“In Kind” Just Compensation

According to the Hartford Courant, the last two of the Kelo plaintiffs recently reached agreements with the New London Development Corp. over the condemnation of their homes. According to the Courant, Susette Kelo, “agreed to have her pink cottage moved elsewhere in New London.” Pasquale Cristofaro, the other remaining holdout, “agreed to give up his home but is entitled to purchase a new one in the neighborhood at a fixed price if new homes are built.”

I think this final chapter of the Kelo case is very interesting, for a variety of reasons. First, I wonder whether much of this dispute could have been avoided had the city been willing to offer creative deals like this from the start. It’s not clear that such offers would have been fruitful without the looming threat of eminent domain, so perhaps this is just the best deal that Susette Kelo and her co-plaintiffs believed they could get under the circumstances. On the other hand, after the outpouring of public anger in reaction to the Kelo decision in the Supreme Court (fueled in no small part by a brilliant public relations campaign by Scott Bullock and the other folks at the Institute for Justice), there was fairly substantial political pressure on New London to avoid resorting to outright condemnation in this particular case. So the threat of condemnation may not have been all that salient in these negotiations. That makes me think that this may have been a deal that came fairly close to giving Kelo and the other plaintiffs much of what they were looking for from the beginning.

Which leads to my second observation. Why don’t cities use these sorts of creative, in-kind compensation schemes more often (instead of merely providing monetary compensation at market value, or even at some premium on market value)?

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Carving Up Contracts

butcher.jpgI’ve been spending the day carving up my Contracts course. This coming year, Temple, following in the footsteps of many law schools, is transitioning from a two-semester, six-credit, glorious romp through the law of contracts to a one-semester, four-credit, forced march.

This isn’t a data point, it’s a trend. There is an article to be written – perhaps it has been? – about the long, slow, decline of the year-long first year course. While a generation ago, most courses were taught in the year format, today only a few schools have as many as one course taught this way. [I myself had year-long civil procedure and criminal law classes, but we were the only section at school so blessed.] For some reason, until recently contracts had been the holdout. Why? My preferred theory is that the course is uniquely complicated and foundational. Or, you might believe that contracts is so doctrinally incoherent that it demands more attention. Or, perhaps, it was Kingsfield‘s ghost.

So I’m cutting away. First, the fat of the class: cases marbled through with neat applications to other classes, wonderful diversions of history and policy, but not totally dedicated to the project of determining when and how to enforce promises. Tortious interference and the Texaco case? Gone. The restitution interest? Mostly ignored. Farewell as well to agency, third-party bennies, assignment and delegation, duress, incompetency, and infancy.

But that wasn’t enough. So, with a heavy heart, I’ve started to trim closer to the bone. Less interpretation and parol evidence, (much) less consideration, and now barely a touch on relational theory and impracticability. A consolation prize: I get to cut most of my promissory estoppel unit in good conscience. Good riddance!

Of course, I realize that the entire first year curriculum has experienced this loss over time, and law students have reaped compensatory benefits: electives in various subjects, less focus on common law instruction, more skills courses, and a greater variety of teachers in the first year. All to the good. But I can’t help thinking that each of the grand old first year subjects has lost a case (or a facet of its subject matter) to shrinkage, and (as a result, hypothesizes Larry Solum?) some areas of law aren’t getting the scholarly focus they used to. I know it isn’t a big tragedy for law students to graduate without having learned a thing about the infancy defense to a breach of contract action, but just now, as I cut that concept from my notes, it feels like a small one. And I’ve only taught the course twice through. Imagine if I’d gotten really attached!


Shoplifting At Wal-Mart

According to NY Times accounts, Wal-Mart has decided to cut shoplifters a bit of slack. If you’re under 18 or over 65, and try to swipe merchandise under $25 (and it’s your first time being caught by Wal-Mart security), they’ll give you a tough lecture and send you packing. Why the generosity? The article suggests – and this is surely true – that the local infrastructure (i.e., the cops and local prosecutors) don’t like to foot the bill for enforcing shoplifting laws. This raises some interesting questions. First, should shoplifting be a crime? Probably, if only because if allowed to grow, it would (in aggregate) devastate retailing. Second, who should bear the cost of shoplifting enforcement? Perhaps the right answer is the retailer. Offenders are the logical payors, but they are often too poor to bear actual costs. And while society at large could pay the cost (and does, right now), it seems to me that it would be easier to impose the tax on the retailer. Why? Because, in many respects, the retailer is in the best position to reduce theft. Cameras, good layout, ever-present security all help reduce attempted thefts. If stores see that they save more than mere shrinkage by stopping shoplifting, perhaps they’ll introduce those preventive steps.

In my experience, shoplifting cases are a major source of docket junk in criminal courts. DA’s typically don’t care much about them. The victims – and there are real victims – are mostly corporations, and these corporations don’t get exercised like other victims. To the DA, the company’s face is the security guard who shows up to testify – and he or she is usually a low-paid worker bee who doesn’t much care the outcome of the case.

Sounds to me like Wal-Mart is just trying to get along better with the local community. Perhaps they should talk to Target, a leader in the national fight against crime, for tips.


Red Herrings in the Defense of Liberty Are No Vice

Today’s Washington Post contains an article on the upcoming congressional debate over the procedures to try Guantanamo enemy combatants that features this trope that I’ve seen or heard several times in the past few days:

“I don’t want a soldier when he kicks down a door in a hut in Afghanistan searching for Osama bin Laden to have to worry about . . . whether he’s got to advise them of some rights before he takes a statement,” [DOD Dep. GC Daniel] Dell’Orto said. “I don’t want him to have to worry about filling out some form that is going to support the chain of custody when he picks up a laptop computer that has the contact information for all manner of cells around the world, while he’s still looking over his shoulder to see whether there’s not an enemy coming in after him.”

House Armed Services Committee Chairman Duncan Hunter says the same thing later in the article, and Sen. John Cornyn repeated that idea on Tuesday on the NewsHour. My question: Where is this idea coming from? There’s nothing in the Hamdan decision, as far as I can tell, that even remotely touches on domestic criminal procedure rights being applied to the battlefield. If I’m reading Hamdan correctly, this is beyond a slippery slope argument, it’s digging a trench and then pointing to the slope.


The Cruel Irony of Property Rights


I have an acquaintance who is working on Ph.D. in early American history. Her dissertation is on the institutional ownership of slaves, and a recent conversation with her has gotten me thinking. Focusing her research on Virginia, she has found that slave owning by churches was quite wide spread. Apparently this was mainly an Episcopalian and Presbyterian thing. (Methodists and Baptists were less enthusiastic.) Then, as now, the wealthy would often make bequests of property to churches, mainly for the support of ministers. Also, churches would sometimes purchase slaves as a way of investing their endowments. The interesting question is whether or not being owned by a religious corporation made a slave better or worse off.

I confess that when I first heard about this, I was hoping that the answer would be that slaves were better off by being owned by churches. I was hoping that Christian notions of charity would have played at least some role in how slaves were treated, and that the churches would have ameliorated the injustice of owning slaves with some humanity. Not so. The answer, however, has less to do with the ideological failure of Christian charity — although that seems to have happened to be sure — than with plain old fashion property rights. In most congregations, church property was not controlled by the minister but by the vestry, a committee of powerful members of the congregation. The minister was often simply a salaried employee who served at the pleasure of the vestry. The vestry, in turn, tended to be cheap. They weren’t always excited about expending scarce church funds of things like doctors for injured slaves or other expenditures to ameliorate their condition. In particular, when a church owned slaves but lacked the capital to provide for them, it was sometimes extremely difficult for the vestry’s to raise funds for slave-related expenses. In contrast, slaves that were privately owned were regarded as an expensive investment that many owners were unwilling to wantonly harm through a false economy. In short, institutionally owned slaves where quite literally victims of the tragedy of the commons.

In a cruel irony, clearer property rights in human beings in this case seems to have improved their material condition.


Signing Off…

Many thanks to the fine folks here at Co-Op for inviting me to guest-blog. My time is coming to an end. I’ve enjoyed it; hope you have too. Drop by my solo blog, IsThatLegal, and say hello sometime.


Data Security Laws, the States, and Federalism

Remember well over a year ago, when last February ChoicePoint announced it had a major data security breach? Since then hundreds of breaches have been announced — over 200 instances involving data on 88 million people. Several bills were proposed in Congress; many Senators and Representatives quickly emphasized the importance of privacy and data security. And after all this time, what has Congress produced? Nothing.

Meanwhile, the states have been very busy. 31 states have passed data breach notification laws. 24 states have now passed credit freeze laws, which allow people to lock their credit files to prevent unauthorized activity.

The stateline.org website has a terrific chart of the states that have enacted data security laws, which is below in smaller form. Visit the stateline website for a larger view.


I never used to be a fan of federalism, but in following information privacy law, I’ve found that the states are by far more responsive to problems, more flexible and experimental in solutions, and more able to get things accomplished. Substantively, the states have also established a better balance between privacy and business interests than Congress.

The bills kicking around in Congress would preempt many of the state laws discussed above. Ironically, that is what might make Congress finally do something in response to the data security breaches. Companies afraid of an orgy of state laws are pushing Congress to act — not to protect privacy, but to wipe the board clean of state regulation and replace it with a weaker less-protective federal standard all in the guise of helping to “protect” our privacy.

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Who’s Your Daddy?

The New York Court of Appeals has held that:

[A] man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment. We reach this conclusion based on the best interests of the child as set forth by the Legislature.


The case is Matter of Shondel J. v. Mark D.

The opinion indicates that under New York law the doctrine of estoppel in paternity matters focuses on the child and as such is gender neutral. The court demonstrated this neutrality by citing to a case where a wife was not allowed to challenge paternity when she had treated and accepted the husband as the father for two and half years before challenging his paternity and “permitted her husband and child to form strong ties together.”

The court also noted that when a man “acquiesced in the establishment of a strong parent-child bond between the child and another man” he would be precluded from asserting paternity because “the child would be harmed by a determination that someone else is the biological father.”

This case reminded me of Jared Diamond’s, The Third Chimpanzee. In that book he noted that one study indicated that 10% of babies in the study were not biologically related to the legal father. One blog has dug into the mistaken paternity numbers issue and lists several studies before concluding that the rate may be closer to 2-4%.

By the way one study seems to show that when a father is pretty certain about paternity the rate of finding non-paternity is low (median 1.7%) but when the father has questions about paternity the rate is high (median 29.8%). The full paper is How well does paternity confidence match actual paternity? Evidence from worldwide nonpaternity rates by Kermyt G. Anderson.

Which bring us to the dissent in the case. Judge Smith argues forcefully that the evidence shows that the mother lied and committed fraud (she swore she did not have sexual relations with any other man) and that the ostensible father did not commit a fraud of any sort and as such should not be subject to the doctrine. The argument denies the majority’s position that the child is the one upon whom the fraud is committed.

The majority opinion countered the dissent by putting the problem this way:

Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings — to serve the best interests of the child.

Thus it seems that if someone is in that high doubt range that Anderson documents, he should ask for a paternity test and risk his relationship with his wife.

I do not claim to have an answer here. I am merely teeing this one up to see what comments if any can enlighten me on the issue of when paternity should be found despite a lack of biological connection between the father and child.