Saturday, February 27, 2010

One Candidate's Experience in the AALS Hiring Process

Thanks Ben for the re-introduction.  I’m looking forward to blogging about my efforts to prepare for my first year of teaching Property and Real Estate Transactions as well as other substantive topics.

But first, I thought I’d share a few impressions about the AALS faculty hiring process, assumptions, and reality.  (after the jump)

Continue reading

February 27, 2010 in Law Schools | Permalink | Comments (22) | TrackBack (0)

Friday, February 26, 2010

New York and Blight Takings

At the City Journal, Nicole Gelinas has a good article on takings under New York's overbroad definition of blight.  Whether or not you favor this kind of economic development taking, doing it under a blight justification strikes me as completely dishonest.

H/T:  Ilya at the VC.

Ben Barros

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February 26, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, February 25, 2010

Barros on Human Behavior, Evolution, and the Biology of Possession

I've just posted Human Behavior, Evolution, and the Law: the Case of the Biology of Possession on SSRN.  Here's the abstract:

Possession is a foundational idea in property law. Recent scholarship has suggested that respect for possession may be an innate aspect of human behavior. Jeffrey Evans Stake argued in 2004 that there is an evolutionary basis for an instinct to respect possession. More recently, Ori Friedman and Karen Neary have published the results of psychological studies suggesting that both adults and children tend to associate prior possession with ownership. These studies suggest that the respect for possession that is at the center of our property law may be consistent with – and, indeed, may have its basis in – basic human behavioral tendencies.

In this Essay, I consider the relevance of this behavioral research to normative issues in property law. Along the way, I discuss the broader issue of the potential relevance of biological facts about human behavior to the law. I argue that facts about actual human behavior, like those discussed in Friedman & Neary’s research, are potentially relevant to property and other legal issues. In contrast, I argue that evolutionary arguments like those made by Stake are not relevant to property or other legal issues. I criticize Stake’s evolutionary argument on two levels. First, I argue Stake’s evolutionary claims lack evidentiary support and fail to connect in subtle but important ways with substantive property law. Second, drawing in part on arguments recently developed by Brian Leiter and Michael Weisberg, I argue that evolutionary facts, even if scientifically well founded, have little or no relevance to normative legal issues, in property or otherwise.

Ben Barros

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February 25, 2010 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Florida International Seeks Visiting PropertyProf

Florida International University College of Law invites applications from candidates for one or more visiting faculty positions beginning in Fall 2010. Areas of curricular preference include Property, Criminal Law, Torts, Environmental Law, And Trusts and Estates. Visits could be for either the fall or spring semester or for the full year.


Part of Miami's public research university, the College of Law is a dynamic urban law school with approximately 600 students. FIU College of Law was established in 2000, enrolled its first class in 2002, and currently has 30 full-time faculty members. In the spring of 2007, the FIU College of Law moved into a new state-of-the-art building at the heart of the main university campus. Over the past two years, our FIU on-campus community has been enriched through the addition of a new medical school and the construction of the Frost Art Museum.

The FIU community and the College of Law are strongly committed to the pursuit of excellence and the goal of ensuring opportunities within the legal profession for individuals who represent different groups as defined by race, ethnicity, gender, sexual orientation, socioeconomic background, age, disability, national origin, and religion.


Applicants should have a J.D. degree; applicants with additional advanced degrees are also encouraged to apply. Applicants must possess a strong commitment to teaching and a record or the promise of outstanding scholarship. Applicants interested in joining the FIU College of Law faculty as a visiting faculty member should send a cover letter expressing interest and a resume to:

CONTACT:    Associate Dean Joelle Moreno
                    Chair - Faculty Appointments Committee
                    Florida International University
                    College of Law
                    11200 S.W. 8th Street
                    Miami, FL 33199

     You may also send application materials electronically to

     Email:         [email protected]


     For more information, please visit our website at:


Florida International University encourages applications from candidates who would continue to enhance the diversity of our College of Law faculty and university community and does not discriminate on the basis of race, color, national origin, ancestry, sex, disability, religion, age, sexual orientation or veteran status in its education and employment programs or activities. FIU is also a member of the State University System and an Equal Opportunity, Equal Access, Affirmative Action Employer.

February 25, 2010 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 23, 2010

Nancy McLaughlin on Conservation Easements

Thanks to Nancy McLaughlin (Utah) for providing the post below.  As many of you are aware, Nancy is a leading expert on conservation easements.  She isn't actually a PropertyProf, but we won't hold that against her.

Ben Barros

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February 23, 2010 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Wyoming Attorney General Prevents the Wrongful Termination of a Perpetual Conservation Easement

After over six years of litigation, a case involving a Wyoming county’s attempted termination of a perpetual conservation easement has settled, with the conservation easement remaining in full force and effect on the burdened land.


In 1993, Paul and Linda Lowham donated a conservation easement as a tax-deductible charitable gift to the Board of County Commissioners of Johnson County, Wyoming, for the purpose of preserving and protecting in perpetuity the conservation values of a 1,043-acre ranch located in the county. The Lowhams claimed a large federal charitable income tax deduction based on the estimated value of the easement. The Board later transferred the easement to the Scenic Preserve Trust, a § 501(c)(3) organization created and governed by the Board.

In 1999, the Lowhams sold the land, subject to the perpetual easement, to the Dowds. The Dowds were aware they were purchasing the land subject to a perpetual conservation easement. The Dowds were also aware that a third party owns the minerals underlying the land and, as is common in the west, the third party has the right to reasonable access to the surface of the land to extract its minerals. When an energy company later prepared to drill for coalbed methane on the land, the Dowds requested that the Board terminate the conservation easement. The Board passed a resolution in which it agreed to do so, and then executed a quitclaim deed transferring the conservation easement to the Dowds for purposes of terminating the easement. The Board received no compensation for the termination of the easement, and no determination was made that the mineral development had or would render the continued protection of the land’s conservation values “impossible or impracticable.”

In 2002, a resident of the county, Hicks, filed suit alleging, inter alia, that the Board breached its fiduciary duties to both the easement donor and the public by agreeing to terminate the conservation easement without court approval obtained in a cy pres proceeding. Hicks also argued that the minimal drilling that had occurred on the property had not rendered continued protection of land’s conservation values impossible or impractical. As it turned out, the ranch was not a good place for coalbed methane development, and the impact of the limited drilling on both the conservation and development values of the land was minimal. The Wyoming Attorney General was notified of this case and given the opportunity to intervene, but declined to become involved, explaining that “the interests of the public, as the beneficiaries of the conservation easement,” were already being represented by the litigants.

In 2007, the Wyoming Supreme Court dismissed Hicks’s case on the ground that Hicks, a mere resident of the county, did not have standing to sue. The court, however, invited the Wyoming Attorney General, as supervisor of charitable trusts in the state of Wyoming, to reassess his position with regard to the case. See [Hicks v. Dowd, 157 P.3d 914 (Wyo. 2007)]. For an NPR story on the case up to this point, see

In the summer of 2008, the Wyoming Attorney General responded to the Wyoming Supreme Court’s invitation and filed suit against the Board and the Dowds. Like Hicks, the Wyoming Attorney General argued that the Board had violated its fiduciary duties by agreeing to terminate the conservation easement without court approval obtained in a cy pres proceeding. The Attorney General requested that the Board’s attempted termination of the conservation easement be declared null and void. The Attorney General and some conservation organizations were also concerned that the Board’s actions, if upheld, could render conservation easements in Wyoming nondeductible. Federal tax law requires that the conservation purpose of a tax-deductible conservation easement be “protected in perpetuity.” I.R.C. § 170(h)(5)(A). For their part, the Dowds argued that “[t]here is nothing special about a conservation easement when it comes to termination,” and that conservation easements can be modified or terminated by simple agreement of the then owner of the land and the government or nonprofit holder of the easement. 


While the Motions for Summary Judgment in the case were pending, the parties to the case agreed to settle. On February 10th, 2010, the District Court Judge signed a Stipulated Judgment [Download Stipulated Judgment Salzurg v Dowd] approving the settlement, which declares that:

(i) the resolution passed by the Board was of no legal effect insofar as it purported to authorize the Board to transfer the conservation easement to the Dowds;

(ii) the Board’s quitclaim deed purporting to transfer the conservation easement to the Dowds was null and void and of no effect; and

(iii) the original deed of conservation easement remains in full force and effect with minor amendments as set forth in the Judgment. See [Stipulated Judgment]

The settlement represents a victory for the Wyoming Attorney General as well as the public, which is investing heavily in what it assumes are perpetual conservation easements. It also represents a victory for conservation easement donors, who are willing to significantly reduce the value of their land in large part because of a strong personal connection to—and the promise of permanent protection of—that land.

For a recent article discussing the case and including relevant portions of the Wyoming Attorney General’s Motion for Summary Judgment as an Appendix, see Nancy A. McLaughlin & W. William Weeks, Hicks v. Dowd, Conservation Easements, and the Charitable Trust Doctrine: Setting the Record Straight, 10 Wyo. L. Rev. 73 (2010) [Available at].

Nancy McLaughlin

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February 23, 2010 | Permalink | Comments (0) | TrackBack (0)

A Different Kind of "Self-Help"

Over at PrawfsBlawg, Jack Chin (Arizona) has an interesting post (complete with links) about a man who bulldozed his house to keep the bank from foreclosing on it.

Mike Kent

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February 23, 2010 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

World's Most Expensive Virtual Object

It has been a while since we've blogged here about virtual property. has a story about a 27-year-old graduate student from Australia who paid $26,500 for an island in the virtual world Entropia.  It seems like a good deal for him -- he apparently makes over $100,000 per year off of the island.

Thanks to my student Ulysses Wilson for the pointer.

Ben Barros

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February 23, 2010 in Intellectual Property | Permalink | Comments (1) | TrackBack (0)

Monday, February 22, 2010

Property Theory and HBO's Deadwood (part 3)

In previous posts, I discussed some of the Lockean ideas about property reflected in HBO's television series Deadwood.  In this post, I'd like to focus on what the show suggests about the tensions that arise when property rights acquired in a state of nature meet the regulatory force of positive law.

If the first season of Deadwood helps demonstrate, however imperfectly, Lockean ideas about property and the social compact, then the second season suggests what might happen when the social compact actually begins to take shape.  As I mentioned in my second post in this series, uncertainty about the future prompts Deadwood to seek out some type of formal government to better secure its rights.  Although this decision initially has an air of insincerity about it, there seems to be an understanding on the part of both those inside and outside the camp that some type of government must come.  Deadwood’s residents reluctantly acquiesce to this realization as the best hope for securing their property and, with it, their freedom.  Those outside of Deadwood, however – those on whom the promise of stability and government ultimately depend – have different understandings.

The second season of the show revolves in large part around the actions of two newcomers to the camp -- a representative of the Dakota territory and a geologist employed by notorious gold tycoon, George Hearst.  In many ways, these two characters and the actions they take can be viewed as representing a more positivist outlook than is revealed by Deadwood’s leaders.  Where the initial residents look back to days when the first few settlers fashioned the camp out of the surrounding wilderness, these newcomers see the camp’s future as a part of the Dakota Territory and the United States, with all of the social implications that such a relationship entails.  As Season Two unfolds, the viewer learns that both men are corrupt exploiters of the first order, and it is clear that getting the camp’s gold into their hands (or the hands of those whose bidding they do) is of primary importance.  But this shouldn’t completely overshadow the larger reality.  Once legitimated, Deadwood will serve several important social functions, from a strategic military outpost to a burgeoning center of “civilization” in the heart of Indian country.  And the gold, too, will serve important functions, bolstering the financial stability and influence of the territory, serving as a catalyst for investment and economic activity, and providing the means by which the camp might indeed be transformed into a town.  For these outsiders, the gold in Deadwood ultimately means progress.  Thus, with the prospect of law still in nascent form, the gold to which the camp owes its existence is evolving from a thing acquired by the hard work of autonomous individuals to a complex engine of social change and transformation.  In short, property becomes less about the relationship of a person to a thing than about social relationships between a person and other people.

For this transformation to take place, however, the property rights in the gold must be susceptible to redefinition so as to accommodate the new order.  In this regard, the territorial representative posts a public notice in the camp containing classic doublespeak:  in one sentence, it indicates that the preexisting gold claims will be presumed valid, while in the next sentence, it says that presumption is subject to qualification by the territorial officials.  Although it seems to acknowledge Deadwood’s preexisting property regime, the notice really suggests that any rights acquired under that regime are subject to alteration by the territorial government.  Property, in this view, is not some indissoluble right of the natural order.  Rather, echoing a positivist viewpoint, the notice implies that property is a construction of the law that is designed to meet specific societal contexts.  As those contexts change, so too does property.  Property is, in other words, a bundle of legal rights, the existence and definition of which depend on how the law is structured and restructured over time.  In this view, as the unruly mining camp of Deadwood transforms into a civilized member of the Dakota Territory, it is only to be expected that the rights and relationships that make up the bundle will undergo some transformation as well.

To some degree, this seems to be a natural outworking of Locke’s social compact.  Once individuals consent to unite in political society, they necessarily must be viewed as surrendering some of the privileges and freedoms they enjoyed apart from that society.  Locke himself noted that once an individual consents to government, he also submits his person and possessions to the positive legislation adopted by that government.  “[I]t would be a direct contradiction,” Locke wrote, “for anyone to enter into society with others for the securing and regulating of property; and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government, to which he himself, the proprietor of the land, is subject.”   To escape the evils presented by the state of nature, one must give up some of the freedoms of the state of nature; to do otherwise would be a denial of the social compact itself.  Applied to our story, if Deadwood wants the benefits of territorial membership, then it must live by the rules the territory promulgates, including those regulating property.

The independent residents of Deadwood naturally chafe at this idea, and their discomfort is only made worse by the machinations of the two newcomers, who use the law not only to regulate the prior relationships but to turn them completely on their heads.  The threat posed by the notice creates panic and further instability in the camp, facts that the geologist exploits to work a redistribution of the gold claims for his employer, Hearst, at a fraction of what they would be worth in a more settled market.  And as the gold steadily changes hands, the balance of power in Deadwood starts shifting.  More on that, and what the show suggests about the relationship between property and power, in the next post.

Mike Kent

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February 22, 2010 in Property Theory | Permalink | Comments (3) | TrackBack (0)

Sunday, February 21, 2010

Marsh to Wake Forest

Tmarsh Tanya Marsh, who has blogged with us before, will be joining the faculty of Wake Forest this fall.  Congrats!  Tanya will also be blogging with us again, and may have some things to say about every law prof's favorite topic, the AALS hiring process.

Ben Barros

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February 21, 2010 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Saturday, February 20, 2010

Commercial Landlord-Tenant Dispute

From today's Tuscaloosa News comes news of a sentence for menacing that followed a dispute between a landlord and his tenant, the operator of a restaurant, over property at the restaurant.  Those of you who teach Berg v. Wiley may find this story helpful in illustrating the hard feelings that sometimes develop between landlords and their commercial tenants.  The landlord in this case remains defiant.  The payoff quote from the landlord: "From my cold, dead hands will you take my right to bear arms, and when I’m laying on the ground taking my last breath will you take my property rights.” Alfred Brophy

February 20, 2010 | Permalink | TrackBack (0)

Thursday, February 18, 2010

Adverse Possession as Public Service (and Should Intent Really Matter)?

An interesting story in yesterday's Tampa Tribune tells the tale of a man who has been renting out houses he doesn't own.  Apparently, his modus operandi has been to find vacant homes (usually in or heading for foreclosure), fix them up, change the locks, and rent them out to tenants.  He also files a "Memorandum of Adverse Possession" for the properties with the county clerk.  All was well, it seems, until a real estate agent (who also happens to be a part-time deputy sheriff) attempted to show one of the homes being possessed.  This led to an investigation, after which, the man was arrested for fraud.  His defense:  he was within his legal rights under the law of adverse possession, which he was utilizing in a good faith effort to clean up blighted neighborhoods, provide affordable housing, and stabilize the housing market.  He also claims that he "ran the idea by a few lawyers," who allegedly told him it was a "gray area" but didn't tell him not to do it.

In addition to the fascinating facts, the story is also interesting from a doctrinal standpoint.  The man's defense, whatever its merits, is that his actions were taken with pure motives to do public good.  The local sheriff, when responding to this claim, also spoke in terms of intent, describing the law of adverse possession as only protecting people who possess others' land mistakenly .  This, of course, raises the well-worn question of whether adverse possession should be based on the subjective intent of the possessor (and if so, in what way), or whether objective possession (regardless of intent) should be enough.  For those interested in the competing theories of how to answer the question, as well as its relation to the abandonment of real property, two recent papers (an article and a student note) should provide a good place to start.  See Lior Jacob Strahilevitz, The Right to Abandon, 158 U. Penn. L. Rev. 355 (2010) (SSRN link is here) and Christopher H. Meredith, Note, Imputed Abandonment:  A Fresh Perspective on Adverse Possession and a Defense of the Objective Standard, 29 Miss. C. L. Rev. 257 (2010).

Mike Kent

P.S.  Thanks to Stetson Law students Leighton Hyde and James Kannard for bringing the story to my attention.

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February 18, 2010 in Property Theory | Permalink | Comments (2) | TrackBack (0)

Tuesday, February 16, 2010

Possible empirical study on subjective value

A number of recent newspaper articles about the approaching end of several government programs that attempted to re-inflate the housing bubble (by subsidizing mortgages, buying up mortgage securities, etc.), and of the continuing phenomenon of "upside down" mortgages suggests to me the possibility of a great empirical work for property.

For many years, it has been commonplace in our profession to presume that there is a very large premium that people put on their home ownership. In the takings literature, we refer to this as the surplus subjective value, and it means the extra value that people attach to ownership/possession of their particular home, above and beyond market value.

Today there is huge number of "upside down" properties, in which the excess due on mortgages exceeded the market value of the houses. The number of upside-down properties will doubtless rise as the government reduces efforts to re-inflate the bubble. Since most states make mortgage loans non-recourse, owners of upside-down properties can voluntarily default on their mortgages and and wipe out the entire debt. In other words, we now have a vast number of cases where people have to choose between staying in the house (keeping the subjective value of the house) or walking away (losing the subjective value but getting the value of the wiped-out indebtedness, less the costs of lower credit score).

Collect the numbers, and compare. If you get a big enough database, you should begin to get some indications of how large the surplus subjective value is, at least on average. No, this is not a perfect measure. But it seems like a potentially interesting start.

Avi Bell

February 16, 2010 | Permalink | Comments (3) | TrackBack (0)

Of Easements, Trespass, and Fences in the Street

The St. Petersburg Times ran a story last week that presents some interesting issues related to the law of easements, private rights of way, and trespass.  Apparently, a disagreement among some neighboring landowners has resulted in one of them constructing a fence down the middle of a road, which the landowner claims is actually her property.  The case looks like it may end up in trial, with cross-claims of easements and trespass likely (not to mention a whole lot of angry residents in the area who are now driving home on a one-lane road).  I smell an exam question in the making!

Mike Kent

P.S.  Thanks to Stetson Law student Quincy Bird for bringing the story to my attention.

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February 16, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, February 12, 2010

Public Housing

Several days ago, the Several days ago, the New York Times reported on the New York Housing Authority's plan to tear down the Prospect Plaza public housing project in Brooklyn. According to the paper, the project will be replaced by "public and private housing, not only for the poor but also for low- and moderate-income families ... in low-rise buildings."

The interesting angle here is not the demolition itself. As the story notes, "[s]ince the 1990s, public housing high-rise buildings have come tumbling down by the dozens across the country"; "Philadelphia tore down 21. Chicago leveled 79. Baltimore took down 21 as well, and when 6 of them came down in one day in 1995, it threw a parade."

No, the interesting part here is the rarity of such events in New York. "New York City has long been the great exception." This will be the first New York demolition of a an entire  public housing project. According to the Times, to date, the New York Housing Authority has only knocked down a handful of high-rises.

My view of public housing is largely shaped by my knowledge of Chicago's public housing. I find it difficult to imagine the circumstances in which state-owned, -constructed and -operated housing stock is a good response to homelessness and poverty or an efficient utilization of realty. I have the instinct to dismiss New York's refusal to abandon public high-rises as another peculiar political desire --- one as misplaced as New York's refusal to finally do away with rent control (and rent-stabilization in the idiosyncratic New York nomenclature). But I haven't researched the issue enough to know whether I'm missing something here. Am I?

Avi Bell

February 12, 2010 | Permalink | Comments (3) | TrackBack (0)

Thursday, February 11, 2010


Thanks to Ben for giving me this opportunity and for the warm words of welcome.

Avi Bell

February 11, 2010 | Permalink | TrackBack (0)

Property Theory and HBO's Deadwood (part 2)

In my last post, I noted how HBO's television series Deadwood reflected a Lockean concept of property.  The mining camp of Deadwood exists in a state of nature without organized government, but property nonetheless exists, recognized initially because of the labor of its "owners."  Even so, a shadow looms over Deadwood, placing the property rights of its residents in jeopardy.

Deadwood owes its existence to the nearby gold mines, and it is this proximity to gold that threatens Deadwood's survival.  Both the camp and the gold claims rest on land that legally belongs to the Sioux, but the discovery of the gold has prompted the federal government to begin negotiating a new treaty that will cede the land to the United States.  The prospect of cession has watered the mouths not only of other settlers and prospecters, but also of the powers that be in the nearby Dakota and Montana territories.  Talk of annexation into one of these territories (especially Dakota) is prevalent, and territorial officials seem ambivalent toward the property claims of Deadwood's current residents.

Thus, Deadwood finds itself in a situation where its property and freedom are threatened by the very autonomy and lack of government that served as a draw to most of its early settlers.  This, too, reflects Locke's philosophy, which posited that rights held in the state of nature are "constantly exposed to the invasion of others" due to the lack of formal enforcement mechanisms.  And Deadwood's residents respond to these threats in Lockean fashion -- by organizing a government of sorts to better protect their previously-acquired property interests.  At a meeting of the elders, the de facto leader of the camp tells the others that they need an "informal municipal organization" complete with "titles and departments" to help ward off the possibility that the territorial officials will appoint a government of "their cousins to rob and steal from us."  The hope is that having its own government in place will assist the camp in reaching a favorable peace with the outsiders that may seek to do it harm.   Although there is a lack of true desire for real government, the residents reluctantly acquiesce to a modicum of government for the purpose of protecting what they already have (chiefly, their property).  Reflecting on the prospect of government and civilization coming to Deadwood, one resident comments, "I'd settle for property rights," suggesting that the primary reason to have the former is to ensure protection of the latter.

Once this decision to organize is made, however, it is clear that law will soon be coming to Deadwood.  And the impending presence of formal laws and institutions will test the labor-based view of property around which the camp has been structured.  More on that in a later post.

Mike Kent

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February 11, 2010 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

Entering the Blogosphere

I want to thank Ben for allowing me to guest blog this semester.  I should give a disclaimer going in however.  I'm afraid that my blogs may be nothing more than rehashing old (perhaps eternal) questions regarding teaching property.  My goal is to blog as soon as possible after class to put down some of my thoughts/successes/failures on what I covered that day.  I will have some catching up to do in this regard.  At MCSOL property is a four hour course that is taught in the spring semester.

Perhaps I should not admit this in my first post -- one of my primary motivations for blogging is for input from others.  So if I say something and someone disagrees or has a better idea about how to cover the topic -- I'm interested to hear. --donald

February 10, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 9, 2010

Second Hand Smoke Lawsuit Against ... A Real Estate Agent

This has the makin's of a final exam question.

The UPI story begins: "A real estate broker faced a lawsuit Tuesday accusing him of misleading a condo buyer about second-hand smoke in the building, court watchers say."  Read the rest here.

The Boston Globe has a longer story here.

Alfred Brophy

February 9, 2010 | Permalink | Comments (1) | TrackBack (0)

Avi Bell Guest Blogging

Avi Bell I'm delighted that Avi Bell (San Diego) will be joining us for a guest blogging stint.  I've long been a fan of Avi's work, and I look forward to his posts.

Ben Barros

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February 9, 2010 in About This Blog | Permalink | Comments (0) | TrackBack (0)