Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the April 2, 2015 mailing of "Constructive Notice":

A Painful Approach to Land Disputes

It is not unusual for lawyers or title insurers to feel like pulling their hair out when dealing with difficult land descriptions. But recent scholarship indicates that hair pulling was once an accepted means of preserving evidence of boundary location.

In The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria, The Green Bag 2d (Forthcoming), Professor Orin S. Kerr of The George Washington University Law School reveals that “children were allowed to testify only in cases involving border disputes involving land plots. According to one account, the custom was to bring children to the relevant plot and then painfully pull their hair to ensure that they would remember the borders and be able to testify about them in court.”


While his essay is a tongue-in-cheek riposte to SCOTUS Chief Justice Roberts’ disdain for impractical legal scholarship, Prof. Kerr cites to a 1927 Bulgarian treatise on customary procedural law to support his assertion. 


The rationale for relying on children lies in their anticipated longevity. Even in the Anglo-American tradition, it is not unusual to find witnesses whose testimonial strength rests on their familiarity with local conditions since birth. Prof. Kerr's essay does not indicate whether the hair pulling increased the reliability of the testimony. Our Bulgarian-fluent readers are invited to supply additional details after reviewing the cited treatise.

For another unusual approach to land title evidencing, please see Land Records & Bog Mummies, the Constructive Notice newsletter from July 12, 2012.