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