Friday, September 12, 2008

Three from Siegel on the history of Landlord-Tenant Law, Perpetuities and Politics

Stephen A. Siegel, DePaul University College of Law, has posted three papers spanning of number of years. The first is The Conscientious Congressman's Guide to the Electoral Count Act of 1887, which appeared in the Florida Law Review (2004). Here's the abstract:
Electoral vote counting is the oldest activity of the national government and among the oldest questions of constitutional law. Yet, it is one of the least understood aspects of our constitutional order. The Electoral Count Act of 1887, which governs Congress's electoral vote counting process, lies at the heart of this confusion. During the 2000 presidential election dispute, for example, politicians, lawyers, commentators, and Supreme Court justices seemed prone to misstate or misinterpret the provisions of the law, even those that were clear to the generation that wrote it. The purpose of this Article is to explain the provisions of the Electoral Count Act of 1887 as it was understood by the Congresses that debated and enacted it. This article explicates the Electoral Count Act through a comprehensive exploration of its legislative history, the history and theory of electoral vote counting, and the legal and political assumptions of the Congresses that framed it. This Article also develops its understanding of the ECA by analyzing the interplay between the
Act's various substantive sections and between the its substantive and procedural provisions.

John Chipman Gray, Legal Formalism, and the Transformation of Perpetuities Law appeared in the University of Miami Law Review (1982). Here's the abstract:
This article provides a revised history of the development of future interests in English and American law that ties their development into social policy rather than abstract concepts of medieval law. The social policy involves the judiciary's centuries long struggle to prevent large landholders from controlling their wealth long after their death. The judiciary's goal was to prevent the aristocracy and landed elite from tying their extensive holdings to their families in perpetuity. The article depicts the common law's famous Rule Against Perpetuities as only the most recent attempt to accomplish this goal and shows it really was more generous to dead hand control than previous common law limitations. This article also shows how the current image of future interest law is a product of the successful effort of legal scholars in England and America to reshape the corpus of future interest law according to the tenets of
legal formalism the late-nineteenth century's dominant jurisprudence. John Chipman Gray's classic treatise, The Rule Against Perpetuities, was most influential book in this effort. Finally, this article portrays current controversy in American property law as the product of the current movement away from formalism to a jurisprudence of functionalism and pragmatism. The disputes discussed include the reform of perpetuities law, the cy pres doctrine, and the interpretation of deeds.

The third article is Is the Modern Lease a Contract or a Conveyance? - A Historical Inquiry, Journal of Urban Law, (1975). Here's the abstract:
This article presents a revisionist history of English and American landlord-tenant law. Most legal scholars say that until a current wave of reform, landlord-tenant law was premised on feudal property law. They also say that landlord-tenant law would serve society better if its conceptual basis was shifted from feudal property to modern contract law. This article says that landlord-tenant law, even before the late-twentieth century reforms, was based on contract law - and that was the problem with it. The article shows that until the mid-twentieth century, contract law was itself harsh and illiberal. It was only in the mid-twentieth century that contract law was itself reformed to make it more consumer friendly. It was only after the recent reform of contract law that landlord-tenant law began to look harsh and outdated. In fact, until the twentieth-century reform of contract law, it was landlord-tenant law's few property-based doctrines that offered tenant's any protection from overreaching landlords. In addition, this article shows that the current movement to reform landlord-tenant law involves an infusion of the new consumer-oriented contract doctrines into landlord-tenant law. Rather than shifting basis of landlord-tenant law away from property law, this infusion merely updates the perennial contractual basis of leasing law.

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