties. The essay examines these lumping and slicing problems (which turn out to be two sides of the same coin), shows how they turn up in both interpersonal and intrapersonal contexts, and discusses some tools for responding to them.

Ben Barros

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Is "Intangible" a Property Category?

I think not. I was happy to get a comment on my last post, and the commenter suggested that the category "intangible" will disappear with respect to "virtual" money. I had two thoughts when I read the comment: first, "hmm, isn't all money virtual?" and second, "oh gosh, I need to write another post!"

The question I posed in that last post was "what can virtual property do for property?" and I hope to suggest some answers to that question in this and future posts. One thing that virtual property might do for property is to lure people away from thinking of "intangibles" as a property category. There are many different types of intangible assets, and lumping them together into a single category can impede the development of the law. I explain this point in more detail in my article, "False Categories in Commercial Law: The (Ir)Relevance of (In)Tangibility." Joshua Fairfield took a big step in the right direction when he defined "virtual property" as an asset class in his article, "Virtual Property." In that article, he describes "virtual property" as property that is "persistent, rivalrous and interconnected."

A well-known conversion decision illustrates the problem of viewing tangibility as the defining characteristic of an asset. That decision is the Ninth Circuit's decision in Kremen v. Cohen, 337 F.3d 1024 (2003), the "sex.com case."  In that case, the domain name registrar, Network Solutions, had followed bogus instructions to transfer sex.com (then the most valuable name on the Internet) from its original registrant, Kremen, to Cohen, who had no rights in the name.  Under the applicable California law, an intangible asset can only be converted if it is merged in a document. Therefore, a share of stock evidenced by a paper certificate can be converted, as can a negotiable instrument such as a promissory note. 

Network Solutions had behaved outrageously, and the Ninth Circuit did the right thing in saying that it had converted the domain name. The process by which Judge Kozinski reached that conclusion, however, doesn't do much for the development of property law. To find Network Solutions liable, the court had to find that the name WAS merged in a document. The problem with that approach is that there's no tangible document involved in domain name registration. Registration is completely electronic, and once the name is registered, it goes into the Domain Name System, which is also not only completely electronic, but is also distributed among a number of places. Nevertheless, the court found that sex.com was merged in a document, the domain name system!

Why is the decision in Kremen a problem? Because it focuses on the wrong characteristic of a domain name, its intangibility. By doing so, the court engaged in strange mental gymnastics to find that an electronic, distributed system is a "document" for the purpose of a conversion action. But why is a document so important to conversion anyway? Take a promissory note as an example. A promissory note is a reified right to payment, and that right is commonly transferred by negotiation, which involves physical delivery. If a person takes a note from its rightful owner, that person can exercise control over the payment right, to the exclusion of the rightful owner. In other words, a promissory note is rivalrous.

Likewise, a domain name is rivalrous. When Network Solutions tranferred sex.com to Steven Cohen, Gary Kremen, the rightful owner, could not use it. There can only be one sex.com domain name. The court in Kremen v. Cohen declined to extend the tort of conversion to all intangible assets, which was the right conclusion. But extending it to domain names only because they are "merged in a document" is also wrong. By focusing on intangibility rather then on rivalrousness, the Ninth Circuit missed a great chance to modernize the law to account for emerging electronic rights.

But what do virtual worlds have to do with this? Everything in a virtual world is intangible, but the rights embodied in these intangible assets are as different as the rights embodied in assets in the real, or tangible, world. The two disputes I discussed in my initial post, Bragg and Eros, illustrate this point in a way that a domain name dispute cannot. Bragg, a dispute involving intangible assets, is a conversion case. Linden interfered with Marc Bragg's use and enjoyment of his virtual world assets in the same way that a bicycle thief might interfere with my use and enjoyment of my bicycle. Eros, another dispute involving intangible assets, is an intellectual property case. In that case, Thomas Simon didn't interfere with anyone's use of a sex bed (and no, I will not post about how a sex bed works. Google it); he instead interfered with the right of Eros to make copies of and distribute the sex bed. So virtual worlds, by giving us the opportunity to resolve myraid property disputes, ALL of which involve intangible assets, might help us to clarify our thinking about intangible assets.

Juliet Moringiello

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Epstein at Prawfs

Richard Epstein is blogging at Prawfsblawg about his new book on takings.  Looks to be a very interesting conversation.  Check it out!

Ben Barros

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Lefcoe on Kelo and Blight

George Lefcoe (USC) has posted Redevelopment Takings after Kelo: What's Blight Got to Do with it? on SSRN.  Here's the abstract:

Cities large and small across the country are utilizing redevelopment powers to become land developers, transforming underutilized areas into desirable commercial and mixed use enclaves, improving the appearance of the city and shoring up sagging tax bases. In using their eminent domain powers to assist private redevelopers, local governments open themselves to Fifth Amendment claims that these projects aren't for public uses. After the U.S. Supreme Court opinion in Kelo v. City of New London, state and local government officials need not worry about federal courts declaring anytime soon that their economic redevelopment projects aren't a sufficient "public use" to justify condemning one person's property for another unless the taking can be proved nothing but a sham, a naked pretext for wresting land from one private owner for the exclusive benefit of another. For the usual run of redevelopment projects, the requisite public use can be found either because the taking eliminates blight or proceeds from a comprehensive plan for redevelopment.

This paper begins with a recap of the Kelo Court's attenuated endorsement of comprehensive planning as a way of determining whether a taking of unblighted property qualifies as a public use. Then, the paper sketches the varying ways that states have defined blight to limit the use of eminent domain for redevelopment. Blight prevention was a rationale invoked by supporters of the federal urban renewal program to secure judicial approval in the 1930s and 1940s. Those projects were quite different from most redevelopment projects undertaken after the abolition of the federal program in 1974 and the paper describes the main differences. The blight standard makes less sense under most current types of redevelopment than it did under the early federal renewal programs because blight eradication is rarely what today's redevelopment projects aim to achieve.

In the final section, the paper compares planned efforts at improving the quality of life in the community with "spot" redevelopment aimed solely at pumping up local tax receipts. Objectionable redevelopment enables a favored private firm (often a big retailer) to expand by acquiring land from unwilling neighboring owners. Kelo and some of the Kelo-inspired, state-enacted reforms, would lead courts to prohibit such takings. They don't serve a public use because they are meant simply to assist a particular private firm with its expansion plans in order to enhance the local tax base. The concluding section of the paper suggests how redevelopment agencies could reformulate their narrowly focused tax-motivated projects to comply with the new emphasis on redevelopment planning articulated in Kelo.

Ben Barros

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A Primer on the Subprime Mess

In cartoon form (click through to the power point - be warned that the investment bankers speak in the language they use in real life, which is high on four-letter content).

UPDATE:  It is also available here (click on the "subprime-made-easy" link 1/2 way down).

Ben Barros

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Real Estate Transactions Section Call for Papers

Here is the call for papers for the Real Estate Transactions Section panel for next year's AALS conference.  The Property Section call will come out in the next few weeks.

Call for Papers—Real Estate Transactions in Troubled Times
Joint Extended Program of the AALS Section on Real Estate Transactions and the AALS Section on Creditors’ and Debtors’ Rights

The Section on Real Estate Transactions and the Section on Creditors’ and Debtors’ Rights have proposed a three-hour extended program on “Real Estate Transactions in Troubled Times” at the AALS annual meeting in San Diego on Saturday,  January 10, 2009.  See the program description below.  We are seeking six speakers for this program, with selection to be based on submission of papers.   We are looking for a range of approaches and subjects within the topic. The papers may be in any stage of development, from near final to early works in progress (the minimum is a three-page description of the topic and thesis).   The degree of completion may be taken into account in selection.  We do not plan a law review symposium around the papers, so you are free to submit your papers to any publication.  The deadline for paper submission is April 10, 2008, and selections of speakers will be made by April 24.  Commentators will also be included in the program.  Please submit your paper by e-mail to Jean Braucher at [email protected].  The selection committee members are Professors Daniel B. Bogart of Chapman University, Jean Braucher of the University of Arizona, R. Wilson Freyermuth of the University of Missouri-Columbia, and Katherine Porter of the University of Iowa.   As is always the case with AALS annual meeting programs, presenters must pay their own travel and accommodation expenses, typically with the support of their home institutions.

Program Description:  The national mortgage meltdown and general recessionary pressures have changed the dynamics between buyers and sellers, borrowers and lenders, landlords and tenants, and others involved in real estate transactions.  This program will examine recent developments in both home and commercial real estate transactions.  Although much of the focus to date has been placed on residential mortgages, uncertainties in the market also significantly affect commercial real estate transactions.  For example, commercial property is often now securitized, just as home mortgages are.  When securitized transactions go into default, how can workouts be arranged?  To what extent are statutory changes needed, such as reinstatement and redemption rights, anti-deficiency protection and modification under the Bankruptcy Code?  How can foreclosed properties quickly be recycled to productive uses?  During difficult financial periods, real estate lawyers and debtor-creditor lawyers often find themselves plowing the same fields, with insolvency and bankruptcy planning important to each. 

Ben Barros

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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

Sex Beds and Virtual Land: What can Virtual Property Do for Property?

Thanks for the introduction, Ben! Ben's description of me as someone "who also teaches Property" is just right; I started teaching Property after over ten years of teaching upper-level Property-related courses such as Secured Transactions, Bankruptcy, and Electronic Commerce. My years teaching Secured Transactions piqued my interest in intangible assets, which is what brings me to sex beds and virtual land. Sex beds and virtual land were at the center of two controversies involving the property rights of participants in the wildly popular virtual world, Second Life. In later posts, I'll explain how property rights arise in Second Life, but in this post, I would like to introduce the two disputes, Eros v. Simon and Bragg v. Linden Research.

In Eros, several Second Life merchants sued Thomas Simon, who had been making and selling unauthorized copies of the plaintiffs’ products. The plaintiffs are described in the complaint as some of the most successful merchants in Second Life. Kevin Alderman, the principal of the lead plaintiff, Eros, built the first in-world sex bed and sells a host of adult-themed items, and the other plaintiffs sell items such as virtual clothing, virtual furniture and avatar skins. According to the complaint, the items sold by the plaintiffs are protected by trademark and copyright laws. The defendant copied all of these items and started selling them to Second Life residents himself. All of the objects were marked “no copy” or “no transfer.” These markings make copying theoretically impossible, but there are security flaws in Second Life that enable copying of such objects. The plaintiffs sued for, among other things, copyright and trademark infringement.   

The plaintiff in Bragg wanted to develop "real estate" in Second Life. To do so, he joined Second Life and started to acquire virtual land. A member purchases virtual land with the Second Life currency, Lindens. Lindens can be freely traded, and the Second Life web site includes a currency exchange, the Lindex. Today, $1 equals 265 Lindens. So, Mr. Bragg bought Lindens, and then bought land.

There are several ways to buy land in Second Life, one of which is by auction. Bragg bought numerous pieces of land and then discovered an exploit in the system that allowed him to buy land cheaply. His use of the exploit violated the Second Life Terms of Service, so Linden (the operator of Second Life) terminated his accounts, denying him access to his land and Lindens. Bragg sued Linden, alleging that Linden converted his property.

Both of these matters settled, but they provide property scholars with the opportunity to analyze rights in intangible assets in the context of intangible assets that look and act an awful lot like real property and tangible personal property. More on that next week.

Juliet Moringiello

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Guest Blogger: Juliet Moringiello

I'm delighted that my colleague Juliet Moringiello will be joining us for a guest stint.  Juliet is a cyberlaw and commercial law expert who also teaches property.  Among other things, she will be blogging about virtual property and approaching property from a commercial law perspective.

Welcome, Juliet!

Ben Barros

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