Gotham Times on Zoning Out Convicted Sex Offenders

Sex Offenders in Exile

Here it is:

Of all the places that sexual predators could end up after prison, the worst is out of sight, away from the scrutiny and treatment that could prevent them from committing new crimes. But communities around the country are taking that risk, with zoning laws that banish pedophiles to the literal edges of society.

There is a powerful and wholly understandable impulse behind laws that forbid sex offenders to live within certain distances of schools, day care centers and other places that children gather. Scores of states and municipalities have created such buffer zones, then continued adding layer upon layer to the enforcement blanket.

This has placed a heavy burden on law enforcement agencies, which already must struggle to meet exacting federal and state requirements for registering and monitoring the ever-growing population of released sex offenders, many of whom must be tracked for life. Lawmakers have shown no hesitation in piling on the administrative load, but frequently are less quick to pay for additional people to do the work.

As the areas off limits to sex offenders expand to encompass entire towns and cities, if not states, the places where they can live and work are shrinking fast. The unintended consequence is that offenders have been dispersed to rural nowhere zones, where they are much harder to track. In confined regions like Long Island, they have become concentrated in a handful of low-rent, few-questions-asked areas — an unintended and unfair imposition on their wary neighbors.

Many offenders respond by going underground. In Iowa, the number of registered sex offenders who went missing soared after the state passed a law forbidding offenders to live within 2,000 feet of a school or day care center. The county prosecutors’ association has urged that the law be repealed, for the simple reasons that it drives offenders out of sight, requires “the huge draining of scant law enforcement resources” and doesn’t provide the protection intended.
The prosecutors are right that any sense of security that such laws provide is vague at best and probably false. Just as it would feel foolish to forbid muggers to live near A.T.M.’s, it is hard to imagine how a 1,000-foot buffer zone around a bus stop, say, would keep a determined pedophile at bay. If children feel secure enough to drop their wariness of strangers, that would be a dangerous outcome. And of course, no buffer against a faceless predator will be any help to the overwhelming majority of child victims — those secretly abused by stepfathers, uncles and other people they know.

The problem with residency restrictions is that they fulfill an emotional need but not a rational one. It’s in everyone’s interest for registered sex offenders to lead stable lives, near the watchful eyes of family and law enforcement and regular psychiatric treatment. Exile by zoning threatens to create just the opposite phenomenon — a subpopulation of unhinged nomads off their meds with no fixed address and no one keeping tabs on them. This may satisfy many a town’s thirst for retributive justice, but as a sensible law enforcement policy designed to make children safer, it smacks of thoughtlessness and failure.

RLUIPA Attorney's Fees: $178,535.... for Pro Bono Work!

From the Religion Clause blog:

6th Circuit Awards Attorneys' Fees In RLUIPA Case

Yesterday in DiLaura v. Township of Ann Arbor, (6th Cir., Dec. 27, 2006), the U.S. 6th Circuit Court of Appeals agreed with plaintiffs in a RLUIPA case that they were "prevailing parties" and were entitled to $178,535 in attorneys fees, rejecting the district court's lower award. In the underlying case, the Apostolate for the Eucharistic Life challenged the Township's refusal to grant a zoning variance so it could operate a bed and breakfast that hosted guests without charge for prayer and contemplation.

Nice work if you can get it!

"Prairie Dogs and Property Rights"

I think you will find this story very interesting.

Holy Doorman, Batman, It's Better in Nebraska!

Today's New York Times has on article--Only the Strongest Survive-- on the difficult residential rental market in Gotham City. Here are some key excerpts:

ALTHOUGH qualifying to rent an apartment in New York City is not yet as tough as winning admission to Harvard or Yale, it increasingly feels that way to a large contingent of aspiring tenants — even if they actually attended Harvard or Yale and easily passed muster with their previous landlord.

Among the 50,000 background checks run this year on Manhattan tenants by On-Site.com, a national background-checking and leasing service used by some landlords and managing agents, fully 41 percent of applicants garnered a rating of either “reject” or “maybe” (21 and 20 percent respectively).

That means a fifth of would-be renters are being shown a different door than they had hoped, while another fifth struggle to upgrade their conditional status.

With paychecks lagging behind the 10 to 15 percent rent increases for market-rate apartments over the last year, many more would-be tenants fail to scale the standard annual income threshold of 40 to 45 times the monthly rent.

That means that if you want to rent a studio for $2,000 a month, you need to earn $80,000 to $90,000 a year (much higher figures, by the way, than the 36 times the monthly rent required in the rest of the country).

Renters who flunk the income test must prove themselves in other ways. Landlords are demanding extra cash up front, solid credit records and local guarantors who earn around twice the income threshold and are willing to bare their finances to both strangers and kin. Even then, a history of litigation against a prior landlord usually triggers automatic disqualification.

By the way, you future landlords should see wisdom in background checks such as these.

As between A, with a very good income, excellent credit report, and a good tenant history, and B, with less income, some blemishes on his credit report, and a history of litigating against his landlord, whom would you choose as a tenant in your building?

Professor Bainbridge on the Economics of Tipping: Are Kindness and Generosity Rational?

Here. And here is an excerpt:

When you are a regular customer at a given restaurant, developing a reputation as a good tipper presumably results in better service, while developing a reputation as a lousy tipper presumably results in an increased frequency of "spitters." In contrast, using our recent trip to Hawaii as an illustration, I noted that when one will only interact with a waiter once (or are interacting for the last time), it's economically irrational to tip. After all, you'll never be back, so there's no chance for better service but there's also no risk of a spitter. As I put it, in a one time or final period setting, a hard-hearted economically rational actor wouldn't tip.

So, about Hawaii: did he or didn't he?

My RLUIPA Blogging at PropertyProf

If you want to read my RLUIPA and religious land use blogging at PropertyProf, here is a link that should enable you to find all my posts. Just scroll down to my first post, dated October 4, 2006, and then scroll back up to find them all.

Conservatives are Compassionate, But are Liberals Stingy?

Over at the Volokh Conspiracy, Prof. Jim Lingren has an interesting post that begins:

Those Who Favor Income Redistribution Are Less Happy and Less Generous.--
Last fall and winter, I circulated a paper on the relationship of people’s views on income redistribution and capitalism to traditional racism and to intolerance for unpopular groups. I presented it to Gary Becker’s and Dick Posner’s Rational Choice Workshop at the University of Chicago and to the Law, Economics, and Organization Workshop at Yale.

With the publication of Arthur C. Brooks’ new book Who Really Cares (tip for the news story to Instapundit), which presents data showing that conservatives tend to be more generous than non-conservatives, I decided to put a full PDF copy of my paper on SSRN. It appears that our analyses directly overlap only slightly, though they are certainly generally complementary.

In the field of social psychology, it is commonly believed that people support capitalism and oppose greater income redistribution because they are racist or want to dominate other people or groups. Indeed, a study of college students in the United States and secondary students in Sweden found that attitudes supporting capitalism were positively associated with racism and an orientation toward social dominance (Sidanius & Pratto, 1993). In my draft article I expand and test this thesis using 16 nationally representative General Social Surveys conducted by the National Opinion Research Center between 1980 and 2004.

In later posts, I will discuss my main results, but in this post I want to confirm one of Brooks’ findings (in chapter 3 of his book)--those who oppose greater government income redistribution tend to give much more to charity. What follows is a shortened version of one small section of my paper (the paper includes relevant charts).

RLUIPA and "Substantial Burdens"

From the Religion Clause blog:

In Washington v. Klem, (3d Cir., Aug. 2, 2007), the U.S. 3rd Circuit Court of Appeals settled on a definition of "substantial burden" under the Religious Land Use and Institutionalized Persons Act. It held: "For the purposes of RLUIPA, a substantial burden exists where: 1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs."

Inmate Henry Washington's religion requires him to read four Afro-centric books each day. The court found that prison authorities substantially burdened Washington's religious exercise by limiting him to having 10 books at any time in his cell. Further, the state failed to show how its policy furthers its interest in safety and health of prisoners and staff.

Happy Thanksgiving

Have a great Thanksgiving holiday--and remember take some time to enjoy the holiday, the food, the football games, and your family.

Property and "No Property": What Do You All Think?

I think one key passage begins on p. 1428 and continues on 1429. Prof. Baron is explaining that since property rights involve legal relations among persons with respect to things, when the law recognizes that X has the right to exclude Y from X's property, then Y has a corresponding duty to X to stay off of X's property. (X's right entails Y's duty).

"Thus, if X and Y were neighbors, each would have rights to keep the other off, and each would have a duty to stay off." (p.1429) Thus, property rights enhance both the liberty and personhood of X and Y, because each has autonomy over his own property (each is the "king of his own castle.")

But what about the person, Z, who own no property?

Prof. Baron says "[p]ersons owning very few things inhabit a realm of severe social and legal vulnerability, susceptible to the power of many...without having (m)any reciprocal power(s) over others." (p. 1427). In other words, "no property" is "a negative, a collection of lacks." (p. 1429)

What are your thoughts? How should the law respond?

"Woman Wins Religious Discrimination Case"

Here is an article that is somewhat related to some of the issues we discussed today.

Property as an Element of Personhood

While reading the "No Property" article for this week, I got to thinking about Kelo. If property rights are an essential component of liberty and personhood--and I think they are--then perhaps the public correctly views Kelo as the Court declining to protect vulnerable homeowners against the use of governmental power to deprive them of their liberty and personhood by taking their homes for economic redevelopment. Even if the "public good" is advanced from a pragmatic perspective when property is taken from A and put to a better use by B, perhaps the price is too high when the taking strikes at the core of the liberty and personhood of a few unfortunate folks like Susette Kelo.

When government redistributes property rights from A to B, it is redistributing liberty and personhood from A to B. Or at least that is one way to think about this issue

"Ten Tips for Excellence in Appellate Advocacy"

You might find this article by appellate lawyer and blogger Howard Bashman of interest.

Post-Kelo Initiatives

Over at the Volokh Conspiracy, Ilya Somin has this summary and analysis:

Ten states pass anti-Kelo referendum initiatives:
During this fall's elections, voters in twelve states considered anti-Kelo referendum initiatives that sought to ban or curtail the condemnation of private property in order to promote "economic development." Ten of the twelve passed, all by lopsided margins ranging from 55% to 86% of the vote. For a complete list, see here.

The only two anti-Kelo initiatives that failed were proposals in California and Idaho that were tied to complex and highly controversial "regulatory takings" proposals which would have required the government to compensate landowners whenever the value of their property is reduced by various types of government regulations; a stand-alone regulatory takings initiative was also defeated in the state of Washington. Tying anti-Kelo referenda to the much less popular regulatory takings referenda has turned out to be a serious political mistake.

More importantly, of the ten anti-Kelo initiatives that passed, at least six (Arizona, Florida, Louisiana, Nevada, North Dakota, and Oregon) and possibly seven (counting Michigan) are well enough worded to provide strong protection to property owners that would succeed in banning all or most economic development takings in those states. This is a much better batting average than that of post-Kelo reforms enacted by state legislatures, most of which tend to provide little or no protection for property owners (see, e.g., my analysis here, here, and here, and Tim Sandefur's excellent article on the subject).

Why are the anti-Kelo referendum initiatives so much more effective than most of their legislative cousins? I suspect because the former are usually drafted by property rights activists rather than by state legislators. As I discuss in more detail in the posts linked above, politicians often have incentives to give voters the impression that they are "reforming" eminent domain without actually doing so. Activist groups have few if any such incentives and the reforms they draft are therefore likely to have fewer loopholes and be more effective in eliminating economic development takings.

Class Schedule Change: Kelo Lecture

Sylllabus Update: We will finish up concurrent ownership this week, and then we will move on as follows:

14. "Poletown Lives!!" video (in class viewing); casebook p. 714-720; Kelo decision (see link below)

15. RLUIPA Handouts 7, 7A & 7B

The class on November 30 will be a review/Q&A session and we re-scheduled the last class (Dec. 1) to attend the Kelo lecture on October 30.

Room Change: The lecture will take place in ROOM 112 not Room 113.

I am re-scheduling our last class of Fall Semester (scheduled for 12/1/06) to this coming Monday, October 30, at Noon in Room 112.

The reason for the change is to require you to attend Professor Jim Huffman's presentation on one of the most important property decisions in many years, Kelo v. City of New London. I would also like you to read the Kelo opinion before attending Prof. Huffman's lecture. Here is a link to the opinion.

So to summarize:

1. No class: Friday December 1
2. Required lecture on Kelo: Monday October 30 at Noon in Room 112
3. Your assignment for Monday's lecture is to read the Kelo opinion.

"Stopping the government's property grab" or "Little pink houses for you and me"

Roger Pilon writes in the LATimes on ballot initiatives designed to respond to Kelo. His article begins:

NEXT MONTH, in 12 states, including California, voters will get a rare chance to talk back to the Supreme Court. Those are the states with measures on their ballots to protect property rights, sparked by the court's 2005 Kelo decision, which lets government condemn a person's property and give it to someone else who can make "better use" of it. In an instant, Americans across the country woke up to the realization that, as Justice Sandra Day O'Connor wrote in dissent, "The specter of condemnation hangs over all property."

To date, 30 states have enacted measures to restrain their power to condemn, and citizens have stepped in where legislatures have balked, placing initiatives on the ballots. Despite intense opposition from the powers who benefit from the status quo, these initiatives are doing well in the polls because they're tapping into a bedrock American principle: the right of everyone to own and enjoy property.

Here is a link to the article. And above left is a picture of Susette Kelo's Pink house (John Mellencamp call your office).

New 4th Circuit Finders Case

Over at the PropertyProf blog, yours truly has a post about an interesting and recent finders case.

"Ballot measures propose limits on judicial authority"

The Washington Times has an interesting article today that begins:

Western conservatives are gunning for the judiciary this election year with a half-dozen ballot measures that would rope in the authority of what they describe as activist judges.

Case in point is Colorado, where former state Senate leader John Andrews tried for years to solve the problem of activist judges who he said routinely legislated from the bench, often at the expense of conservatives.

His efforts in the legislature fell short, but Mr. Andrews isn't finished. He is the prime mover behind Amendment 40, a proposed constitutional amendment that would limit state appellate judges to 10-year terms, making Colorado the first state to limit the office of top-tier judges.

"We see a pattern of ideological and political decisions from the bench, and it points to a consistent tendency of appellate judges in Colorado to rewrite the law," said Mr. Andrews, now a fellow with the Claremont Institute, after a press conference yesterday at the state Capitol.

Although you will hear angry screams that these initiatives threaten "judicial independence," another view is that they are a reasonable check on judges who often go beyond the judicial task of interpreting the law and begin to rule from the bench. This is a movement worth keeping an eye on.

Law & Literature

Over at Concurring Opinions, Daniel Solove has a post about law & literature. Here is a key excerpt:

If you're interested in law and literature, you might find my website for the Law & Humanities Institute to contain some useful information.
There are several web pages that may be of interest:
1. General Resources (websites, syllabi, etc.)
2. A List of Literary Works About the Law
3. A Chronological Bibliography of Works About Law & Literature (1982-present)
4. A Bibliography of Law & Literature Scholarship About Particular Writers

Handouts 7, 7A & 7B

These 3 handouts--all on the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA")--are now available in the handout kiosk near my secretary's suite on the south side of the library.

We will not be covering this topic for awhile, but the handouts are available for you to pick up. Please take only one copy per student.

Snap Quiz

Suppose: Grutz conveys "to A for life, but if A moves to Europe, then Grantor shall have the right to reenter and possess the property as of his former estate."

What does A have?

What does Grantor have?

Answer

It's Better in Nebraska

Here is a great article from today's Providence Journal about Nebraska and what a great place it is. Check it out!

New Toy

As you can see from some of the blog posts below, I learned how to add pictures to posts this weekend. Freeeeeeeedommmmmmmm!

RLUIPA a Factor

Here is another interesting case involving religious liberty and religious property rights. This is from the Religion Clause blog (link):

"In Baltimore, Maryland, a housing department hearing officer has upheld the decision of Housing Commissioner Paul Graziano who decided that the Archdiocese of Baltimore can tear down a 100-year hotel building in order to build a prayer garden. WBAL-TV reports today that historic preservationists oppose demolition of the historic building located next to a remodeled church. However, they were unsuccessful in their argument that housing authorities should have made their decision without considering the impact of the federal Religious Land Use and Institutionalized Persons Act."

Yours Truly on NPR

The only time I listen to NPR is when I am on the program, and that occurred earlier this week when I was on Talk of the Nation (with Sen. Patty Murray) talking about the Plan B (morning after pill) controversy.

This is not a property law issue, but if you are interested in the debate that took place between me and Sen. Murray, here is a link to an audio of the program.

A Little Rock & Roll Music?

Here is a link to "the 50 greatest conservative rock songs," many of which take a stand for private property rights including this one:

39. “Property Line,” by The Marshall Tucker Band. ; buy CD on Amazon.comThe secret to happiness, according to these southern-rock heavyweights, is life, liberty, and property: “Well my idea of a good time / Is walkin’ my property line / And knowin’ the mud on my boots is mine.”

Special Assignment--Nebraska Landlord Tenant Handout

On Friday, August 14, Prof. Kevin Ruser will be a guest in our class. He will be covering landlord-tenant issues in Nebraska, with a special emphasis on residential landlord-tenant cases.

Your assignment for this class is to read Prof. Ruser's handout on "Nebraska Landlord and Tenant Law," which is available just outside the faculty offices on the South side of the second floor. Please pick up one copy (and only one copy) and read through the handout (with special emphasis on pages 1-30) for class on August 14.

I think this will be a very interesting class.

"The Green Costs of Kelo"

Ilya Somin has an interesting post today over at the Volokh Conspiracy blog. Here is a key excerpt:

Barrels of ink have already been spilled over the Supreme Court's narrow 5-4 decision in Kelo v. City of New London, including some by yours truly. In "The Green Costs of Kelo: Economic Development Takings and Environmental Protection," environmental law professor Jonathan Adler and I have now put together the first article to systematically examine Kelo's implications for environmental policy. It is available here, and currently under review by journals.

We argue that the Supreme Court's decision to allow government to condemn property for transfer to other private parties in order to promote "economic development" may well harm the environment. In particular, private conservation land (an increasingly important tool for protecting environmental amenities and wildlife) is likely to be targeted for condemnation by developers and their allies in local government because conservation property contributes little to development and is usually not subject to property taxes. Allowing economic development condemnations also harms the environment in several indirect ways that we detail in the paper.

Some environmentalists fear that forbidding economic development takings would undermine the use of eminent domain for environmental purposes. Jonathan and I show that these fears are probably groundless. Not even the hint of such a trend has arisen in the nine states where economic development condemnations are banned by state constitutional law. And nearly all environmental takings can easily be justified under one of several legal rationales that would remain intact even if economic development takings are banned.

Like churches, conservation property does not generate lots of tax revenue and economic development for local government growth. Thus, like churches, conservation property may be particularly vulnerable to Kelo-style economic development takings. Interesting post.

Is This Gonna Be On The Exam?

From Overheard in Lawschool:

Our favorite 1L

Property Prof: So are there any questions on the rule against perpetuity?

1L: Yeah, is this gonna be on the final? Cause I have to know if I should care or not...

Prof: Oh Mr. 1L for you, EVERYTHING in the class will be on the final.

Do Definitions of "Family" Relate To Property?

You betcha! See ProprtyProf blog for the scoop.

We will be covering similar issues soon (see assignment 21).

"City to seize church by eminent domain"

"The city of Long Beach, Calif., is using the power of eminent domain bolstered by last summer's U.S. Supreme Court ruling to condemn a Baptist congregation's church building.

The city wants to remove the Filipino Baptist Fellowship's building to make way for condominiums, the Baptist Press reported."

Link.

Zones of Tolerance

My friend, Prof. J Bud from UT, has some interesting things to say about tolerance and the modern culture wars. Consider this excerpt (from J. Budziszewski, The Revenge of Conscience (1999) at 53-54):

The bottom line is that Neutrality is no more coherent in the matter of religious tolerance than it is in tolerance of any other sort. What you can tolerate pivots on your ultimate concern. Because different ultimate concerns ordain different zones of tolerance, social consensus is possible only at the points where these zones overlap. Note well: The greater the resemblance of contending concerns, the greater the overlap of their zones of tolerance. The less the resemblance of contending concerns, the less the overlap of their zones of tolerance. Should contending concerns become sufficiently unlike, their zones of tolerance no longer intersect at all. Consensus vanishes.

This, I believe, is our current trajectory. The embattled term "culture war" is not inflammatory; it is merely inexact. And we can expect the war to grow worse. The reason for this is that our various gods ordain not only different zones of tolerance, but different norms to regulate the dispute among themselves. True tolerance is not well tolerated. For although the God of some of the disputants ordains that they love and persuade their opponents, the idols of some of the others ordain no such thing.

Something to think about while sitting on the beach at Cancun or Deltona over Spring Break.

Does this relate to Property? As we head into the law of restrictive covenants and consider covenants designed to exclude all sorts of land uses and even people from certain neighborhoods, it is well worth our time to think about our own zones of tolerance--those things we think are tolerable and those things we think are intolerable--and then factor in J Bud's insight above.

"The lady doth protest too much, methinks."

Here is a statement Justice O'Connor recently made in protest against statements made in Congress decrying "judicial activism":

"I, said O’Connor, am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings."

And here is something I wrote in response:

Well, let's rewrite this eloquent statement of Justice O'Connor just a teensy, little bit:

"I, said Braveheart, am against judicial decrees driven by nakedly partisan reasoning. We must be ever-vigilant against those who would strongarm the People by imposing their preferred policies from the Bench. It takes a lot of degeneration before a country falls into judicial dictatorship, but we should avoid these ends by avoiding these beginnings."

The fact that the Justices are beginning to act so defensively encourages me that they are beginning to get it. I am cheered and renewed on the eve of Spring Break.

RLUIPA Developments

Here (from the religion Clause blog).

Judicial Non-Activism

Follow this link to a story and an hilarious picture (artist rendition) of Justice Ginsburg sleeping on the High Court bench.

Warning--this article has absolutely nothing to do with Property. It is just for fun.

I remember my favorite President of all, Ronald Reagan, occasionally fell asleep during cabinet meetings. And I remember at one press conference he responded, with his usual wonderful humor, to a question about whether he had gotten any rest on some trip, by saying something like "I haven't had such a good night's sleep since the last cabinet meeting." Great man.

Online Debate on Kelo

Legal Affairs is sponsoring an online debate between Judy Coleman and Steven D. Anderson on legislative responses to Kelo. Here's the link.

Inclusionary Housing in Omaha

Today's World herald has an interesting article discussing how "students of low-income families flourish in mixed housing." Here is an excerpt:

But a big draw for Timber Creek's 45 public-housing families is the mix of tenant incomes, allowing poor people to blend in and flourish in a suburban area where low-income people historically haven't settled.

"You have more role models here," said Patricia Gunther, a single mother who has lived there for four years. "People get up every morning. They go to work. They pay their rent."

Developments such as Timber Creek can provide some guidance as Omaha grapples with a concentration of poor and minority students in its eastern neighborhoods.

Both the Omaha school district, which has proposed absorbing suburban schools as an equalizer, and suburban school officials, who oppose such a move, say housing patterns have intensified school segregation.

Timber Creek, with its integrated environment, support services for residents and the nearby Holling Heights Elementary School, stands out as an example of how low-income families can thrive in suburbia.

Timber Creek is among only a dozen family-oriented Omaha complexes west of 72nd Street that operate under a government mandate guaranteeing at least some low-income units. The requirements stem from the developers' use of public subsidies, including federal tax credits, to help pay for construction or purchase.

In the Wake of Kelo

The New York Times had an article earlier this week that begins:

In a rare display of unanimity that cuts across partisan and geographic lines, lawmakers in virtually every statehouse across the country are advancing bills and constitutional amendments to limit use of the government's power of eminent domain to seize private property for economic development purposes.

The measures are in direct response to the United States Supreme Court's 5-to-4 decision last June in a landmark property rights case from Connecticut, upholding the authority of the City of New London to condemn homes in an aging neighborhood to make way for a private development of offices, condominiums and a hotel. It was a decision that one justice, who had written for the majority, later all but apologized for.

I love to witness the spirit of liberty unleashed!

Oregon Property Rights Initiative Upheld

From PropertyProf blog, here are some thoughts of Prof. Ben Barros:

The Oregon Supreme Court today reversed a lower court judgment that had invalidated Measure 37, the ballot initiative that requires compensation to be paid to landowners when land-use regulations reduce property values. The opinion is available here. The Oregonian also has a story on the opinion.

I've linked to recent essays on Measure 37 here and here. I've noted before that although I tend to be relatively pro-property rights on takings issues, I think Measure 37 is overbroad and a really bad idea. But the voter anger behind Measure 37 is real, and combined with the post-Kelo backlash should cause land-use planners to question whether consistently sticking it to property owners is a good long-term strategy. Oregon land-use planners probably wouldn't be facing potential disaster if they had made some modest accommodations to property owners' interests from the outset.

I have been waiting for someone to put a property rights amendment on the ballot here. But so far, nothing doing.

Some Career Advice--Another FYI

By now, some of you are thinking "What am I doing in law school? I don't think I want to practice law."

This is not abnormal or something to get depressed about. It is something lots of law students go through.

If you are having these kinds of thoughts, please allow me to suggest a career choice that is worth looking into and one that might not have occurred to you. I refer to the wonderful career of being a law librarian, an academic career as a Professor of Law Library.

Right now the market for law librarians--those with both a J.D. and a M.L.S.--is a big time seller's market. Moreover, the career path to becoming a law library director will be wide and straight for this new generation of law librarians.

It takes one more year of school--to get an MLS at a library school--and then you have a wide open door to the academic market (plus many larger law firms have in house law librarians).

If this is something you might be interested in, I encourage you to talk to one of our outstanding law library faculty-- Professor Rich Leiter, Professor Sandi Placzek, Professor Stefanie Pearlman, or Professor Matt Novak. My son Casey graduated from Minnesota Law and is getting his library degree right now at Missouri-Columbia. And he has found his niche in the law--in the law library to be exact.

By the way, this does not relate to Property Law. It is just another of my FYIs to those who may be interested.

What Is Judicial Activism?

Link. Here it is:

Roger Clegg: A Brief Dialogue on Judicial Activism

Central to the judicial nominations debate is the question of judicial activism. Through a series of questions and answers written for the Committee for Justice, Roger Clegg explains what types of decisions constitute judicial activism and why Americans from across the political spectrum should oppose it. Clegg is president of the Center for Equal Opportunity, a former high-ranking Justice Department official, and one of the nation's leading experts on civil rights law.

A BRIEF DIALOGUE ON JUDICIAL ACTIVISM
By Roger Clegg

Q. What is judicial activism?

A. Judicial activism is when a judge ignores what the text of the Constitution or some other law says and substitutes instead his own preference for what it ought to say. It can involve putting something into the text that isn't there, or taking out something that is there.

Q. Is it activism whenever a court strikes down a statute as unconstitutional?

A. Of course not. If a statute violates the Constitution, it would be judicial activism not to strike it down. Striking down a statute is judicial activism only if the statute really isn't inconsistent with the Constitution.

Q. Is it activism whenever a court overrules one of its own precedents?

A. Again, of course not. The principle of stare decisis - Latin for "Let the decision stand" - is a venerable one, and there are good reasons for courts not lightly to ignore their past rulings. But from time to time they do so, and it really doesn't make sense to call it judicial activism when they do. After all, how can overruling a decision that was itself activist be properly labeled activist?

Q. But don't liberals complain that the current Supreme Court is activist because it has struck down some federal statutes, and mightn't they complain that overruling a decision like Roe v. Wade is activist?

A. They have and they might, but in their heart they know this is a bogus claim.

Q. Okay, so judicial activism is just a court ignoring the text of a law and substituting its own policy preferences. But why is this a left-versus-right argument?

A. It shouldn't be. And, indeed, sometimes judicial activism has led to results that liberals would presumably dislike. Exhibit A is, of course, the infamous Dred Scott decision, where Chief Justice Taney made up a constitutional prohibition against Congress limiting the spread of slavery. At the present time, judicial activism is being used by the left in the culture wars, but it has not always been so, nor will it always be so.

Q. So, probably there are instances where conservatives would like for judges to bend the Constitution's text one way, and liberals would like to bend the text the other way. But why shouldn't this be part of what judges do? Put bluntly: What's wrong with judicial activism?

A. What you're asking is, "What's wrong with judges ignoring the Constitution?" and the answer is the same as the answer to "What's wrong with the President (or Congress) ignoring the Constitution?" Sure, in the short term the Constitution may thwart policies or outcomes that this group or that group might prefer. But in the long run the Constitution protects us all, and it is perilous to urge any of the three branches of government to ignore it.

Q. If it's all that simple, then why doesn't the left - and, especially, the pro-abortion folks who are so enamored of Roe v. Wade - see it?

A. Some of them may actually think a judge can find a right to abortion in the Constitution, but I think they are a minority, even on the left. My sense is that many feminists really see the right to abortion as such an important end that they are willing to protect it by any means necessary. You can't really reason with them. The best you can do is persuade some of the less extreme among them that (a) there's a good chance that even a conservative nominee these days will follow stare decisis with respect to Roe, (b) the overwhelming majority of states will continue to allow most abortions, even if Roe is overruled and, what's more, it will soon be essentially impossible to keep abortion pills out of the hands of women in, say, Utah and Louisiana, and (c) the left is playing with fire by giving five justices the power to rewrite the Constitution.

FYI--An Interesting Article

David L. Abney, Religion and Housing for the Homeless: Using the First Amendment and the Religious Land Use Act to Convert Religious Faith Into Safe, Affordable Housing, 8 Scholar 1-15 (2005).

This article is not available on line, or in the law library, but it is available on Westlaw.

This is not an assignment. Just a "heads up" for those with an interest.

Assignments

Here is the list of assignments updated to include the Sprawl article:


Assignments - Spring 2006

I. Takings

1. U.S. v. Causby (casebook p. 669-677)
2. Mahon (casebook p. 745-749)
Penn Central (casebook p. 754-769)
3. First English (casebook p. 749-754)
Keystone (Handout 8)
4. Euclid and Nectow (casebook p. 693-706)
5. Loretto and Lucas (casebook p. 769-784)
6. Nollan and Dolan (casebook p. 784-803)
7. Palazzolo (casebook p. 803-814); casebook p. 814-815
8. "Poletown Lives!!" video; Midkiff case and Poletown note (casebook p. 714-720)
9. Kelo case (dowload opinion from link on blog).

I A. Law of Sprawl

9A. Sprawl Article

II. The Recording System

10. Casebook p. 1069-1086; Handout 9
11. Casebook p. 1086-1098
12. Casebook p. 1098-1107
13. Casebook p. 1107-1119
14. Casebook p. 1119-1127

III. Adverse Possession

15. Casebook p. 1213-1226
16. Casebook p. 1226-1235; 1243-1252

IV. Real Covenants and Equitable Servitudes

17. Casebook p. 553-563
18. Casebook p. 563-571
19. Casebook p. 571-577
20. Casebook p. 577-587
21. Casebook p. 69-76; 587-595; Moore v. City of East Cleveland (Handout 9A)
22. Casebook p. 595-608


IV. Real Covenants and Equitable Servitudes

17. Casebook p. 553-563
18. Casebook p. 563-571
19. Casebook p. 571-577
20. Casebook p. 577-587
21. Casebook p. 69-76; 587-595; Moore v. City of East Cleveland (Handout 9A)
22. Casebook p. 595-608

V. Nuisance

23. Casebook p. 608-626

VI. Landlord Tenant

24. Casebook p. 385-394
25. Casebook p. 395-404
26. Casebook p. 404-423
27. Casebook p. 423-435; Handout 10
28. Casebook p. 451-457
29. Casebook p. 458-478
30. Casebook p. 478-490

Kelo Soapbox

Ladies and gentlemen, here is your chance to express yourselves about Kelo and "eminent domain abuse." Is it an abuse of power to take land in order to improve the community by economic development?

Which of the opinions in Kelo did you find most persuasive? Why? Is this an activist decision?

I hope many of you will get up on this soapbox and write a comment.

Speak up. Fill cyberspace with your intelligence!

New Assignment

For next Thursday (Feb 2--Groundhog's Day), I want to focus on a brief overview of what some call "The Law of Sprawl," a body of law that is a very hot topic among "progressive" Property scholars who don't like the way people have migrated from urban areas to suburban communities.

Our assignment is to read Michael Lewin's article, "Teaching Law Students About Sprawl." Here is a link to the article (scroll down and download the full text of the article in PDF format from the Social Science Research Network).

The Spirit of Liberty on the March

From the Volokh Conspiracy blog:

BB&T, the nation’s ninth largest financial holdings company with $109.2 billion in assets, announced today that it “will not lend to commercial developers that plan to build condominiums, shopping malls and other private projects on land taken from private citizens by government entities using eminent domain.”

In a press release issued today by the bank, BB&T Chairman and Chief Executive Officer John Allison, said, “The idea that a citizen’s property can be taken by the government solely for private use is extremely misguided, in fact it’s just plain wrong. One of the most basic rights of every citizen is to keep what they own. As an institution dedicated to helping our clients achieve economic success and financial security, we won’t help any entity or company that would undermine that mission and threaten the hard-earned American dream of property ownership.”

A private lender taking a principled stand in favor of liberty. Wow! Global warming, schmobel warming. Hell just froze over!

Kelo

Update

I changed the date on this and moved it to the top so you can find it easier.

As you read the opinions in Kelo for Friday's class, ask yourself which opinion you find most persuasive, Justice Stevens' majority opinion, Justice O'Connor's dissent, or Justice Thomas' dissent.

Also think about this. We hear a lot these days about "judicial activism." Do you think Justice Stevens and the majority are acting as activists in Kelo? Is it activism when a court defers to the legislature? Is it activism to refuse to follow an express constitutional text designed to protect individual liberty? What is activism? Is it merely the way you describe the Court when it does something with which you disagree?

The opinion of the Supreme Court in Kelo is here.

Here is a recent NYT article that notes that:

They have still not moved out. Not Susette Kelo. Not the Derys. Not Byron Athenian or Bill Von Winkle or the others.

Five months after the United States Supreme Court set off a national debate by ruling that the City of New London could seize their property through eminent domain to make way for new private development, no one has been forced to leave.

No bulldozers have arrived to level the last houses still standing, and none are expected soon.

Even though the holdouts lost their case, and the development that would displace them finally seems free to go forward, construction has not begun, and some elements of the project have been effectively paralyzed since the court ruling prompted a political outcry.

The transcript of the oral argument in the case is here.

Here is a link to a recent NPR program on the post-Kelo flurry of legislation protecting property rights. Some say that this results in too much protection of private property rights (but can you really have too much of a good thing?).

Here is an article on Kelo by law prof Richard Epstein.

And here is an interview from Reasononline with Kelo's attorney Scott Bullock on what lies ahead for property rights in the wake of Kelo.

I am only assigning the opinion in the Kelo case. The other links are supplied for those who are interested in more depth.

Great Article About Baseball, Life Estates, and the Iran Hostages

You know how much I love baseball. This is a great article from the Washington Post about how a gift of a lifetime pass from Major League Baseball "helped Iran hostages reconnect with America." It is worth reading over the weekend.

What is the Source of our Rights and Liberties?

In the Palazzolo case, Justice Kennedy refers to an argument made by the State of Rhode Island that takes the position that "Property rights are created by the State" (p. 809) and, thus, what the State giveth the State can taketh away.

Do you agree with this view of the source of our liberties? Are our rights to freedom of speech, religious liberty, and equality also the mere creatures of the State?

Consider what the Declaration of Independence says about this issue:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

What are your thoughts?

Beach Day--Tomorrow

Hey, dudes. Forget about Christmas in July; tomorrow is day at the beach in January!

For tomorrow's discussion of Nollan v. California Coastal Commission you are all encouraged to come dressed for a day at the shore. Feel free to wear an Hawaii Print Shirt or bring a boogie board.

Also, think about the relationship between ends and means of a regulatory scheme. What does it mean when the Court says that there must be an "essential nexus" between the ends or goals of a restriction on beachfront development and a condition imposed on the grant of permission to rebuild?

Suppose I go to my doctor for, say, strep throat, and he treats me by putting a band aid on my big toe. Do the means (the treatment) bear a reasonable relationship to the ends (curing my strep throat)? In other words, is there an "essential nexus" between the treatment and the goal of curing my strep throat? What would happen to a doctor who practiced this kind of medicine? [Would he end up serving on the California Coastal Commission?] Think about my big toe when you prepare for our discussion of Nollan.

Welcome Back!

Welcome Back for 1L Spring Semester: The Sequel. To get you off to a cheerful start, here is a link to some great lawyer jokes. And here is one you may especially enjoy:

A paralegal, an associate, and a partner of a prestigious New York law firm are walking through Central Park on their way to lunch when they find an antique oil lamp. They rub it and a genie comes out in a puff of smoke.

The genie says, "I usually only grant three wishes, so I'll give each of you just one."

"Me first! Me first!" says the paralegal. "I want to be in the Bahamas, driving a speedboat, without a care in the world."

Poof. He's gone.

"Me next! Me next!" says the associate in astonishment. "I want to be in Hawaii, relaxing on the beach with my personal masseuse, an endless supply of piña coladas, and the love of my life."

Poof. She's gone.

"You're next," the genie says to the partner.

The partner says, "I want those two back in the library after lunch."

Nyuknyuknyuk!

Syllabus and Handouts

Available in the racks on South Side of second floor.

Additional Assignments

UPDATE --First Assignment For Spring Semester

For our first class next week, lets pick up where we left off. I believe we had covered through the Keystone case, so lets be prepared to discuss First English and Euclid and Nectow.

For those of you who want to read ahead a bit (something I don't recommend by the way), the next major assignment after we complete the Takings assignments, will be the Recording System (pages 1069-1127).

14. U.S. v. Causby (casebook p. 669-677)
15. Mahon case (casebook p. 745-749); Penn Central (casebook p. 754-769)
16. First English (casebook p. 749-754); Keystone (Handout 8)
17. Euclid and Nectow (casebook p. 693-706)
18. Loretto and Lucas (casebook p. 769-784)
19. Nollan and Dolan (casebook p. 784-803)
20. Palazzolo (casebook p. 803-814); Casebook p. 814-815
21. "Poletown Lives!!" documentary; Midkiff case and Poletown case (casebook p. 714-720)
22. Kelo (download opinion from link provided above)