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Abstract:
The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories. The contributions of James Charles Smith and Danaya Wright address the depiction of families in the narratives and the limited role and development of family law. Benjamin H. Barton's contribution considers the failings of the formal source of legal authority in Harry's world, the deeply-flawed Ministry of Magic. Particular flaws are examined in the two subsequent contributions: Aaron Schwabach looks at the operation of the legal system through the lens of the unforgivable curses and contends that they show an arbitrariness contrary to the rule of law, while Joel Fishman explores the arbitrariness of punishment in the narratives. James Charles Smith's contribution explores ambiguities in the legal status and wizarding conventions applicable to house-elves, while Daniel Austin Green's contribution uses the narratives to explore the roles of excuse and justification in their relationship with legal authority and rule of law.

Timothy S. Hall's contribution shows how the rule used to free Dobby the house elf can be used as a pedagogical tool to illustrate the importance of intent in contract law, while Jeffrey E. Thomas's contribution suggests that the negative and satirical depictions of law and legal institutions helps readers to focus on the importance of individual accountability in making moral decisions. Andrew Morriss's contribution addresses the centrality of individual moral choice to the Harry Potter novels, particularly The Prisoner of Azkaban and The Goblet of Fire. The final entry, also by Timothy S. Hall, compares the Harry Potter narratives to the Dick Whittington story, showing an interesting cultural evolution from Tudor to modern times.

Children's literature, cultural studies, Harry Potter, humor, humorous, interdisciplinary, fantasy, law & literature, law & popular culture

Abstract:
This article examines an undeveloped legal topic at the intersection of tax law and real property law: charitable deductions from income tax liability for donations of railroad corridors to be converted into recreational trails. The very popular rails-to-trails program assists in the conversion of abandoned railroad corridors into hiking and biking trails. But the legal questions surrounding the property rights of these corridors have been complex and highly litigated. In 1983, Congress amended the National Trails System Act to provide a mechanism for facilitating these conversions, a process called railbanking. In essence, a railroad transfers its real property interests in its corridor to a trail sponsor for interim trail use and retains a right to reenter in case rail service needs to be reactivated on the line. Thus, the dual purposes of the statute - interim trail use and rail preservation - are furthered by a process that prevents the corridor from being broken up and irrevocably lost. An important element of railbanking and trail conversion is the prospect for the railroads of a deduction from their income tax liability when they donate these corridors for public trail use. Recently, however, the Internal Revenue Service has begun to question the donations by invoking the so-called partial interest rule Should the IRS prevail in applying this rule, the deduction would be entirely disallowed under current Internal Revenue Code provisions. This article examines the intersection of these two areas of law and proposes ways the railroads can draft their trail use agreements to minimize the likelihood of being challenged by the IRS, and ways the IRS, the STB, Congress, and the railroads can work together to reconcile the conflict in these different laws. In the end, we believe that the rail preservation function is critical to the public welfare and that it is in everyone's best interest to further railbanking and interim trail use. But doing so requires careful drafting and perhaps regulatory changes to ensure that railroads do not unfairly take advantage of the tax system, while at the same time maintaining an incentive for railroad to railbank and offer their corridors for future public use.

charitable deductions, partial interest rule, rails-to-trails, rail-trails, railroads, recreational trails, transportation policy

Abstract:
This Article is an analysis of a federal circuit case from 2005 that has spawned some disturbing precedents in the area of federal transportation and railbanking policy. Specifically, the National Trails System Act (NTSA) provides a mechanism for preserving unused railroad corridors for future reactivation while allowing interim recreational trail and mixed utility use along the corridor. Converting rail corridors to recreational trails is a very popular process and communities across the country are demanding more and more conversions, as people seek the amenities of linear parks and greenways.

Hash v. United States, however, deals with the property rights underlying the thousands of miles of railroad corridors that were granted directly to the railroads by the federal government out of public lands. The Court of Appeals for the Federal Circuit held that the government no longer had any interest in these lands, even though the railroads only received easements. This ruling effectively ordered that the application of the NTSA to federally granted corridors is a facial taking requiring compensation in all cases. However, the United States Supreme Court has never found that any federal law works a facial taking, and the Court upheld the railbanking act as permissible under Interstate Commerce. Yet, the effect of this case is to find a facial taking fifteen years after the Supreme Court said there was not one. The decision renders null a number of federal statutes enacted to dispose of these corridors and generally throws a wrench into the otherwise relatively stable jurisprudence of federal railroad property law. And although at least one successor case is on appeal, it is critical that this decision be revisited in a thorough manner. Even if successive courts adopt the property determinations of the Hash decision, there *712 are a number of ancillary issues that are critical to railbanking, corridor preservation, and interim trail use that need to be resolved before we lose these corridors forever.

Railbanking, Rails-to-Trails

Abstract:
This article looks at the period leading up to and immediately following the first inter-spousal custody case in England. The article attempts to explicate the legal and social context in which that case arose, and the legal and social responses to that case and those that followed. In particular, I found that the history of English custody law is a rather complicated one. In the late seventeenth and early eighteenth centuries people began challenging the heretofore unquestioned rights of fathers to absolute custody of their legitimate children. These challenges were uniformly made by third parties and in most instances the father lost because he was either failing to support his children, had physically abused them, or had voluntarily relinquished their custody to others. During the same period, mothers were gaining some recognized legal rights to their children in cases against third parties, usually testamentary guardians appointed by deceased fathers. Thus, when it came time for the first custody case between two arguably fit parents, the question was open as to whether mothers' rights would be recognized. As it turned out, a very conservative court effectively precluded any rights by mothers to custody of their children except where the child was in danger of life and limb, a standard that was even harsher than the one applied when third parties challenged fathers. This patriarchal backlash is the subject of the article.

As I detail the handful of cases between 1804 and 1839 that litigated inter-spousal custody disputes I show that each time a mother was the plaintiff she lost. And each subsequent case reveals an attempt by litigants to correct what the court claimed in the prior case kept the mother out. So where the DeManneville court gives custody to the father on the grounds that the mother is still married and therefore, under coverture, cannot challenge her husband in a custody suit, in the next case the parties were separated. But in that case the court came up with a different reason why the mother should lose. And when that reason was resolved in a later case, the court would come up with an even different reason. What I conclude from these legal maneuverings is that the courts simply didn't want to open the domestic can of worms by allowing inter-spousal custody disputes. But in their efforts to discourage them, they created a law that was so rigid and unreasonable that parliament had to step in and ameliorate the situation of innocent mothers.

Unfortunately, the parliamentary reform was not particularly effective and judges continued, between 1839 and 1857, to give custody to fathers unless they failed the life and limb standard. What we find in this legal history is a tension between the chancery's equity jurisdiction to ostensibly make decisions in the best interests of children and their deeply ingrained beliefs in the primacy of property and patriarchy in the legal doctrines they upheld. On one level I challenge the numerous histories that depict the nineteenth century as a period of improving status for women by showing that there appeared to be a patriarchal backlash in the first half of the century dealing with the laws of custody of children. But I am also interested in revealing how legal discourse subtly shifts to defuse the claims of the oppressed without, in reality, yielding any ground or viable legal rights.

For a continuation of this history through the 1857 Matrimonial Reform Acts and the 1886 Guardianship Acts, see my dissertation: "From Feudalism to Family Law: Inter-spousal Custody Disputes and the Repudiation of Mothers' Rights," Johns Hopkins University, Nov. 1998.