‘A primer on selling haunted houses and other stigmatized property’

This photo provided by Twentieth Century Fox shows, Kennedi Clements as Madison Bowen, reaching out to apparitions that have invaded her family’s home in a scene from the film, "Poltergeist." (Twentieth Century Fox via AP)

Kennedi Clements as Madison Bowen, reaching out to apparitions that have invaded her family’s home, in a scene from the film “Poltergeist.” (Twentieth Century Fox via Associated Press)

Apropos of yesterday’s post on the subject of haunted house law, see Marc Ben-Ezra and Asher Perlin’s article on the subject, though it’s more focused on past murders in the home — or past inhabitants’ having had AIDS — rather than just on hauntings. An excerpt (some paragraph breaks added):

“[S]tigmatized property” … has been defined as “property psychologically impacted by an event which occurred or was suspected to have occurred on the property, such event being one that has no physical impact of any kind.” …

When can a buyer complain that the property is stigmatized and rescind a contract or state a cause of action on that basis? How would a buyer react upon discovering the house he or she had agreed to buy had been the site of a gruesome murder or suicide? What if the previous occupant suffered from HIV or AIDS? What if the house were haunted?

These are serious questions — even the last one. At least one court recognized that a purchaser stated a cause of action to rescind the contract when she discovered that a woman and her four children were murdered in the house. Reed v. King, 193 Cal. Rptr. 130 (Cal. Ct. App. 1983). In another case, buyers tried to rescind the purchase contract when they learned that the previous owner died of AIDS. Kleinfield v. McNally (N.Y. Co. Sup. Ct., July 15, 1988). In addition, a New York appellate court allowed a purchaser to rescind his contract on a property when he ascertained that his new house was widely reputed to be possessed by poltergeists. …

At least 21 states have adopted statutes speaking to stigmatizing issues in one way or another.

As you might gather, courts and legislatures are concerned not only about the emotional distress a particular buyer may or may not feel when he learns of the house’s “stigma,” but also about the lower resale value stemming from future prospective buyers’ reactions, rational or not. In any case, an interesting article.

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Academia’s rejection of ideological diversity has consequences

Nearly every institution of higher education champions diversity. There are good reasons for this.  Diversity of viewpoints, perspectives and experiences can enrich educational environments and facilitate critical examination of complex issues. Yet some forms of diversity are clearly more important to academic institutions than others.

Arthur C. Brooks writes in the New York Times:

Scholarly studies have piled up showing that race and gender diversity in the workplace can increase creative thinking and improve performance. Meanwhile, excessive homogeneity can lead to stagnation and poor problem-solving.

Unfortunately, new research also shows that academia has itself stopped short in both the understanding and practice of true diversity — the diversity of ideas — and that the problem is taking a toll on the quality and accuracy of scholarly work.

The ideological imbalance that pervades academia fosters groupthink and undermines critical thinking. The dominance of left-leaning perspectives in academic institutions compromises their commitment to open inquiry and effective education.

Among other things, liberals and conservatives alike can fall prey to motivated reasoning and confirmation bias. One benefit of ideological and viewpoint diversity is that it can provide a check on such tendencies. Writes Brooks:

But even honest researchers are affected by the unconscious bias that creeps in when everyone thinks the same way. Certain results — especially when they reinforce commonly held ideas — tend to receive a lower standard of scrutiny. This might help explain why, when the Open Science Collaboration’s Reproducibility Project recently sought to retest 100 social science studies, the group was unable to confirm the original findings more than half the time… .

Brooks cites a recent paper from the journal Behavioral and Brain Sciencesdocumenting the causes and effects of the lack of ideological diversity in social psychology. While a large number of factors contribute to ideological imbalance, the authors cite evidence that conscious bias is among them.

The lack of ideological diversity is a particular problem for law schools as it leaves many law students unexposed to perspectives and arguments with which they will have to contend in the practice of law. Most legal academics are well to the left of those whom law students will represent, as well as to the majority of judges before which they will practice. One need not agree with one’s client or a judge to be an effective advocate, but it is important to understand the perspective of the position one has to represent — as well as the perspective of the other side. The best legal advocates fully comprehend the strongest arguments for the other side and are able to present arguments that can appeal to decision-makers who may approach difficult legal questions from a perspective quite different from their own. On many issues, however, the perspectives of legal academics are relatively monolithic and reflect little understanding of (let alone sympathy for) common right-of-center viewpoints.

Brooks concludes:

Improving ideological diversity is not a fundamentally political undertaking. Rather, it is a question of humility. Proper scholarship is based on the simple virtues of tolerance, openness and modesty. Having people around who think differently thus improves not only science, but also character.

This is true, but there is relatively little evidence that most institutions of higher education much care, and even less that they are doing anything about it.

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GoGo squeeZ Apple Sauce Recall

Materne North America, the manufacturer of GoGo squeeze has announced a voluntary recall of its popular line of squeezable apple sauce packages. The manufacturer has found that a recent production batch of the applesauce developed mold in the packaging. They describe the mold as common, stating that it is similar to “what can form on… [Continue Reading]

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Wrenn history

A few weeks ago, I joined several legal historians in filing an amicus brief about the Second Amendment right to carry arms; the case is Wrenn v. District of Columbia, currently before the D.C. Circuit. The brief addressed English legal history, and also American legal history through the 19th century. Stanford history professor Priya Satia has written an article in Slate , asserting that our description of English legal history is incorrect–that it is “incongruous” with “well-established history.” So let’s take a look at what the history really says.

In 1328, the government in England was near collapse. The previous year, King Edward II was had been deposed by an invasion led by his wife, Queen Isabella (a French Princess). Isabella and her consort Roger Mortimer took over the government, which was nominally led by Edward III, the son of Edward II and Isabella. The monarchy’s ability to enforce the law was close to non-existent. As historian Anthony Verduyn explains, the gentry…using armed force to defeat the course of justice. For decades there had been a problem of “magnates maintaining criminals.” (The Politics of Law and Order during the Early Years of Edward III, 108 Eng. Hist. Rev. 842 (1993).) As numerous royal instructions to Sheriffs of the era indicate, these armed gangs prevented the monarch’s courts from functioning in many places, and attacked jurors who were traveling to perform jury service.

Besides that, as Verduyn writes,  Isabella and Mortimer were fearful of being overthrown; with Parliament composed exclusively of aristocrats, Isabella and Mortimer did not want armed men coming to Parliament, nor traveling armed to meet the Queen. They favored a measure to “politically necessary to check dissent against the increasingly unpopular regime.” So in 1328, the Statute of Northampton was enacted. It provided:

Item, it is enacted, that no man great nor small, of what condition soever he be, except the king’s servants in his presence, and his ministers in executing of the king’s precepts, or of their office, and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night or by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure.

As the text of the Statute indicates, the first concern was the thwarting of government functions. The penalty of forfeiture of “armour” indicates a statute aimed primarily at the aristocracy; commoners could not afford a coat of chain mail.

Yet the statute could be read broadly. The “in no part elsewhere” could be interpreted as a comprehensive ban on carrying by anyone except for “the king’s ministers” and except for people in hot pursuit of fleeing criminals (the hue and cry). It seems impossible that the Statute could ever have been enforced with the literal rigor that Prof. Satia mentions. Separate from the duty to join a hue and cry (which presumably would not be an everyday event), there was the ordinary duty of persons in towns and villages to keep “watch and ward”–this is to serve in daytime and night-time patrols to confront and question any unfamiliar person who attempted to enter. On top of that, the Tudor monarchs of the 16th century mandated that all towns and villages maintain public target ranges. Parents were required to teach their children how to use arms, and various Sunday amusements were outlawed, in order to remove distractions from target practice. The target mandates at first were for long bows, and later for muskets.

Another duty of arms carrying was service in the posse comitatus. Sheriffs and Justices of the Peace could summon all or some of the public to bring arms and assist in the keeping of the peace. This could involve serving a writ on a reluctant party, or the suppression of a riot.

Also, there was the very common practice of people carrying knives, as a necessary tool for everyday use in cutting food and other tasks–and necessarily available for self-defense in an emergency.

So we know that the Statute of Northampton was not interpreted literally. A literal reading would forbid what the law required: watch and ward, posse comitatus, and arms training.

What did the law actually forbid? The only case on the subject seems to be Sir John Knight’s Case, from 1686. It was charged that Knight and three friends “did walk about the streets armed with guns, and that he went into church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King’s subjects.” In the prosecution’s theory of the case, Knight’s intent was “to terrify.”

The Chief Justice of the King’s Bench agreed with that legal standard. The Chief Justice observed that the law was nearly obsolete from disuse: “this statute be almost gone in desuetudinem.” In 1686, “now there be a general connivance to gentlemen to ride armed for their security.” Yet even though the Statute of Northampton was hardly ever enforced, “where the crime shall appear to be malo animo it will come within the act.” (Malo animo= with bad intent.)

Thus, carrying arms was lawful if done with good intent, and unlawful if done with bad intent. This standard was reflected in an influential book a few years later, which linked the rights of ancient Britons and modern Englishmen. (James Tyrrell, Bibliotheca Politica 639 (London, W. Rawlins, S. Roycroft & H. Sawbridge 1694) (Statute of Northampton allows persons to carry arms “in their own defence against Illegal Violence.”).

The major criminal law treatise of the 18th century and for several decades of the 19th century was William Hawkins “Pleas of the Crown”  (1716).  It said that the Statute of Northampton applied “where a Man arms himself with dangerous and unusual Weapons, in such a Manner as will naturally cause a Terror to the People.”

So we have the standard that peaceable carry is lawful, and terrifying carry is unlawful. That is the standard which is advocated by the amicus brief which I joined, and which Professor Satia criticizes. She writes that:

The amicus brief by Kopel et al. paints a picture of widespread gun carrying incongruous with this well-established history. The authors invoke the 1686 acquittal of the gun-toting Sir John Knight as evidence that the 1328 statute was inconsistently applied, but Patrick J. Charles, the award-winning historian for Air Force Special Operations Command, has shown that Joyce Malcolm (one of the brief’s authors) created this finding “out of thin air.” In fact, Knight was acquitted because he was armed while cloaked with government authority. In an era of rapid urban growth, before state provision of police, the wealthy and noble fulfilled the role of informal police.

This is not an accurate description of our brief. First, we never claimed that the Statute of Northampton was “inconsistently applied.” Rather, we argued that the Statute “was interpreted” so as to apply only to carrying “in such a manner as would cause fear or terror in the populace.”

Second, our legal argument, as discussed above, was based on the case reports of the Chief Justice’s explication of the law, and on subsequent law books which restated the rule. The fact that the jury acquitted Knight was simply because the jury did not think that Knight had done what the prosecutor alleged: carrying arms “to terrify the King’s subjects.” A diary written by a contemporary, and published in 1857, recounted that when Knight was “tried by a jury of his own city, that knew him well, he was acquitted, not thinking he did it with any ill design.” (1Narcissus Luttrell, “A Brief Historical Relation of State Affairs from September 1678 TO April 1714″, vol. 1, p. 380 (1857).)

Third, Mr. Charles accuses Professor Malcolm fabrication “out of thin” air because Mr. Charles has an alternative theory of why Knight was acquitted: because Knight was “cloaked with government authority.” Mr. Charles’ argument about this is detailed in his 2009 article in the Cleveland State Law Review.

The argument that Knight was “cloaked with government authority” seems dubious, based on the reports of the case. Although the jury acquitted Knight, the Attorney General moved that Knight be required to post bond for good behavior. The Chief Justice of the King’s Bench agreed. Rex v. Sir John Knight, 90 Eng. Rep. 331, Comberbach, 41 (1686). This does not seem like the treatment of someone who was “cloaked with government authority.”

Mr. Charles also argues that Knight’s lawyer had argued that Knight’s lawyer had argued that Knight was protected by “Richard II’s statute exempting governmental officials from punishment” for violating the Statute of Northampton. Knight’s attorney made no such argument.

The case report is terse about what Knight’s lawyer said: “Winnington, pro defendente. This statute was made to prevent the people’s being oppressed by great men; but this is a private matter, and not within the statute. Vide stat. 20 R. 2.”

Straightforwardly, this is an argument about the primary purpose of the Statute of Northampton: to stop “great men” (nobles) from interfering in the public administration of justice. Rather than being a matter of public concern, Knight’s actions were So argued his attorney. This seems like the opposite of claiming to be like “governmental officials.”

Mr. Charles appears to have been led astray by the statute which Knight’s lawyer cited, from the 20th year of the reign of King Richard II (1396–97). Mr. Charles thinks that this statute created a government official exemption, and that is why Knight’s lawyer cited the statute. Actually, the “government officials” exemption was in the original 1328 Statute of Northampton. (In the 1328 original, an exemption for the king’s “ministers in executing of the king’s precepts, or of their office.” Likewise from Richard II: “the King’s Officers and Ministers in doing their Office.”)

King Richard II, like his great-great-grandmother Queen Isabella, had good reason to fear overthrow by the nobility. They deposed him in 1399, and killed him soon after. So it was rational for the tottering King Richard II to again mandate enforcement of the Statute of Northampton; armed nobles were as great a threat to him as they had been to Queen Isabella and Roger Mortimer.

Why did Sir John Knight’s lawyer cite Richard II’s statute? It supported the argument that that Statute of Northampton was about “great men,” not “a private matter.” The only innovation in Richard II’s restatement of the Statute of Northampton was that it banned not only carrying, but also possession, of “launcegays.” The launcegay was a type of spear that was an “offensive weapon.” (Thomas Edlyne Tomlin, “The Law-Dictionary: Explaining the Rise, Progress and Present State Of the British Law”  (London 1820).) That is why “launcegays were forbidden in the troublous times of King Richard II.” 38

In contrast, Knight had carried a common blunderbuss (a primitive type of firearm, not accurate beyond close range).

Professor Satia charged that the legal arguments my colleagues and I raised in the amicus brief were made “out of thin air.” I hope that the explication above shows that our arguments were based on solid legal authority, and not thin air. In some subsequent posts , I will discuss other arguments that Prof. Satia raises, regarding latter periods in English history.


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Aircraft Engine Fire Injures Seventeen in Fort Lauderdale

A little after noon on Thursday, a Boeing 767 with 101 passengers had an engine fire as it was preparing to take off from the Fort Lauderdale-Hollywood International Airport in Florida. Seventeen people, including a child, were taken to a local medical center. Two of those patients were released by Thursday evening. The injuries included… [Continue Reading]

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Unconstitutional war against ISIS expands to include ground combat by US forces

Secretary of Defense Ashton Carter recently indicated that the ongoing war against the terrorist organization ISIS has expanded to include combat operations by US ground forces:

Defense Secretary Ashton Carter said Tuesday that the U.S. will begin “direct action on the ground” against ISIS forces in Iraq and Syria, aiming to intensify pressure on the militants as progress against them remains elusive.

“We won’t hold back from supporting capable partners in opportunistic attacks against ISIL, or conducting such missions directly whether by strikes from the air or direct action on the ground,” Carter said in testimony before the Senate Armed Services committee, using an alternative name for the militant group.

Carter pointed to last week’s rescue operation with Kurdish forces in northern Iraq to free hostages held by ISIS.
Carter and Pentagon officials initially refused to characterize the rescue operation as U.S. boots on the ground. However, Carter said last week that the military expects “more raids of this kind…”

Carter and Pentagon officials initially refused to characterize the rescue operation as U.S. boots on the ground. However, Carter said last week that the military expects “more raids of this kind” and that the rescue mission “represents a continuation of our advise and assist mission.”

This may mean some American soldiers “will be in harm’s way, no question about it,” Carter said last week.

After months of denying that U.S. troops would be in any combat role in Iraq, Carter late last week in a response to a question posed by NBC News, also acknowledged that the situation U.S. soldiers found themselves in during the raid in Hawija was combat.

“This is combat and things are complicated,” Carter said.

This expansion of the US role further underscores the reality that we are waging a real war against ISIS, one that, under the Constitution, requires congressional authorization. It is on longer possible (if, indeed, it ever was) to describe this as just a few small-scale air strikes. Yet, even after more than a year of combat operations, no such authorization is in sight.

The Obama administration has offered a variety of legal rationales for its policy, including claims that it falls within the president’s inherent executive authority, or that it is authorized by the 2001 Authorization for Use Military Force against the perpetrators of the 9/11 attacks, the 2002 Iraq AUMF. But each of these theories has serious flaws. Other, perhaps even more questionable, rationales of the administration’s action have been put forward by controversial Berkeley law professor and former Bush administration official John Yoo. I criticized Yoo’s here, though I do give him credit for consistency in defending Obama using the same logic that he endorsed during the Bush administration. Yoo, in fact, epitomizes the kinds of broad Bush-era theories of presidential power that then-Senator Obama denounced when he first ran for president in 2008.

The growing use of American ground forces in combat does not in and of itself change the legal situation. The ongoing use of large-scale air strikes over many months was in and of itself a large enough combat operation to qualify as a war requiring congressional authorization. But it does undercut claims (first made by the Administration during its 2011 war against Libya), that interventions of this type don’t require congressional authorization because air strikes alone don’t qualify as a war or even as “armed hostilities” covered by the 1973 War Powers Act, which imposes a requirement of congressional approval for combat operations abroad lasting more than 60 day. Yale law professor Akhil Amar even argued that such air strikes don’t require congressional authorization because there is little or no risk of US casualties.

Such claims are extremely dubious. Months of bombing surely qualifies as a war, by any reasonable definition of the word. Nor is the existence of a war somehow negated by the fortunate fact that US forces have so far suffered very few losses. But even if you buy the extremely dubious claim that ongoing air strikes don’t amount to a war, the use of American ground forces in combat operations means they no longer apply to the conflict with ISIS. And, as the secretary of defense admitted, US troops “will be in harm’s way, no question about it.”

In fairness, the administration did ask Congress to pass a new AUMF earlier this year. But the draft it submitted to Congress had so many flaws that both Democrats and Republicans voiced strong objections, as did many academic experts. Most Republicans do in fact support fighting ISIS. This is one of the few issues that Obama and GOP conservatives in Congress largely agree on. It should be possible for the two sides to come up with an AUMF that both can sign on to. Both the administration and Congress deserve blame for the failure to do so. Congress also deserves censure for its failure to assert its prerogatives. But the president deserves even more opprobrium, because he is the one who initiated an unconstitutional war in the first place – now for the second time.

For reasons I have explained in the past, the lack of congressional authorization for the war is not just a technical legal issue. In addition to setting a dangerous precedent for the future, it also undermines the effectiveness of US military intervention, and makes it more likely that the operation will end in failure, or at best stalemate. That should worry you even if you don’t otherwise care about legal issues or about enforcing constitutional limits on presidential warmaking.

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‘Must home sellers disclose that a home is haunted?’

This photo provided by Twentieth Century Fox shows, Kennedi Clements as Madison Bowen, reaching out to apparitions that have invaded her family’s home in a scene from the film, "Poltergeist." (Twentieth Century Fox via AP)

This photo provided by Twentieth Century Fox shows Kennedi Clements as Madison Bowen, reaching out to apparitions that have invaded her family’s home in a scene from the film “Poltergeist.” (Twentieth Century Fox via Associated Press)

See this post by Kyle White (Abnormal Use), and, for more Halloween law action, check out Daniel B. Moar, “Case law from the crypt: The law of Halloween.” An excerpt:

One reported case we found comes from New York. In that proceeding, the “Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years.” Stambovsky v. Ackley, 169 A.D.2d 254, 255-56 (N.Y.A.D. 1991). In Stambovsky, the court noted the traditional rule that “with respect to real estate … the doctrine of caveat emptore … imposes no duty upon the vendor to disclose any information concerning the premises.” However, the Defendant in Stambovsky “reported [the] presence [of poltergeists] in both a national publication (Readers’ Digest) and the local press (in 1977 and 1982, respectively)” and the home was included on a walking ghost tour in the community. In other words, the seller did disclose the presence of the poltergeists, but the disclosure was made to everyone except the buyer to whom she sold the home. As a result, the court found that the “defendant is estopped to deny [the poltergeists’] existence and, as a matter of law, the house is haunted.” The Court ultimately concluded that “[a]pplication of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.”

Some states maintain statutes which generally dictate one’s duty to disclose murders or other ghastly crimes committed in a home. Florida’s statute provides that “[t]he fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide, or death is not a material fact that must be disclosed in a real estate transaction.” Fla. Stat. Ann. § 689.25(b). Massachusetts law provides that a buyer has no duty to disclose that a property has been “psychologically impacted,” meaning that there is no duty to disclose “that the real property was the site of a felony, suicide or homicide” or “that the real property has been the site of an alleged parapsychological or supernatural phenomenon,” among other things. Mass. Gen. Laws Ann. ch. 93, § 114 (b), ©. California law only requires disclosure of an “occupant’s death upon the real property or the manner of death” if the death occurred in the three years prior to the sale, unless the buyer specifically asks. Cal. Civ. Code § 1710.2 (“Nothing in this section shall be construed to immunize an owner or his or her agent from making an intentional misrepresentation in response to a direct inquiry from a transferee or a prospective transferee of real property, concerning deaths on the real property.”). And sorry, kids, you can’t vandalize a home just because you believe it to be haunted… . Hayward v. Carraway, 180 So. 2d 758 (La. Ct. App. 1965).

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