Kelo-Style Failings

This Article proposes a mechanism to internalize the risk to the public interest created by the process of land assembly utilized in conjunction with most eminent domain-related projects. The Article explains how the traditional bifurcated process of land assembly produces a schism between the land assembler\u27s acquisition of title and the ability of the land assembler to make a productive use of the acquired property. The gap of time between title acquisition and use permits a change of circumstances to thwart the completion of a redevelopment project, which leaves the public to incur the costs of post-litigation waste. To internalize the externalities generated by the typical land assembly process, the Article proposes that land assemblers and condemning authorities hold title to properties in a land preservation trust until title to all necessary parcels has been acquired. The flexibility of a trust shields the public, land assemblers, and property owners from objective and subjective costs stemming from assembling land in the shadow of eminent domain. By preserving the properties, the trust not only becomes a proxy for the public utility of redevelopment projects, but also tips the balance of the public-private process of land assembly toward equipoise

A Revaluation of Cy Press Redux

With its enactment in 2, Section 413 of the Uniform Trust Code (UTC) introduced the most recent, and important, revision to a court\u27s cy pres power since the nineteenth century. Section 413 expands the court\u27s power to redistribute the assets of failing charitable trusts by transforming one of the traditional elements of cy pres into a presumption, abandoning the traditional cy pres redistribution standard, and providing an additional justification for the exercise of the power. Although scholars have scrutinized other portions of the UTC, the UTC\u27s reconfigured cy pres has failed to provoke scholarly discussion even though it has been adopted by twenty-one jurisdictions. Notably, the vacuum of scholarly examination of UTC Section 413 intersects what has been described as “the largest intergenerational wealth transfer in history.” Estimates suggest that charities alone stand to receive up to $24.8 trillion over the next several decades and some of those assets will undoubtedly be held in charitable trusts. Thus, the merger of UTC Section 413 with the massive wealth transfer over the next decades means that courts will wield increasing power to redistribute enormous sums of charitable resources as the objectives of some charitable trusts become obsolete in the future. This Article fills that scholarly void by subjecting the modifications to cy pres introduced by the UTC to a critical evaluation and offers a view of the UTC\u27s cy pres that is contrary to its perceived acceptance. The Article begins by outlining the evolution of cy pres in England and the United States through the promulgation of the UTC to highlight the substantial differences between the UTC\u27s cy pres and its traditional ancestor. The historical shift represented by UTC Section 413 tilts the theoretical balance of interests too far toward the public interest and fails to fulfill its underlying goal of promoting efficient use of scare resources. To counter these theoretical and efficiency concerns, the Article proposes replacing the UTC\u27s presumption of general charitable intent with a presumption of specific charitable *138 intent. Although presuming specific charitable intent is likely to result in an increase in cy pres denials, presuming specific charitable intent benefits charity generally by increasing the number of charities that will receive assets via cy pres without any loss in efficiency. In the end, a presumption of specific charitable intent not only serves as a counterweight to the trend of increasing paternalism associated with charity law, but also ultimately benefits the public by reducing litigation costs

Antebellum and Postbellum Testamentary Transfers in Three Kentucky Counties Symposium: Empirical Analysis of Wealth Transfer Law

This Article analyzes wills and inventories probated in three Kentucky counties, Boone, Woodford, and Wayne Counties, between 186 and 187. The results of the study show that married women in the three counties generally did not execute wills during the sample period, which is an expected result given the testamentary limitations imposed upon married women by Kentucky law. Despite dual encumbrances imposed by common and statutory law during the sample period, legislative and judicial action before, during, and after the sampled decade illustrates the advance of women\u27s property rights in Kentucky. The Kentucky General Assembly passed a number of private and public bills that expanded the testamentary authority of married women after 1848, which is striking given the relative absence of legislation that authorized wills by married women before 1848. Furthermore, a number of testators placed assets in separate use trusts for the benefit of daughters thereby allowing those daughters to transfer separate estates by will after marriage pursuant to Kentucky common and statutory law. The authority to execute a will to dispose of a separate estate provided a married woman with an opportunity to express her intent on paper with the sanction of law. The largest difference between wills probated before and after 1865 is the distribution of slaves. Notably, sampled testators opted to distribute slaves to females (wives and daughters) with greater frequency than to males (sons). Although women are historically depicted as bystanders to the slave economy, testamentary gifts of slaves to women suggests a greater degree of participation in the slave market than suggested by the traditional narrative. Regardless of the distribution of slaves by gender, each and every recipient of slaves by will did so before the ratification of the Thirteenth Amendment in 1865. The passage of the Thirteenth Amendment not only transformed enslaved persons to free persons, but also had a visible effect in the recorded pages of probate books-- slaves are listed in testamentary instruments probated before 1865 but vanish in the wills and inventories of decedents\u27 estates after 1865

Kelo-Style Failings

This Article proposes a mechanism to internalize the risk to the public interest created by the process of land assembly utilized in conjunction with most eminent domain-related projects. The Article explains how the traditional bifurcated process of land assembly produces a schism between the land assembler\u27s acquisition of title and the ability of the land assembler to make a productive use of the acquired property. The gap of time between title acquisition and use permits a change of circumstances to thwart the completion of a redevelopment project, which leaves the public to incur the costs of post-litigation waste. To internalize the externalities generated by the typical land assembly process, the Article proposes that land assemblers and condemning authorities hold title to properties in a land preservation trust until title to all necessary parcels has been acquired. The flexibility of a trust shields the public, land assemblers, and property owners from objective and subjective costs stemming from assembling land in the shadow of eminent domain. By preserving the properties, the trust not only becomes a proxy for the public utility of redevelopment projects, but also tips the balance of the public-private process of land assembly toward equipoise