Carol Zeiner

A Therapeutic Jurisprudence Analysis of the Use of Eminent Domain to Create a Leasehold

Carol Zeiner — Sat, 10 Mar 2012 09:14:47 PST

A THERAPEUTIC JURISPRUDENCE ANALYSIS OF THE USE OF EMINENT DOMAIN TO CREATE A LEASEHOLD

ABSTRACT

Therapeutic jurisprudence provides an excellent tool to analyze and guide the development of the law on the use of eminent domain to create leaseholds. These are takings in which the objective is for the condemnor to become a tenant under a “lease,” rather than the fee simple owner.

I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work I provided an exhaustive analysis of the conclusion that government can use eminent domain to create a leasehold. That work went on to conclude that there are circumstances in which government should use eminent domain to create a leasehold, but that difficult problems can arise in such takings. They necessitate refinements in arriving at just compensation. That work also concluded that there is at least one situation in which government should not be allowed to use eminent domain to create a leasehold. I labeled such takings as Kelo-type takings in which government uses its power of eminent domain with the objective of creating a leasehold that it will then transfer to a private party for private use. The conclusion that such Kelo-type takings to create leaseholds should not be allowed was based primarily on public policy considerations. I concluded that the problems created by takings that create private leaseholds are so much worse than those encountered in takings like Kelo, in which government acquires a fee simple from the condemnee then makes a transfer to a private party, so as to disrupt the social contract between government and the people.

Any such conclusion demands reexamination on theoretical, jurisprudential grounds. This article does so. It formally extends the jurisprudential philosophy therapeutic justice to eminent domain and specifically to takings to create leaseholds in order to re-examine the question. The principles underlying therapeutic jurisprudence, as well as the illuminating insights derived from its application, confirm the prior conclusion. Moreover, the article shows the potential usefulness of therapeutic jurisprudence in arguing and deciding eminent domain cases.

Marching Across the Putative Black/White Race Line: A Convergence of Narrology, History and Theory

Carol Zeiner — Fri, 24 Feb 2012 13:12:39 PST

When a woman in the South, whether African American or white, made the decision to become active in the U.S. Civil Rights Movement, she did so in the face of reprisals that ranged from loss of friends and alienation of relatives, to outright social ostracism, loss of employment for family members, physical harm and even violent death. Her choice exposed not only herself, but also members of her family, to those risks. She had to deal with the fear of not knowing which of those reprisals would come her way and, if she had children or were married, which of them might be visited on her children or husband. The scholarly literature includes works on Black women who braved these risks to stand for racial equality. It has come to include the stories of southern-born, atypical white women who chose to stand in harm’s way in order express their moral convictions for racial justice. It also includes the stories of Northern white women who supported the civil rights movement in the North, and Northern white women who travel south for brief periods to work on specific projects, such as Freedom Summer. This article introduces a new category of women that, until now, has been omitted from the scholarly literature: northern white women who lived in the South and became active in the civil rights movement, yet intended to continue to live in the South on a permanent basis following their activism. These women already were viewed with suspicion as “newcomers” and “outsiders” in the deeply segregated communities in which they resided. They chose to validate those suspicions and become permanently branded with the pejorative ”civil rights supporter” by joining their ostracized women counterparts, both African American, and white, in the fight for social and economic justice for African Americans. This article presents the stories – a narrology -- of two such women, one as she first made her choice to become active and faced her fears, and the other a seasoned veteran of the civil rights movement in the South. It provides insight into their experiences and the thought processes that led them to challenge the status quo on civil rights. This article also eliminates a criticism often leveled at legal narrology: the reliability of the stories. It authenticates these women’s stories through their convergence with extensive historic detail, including comparison with the scholarly literature about other categories of white women civil rights activists. It then goes on to examine their experiences through the lens of the jurisprudential theory, therapeutic jurisprudence. The result is a cogent, reliable addition to the literature that provides another perspective and voice, and deeper understanding of those historic and tumultuous times. Like works on other categories of women who participated in the civil rights movement, this article expands our knowledge of the breadth and complexity of the civil rights movement, biracial activism, and women’s identities and interests.

SECTION 529 PREPAID COLLEGE TUITION SCHOLARSHIPS: HELP IN UNCERTAIN ECONOMIC TIMES

Carol Zeiner — Tue, 10 Mar 2009 13:06:03 PDT

The economy is wretched. The United States’ economic recovery is dependent in part on the country’s position in a global economy. If we as a nation wish to remain competitive in a knowledge-based economy that requires a higher level of education, we must facilitate greater access to postsecondary education. Unfortunately, in the last two decades, the United States has fallen from first to tenth place in the world in the proportion of its population that has obtained that all important postsecondary education. President Obama has set a goal of restoring the United States to first place by 2020. The United States faces a number of problems when it comes to facilitating access to higher education. For many years, children in a large segment of our society, the economically disadvantaged, have not even dreamed of graduating from high school and going to college. If we are to make any serious inroads into the proportion of our population that has attained postsecondary education, we must prepare children within this group for postsecondary education and provide access for them. Now we have a new problem hampering students from families whose children have traditionally attended college. Just as these children are about to attend college, their families’ college savings have been decimated. We as a nation cannot afford to lose these children from the proportion of our population that has attained higher education. While there is no single silver bullet for the nation’s educational woes, this article proposes a model that will prove effective for both cohorts of students. It is based on Florida’s highly successful, cost-effective prepaid college tuition scholarship program, a jewel that has gone largely unnoticed. This article evaluates the existing program, suggests how it can be adapted to assist students whose college savings have recently evaporated, especially in those states that already have prepaid tuition plans.

EMINENT DOMAIN WOLVES IN SHEEP’S CLOTHING: PRIVATE BENEFIT MASQUERADING AS CLASSIC PUBLIC USE

Carol Zeiner — Tue, 24 Feb 2009 12:33:26 PST