Merry Christmas and Happy Holidays

Hannah Duncan as the Jester in the Nutcracker


Have a great Christmas and a great break.

I will post new assignments for Spring Semester soon right here on Hooray Property!

Best wishes, Rick Duncan

Property Restrictions and Religion: View From Switzerland

From the Religion Clause blog:

Swiss Voters Approve Ban On Minarets

Swissinfo.ch reports that voters in Switzerland today approved an initiative supported by the right- wing Swiss People's Party and the Federal Democratic Union imposing a ban on the construction of minarets in the country. The final tally showed that 57.5% of the voters and a majority of the cantons backed the initiative. The government, and most political parties, churches and businesses had all opposed the ban. A government statement after the vote said that the Federal Council respects the decision of the voters. New minaret construction is now banned. The four existing minarets will be permitted to remain. Swiss Justice Minister Eveline Widmer-Schlumpf, who strongly opposed the ban, said the initiative was really a proxy for opposition to perceived creeping Islamicisation and sharia law. Opponents fear the vote will fuel extremism and tarnish Switzerland's reputation in the Muslim world. Switzerland has around 350,000 Muslim immigrants (4.5% of the population), mostly moderates from the former Yugoslavia and Turkey. It is estimated that there are 160 mosques and prayer rooms in the country, mainly in empty factories and warehouses.

UPDATE: The London Telegraph has more detailed vote results: 57.5% in favor (1.534 million people), 42.5% against (1.135 million people), with 22 of the 26 cantons in support of the initiative.

Minarets are "distinctive architectural features of Islamic mosques. Minarets are generally tall spires with onion-shaped or conical crowns, usually either free standing or taller than any associated support structure." See Wikipedia.

NYT editorial here.

"The Creed in the Deed"

The PropertyProf blog has a very interesting post about deed restrictions involving both religious and political creeds. Here is a link. Here is an excerpt in which the professor discusses using property conveyances as a means of expressing deeply held beliefs:

Isn't amazing the intersection of our deeply held values with the tangible things we hold. This strikes me as very similar to the article Al Brophy wrote several years ago on covenants against Yankees: Whistling Dixie: The invalidity and unconstitutionality of covenants against yankees,10 Villanova Environmental Law Journal 57. One of the covenants uncovered by Brophy and Gnosh in that article was this one:

The property shall never be leased, sold, bequeathed, devised or otherwise transferred, permanently or temporally, to any person or entity that may be described as being part of the Yankee race. "Yankee" . . . shall mean any person or entity born or formed north of the Mason-Dixon line, or any person or entity who has lived or been located for a continuous period of one (1) year above said line.

Brophy's account traces the unlikely tale of a recent southerner who had not forgotten the war (at least as late as 1998) who attempted to enforce a covenant against yankees in the sale of certain property in Georgia. Like this case, certain church members used the courts (or so I am told) to enforce these creeds against apostates of the faith. Church folk, like Southerners after the war, are greatly invested in their larger normative beliefs, and for some, the best way of expressing it is through the material intrusions of this world -- like property.

Recent Scholarship on Pierson v. Post

Miss Sassypants (rescued and photographed by Kat Duncan)


From the PropertyProf blog:

The History of Pierson v. Post

Daniel R. Ernst (Georgetown) has a fantastic summary of the recent scholarship on the history of Pierson v. Post in the Green Bag.

Harry Potter and the Half-Crazed Bureaucracy

Concerning Harry Potter and the law, is J.K. Rowling trying to convert a new generation of anti-government libertarians? Prof. Benjamin Barton's recent law review article says perhaps.

Here is the link. Just scroll down past the abstract and you can print out the article in its entirety.

And here is a money quote:

"Rowling taps into the current general distrust of government in the US and the UK and creates a Ministry of Magic that simultaneously echoes and critiques our own governments. On the one hand she creates a government that is repulsive in its structure, personnel, and actions. On the other, she crafts this government to appear closely related to our own government. This juxtaposition creates a powerful and subtle critique of government."

Sigh

It breaks your heart. It is designed to break your heart. The game begins in the spring, when everything else begins again, and it blossoms in the summer, filling the afternoons and evenings, and then as soon as the chill rains come, it stops and leaves you to face the fall alone. You count on it, rely on it to buffer the passage of time, to keep the memory of sunshine and high skies alive, and then just when the days are all twilight, when you need it most, it stops.

-A. Bartlett Giamatti (hat tip BoSoxLady on SOSH)

Handouts

A few of you have been asking "where are the Handouts" that are starting to show up on the list of assignments.

As future lawyers, you need to learn how to manage your documents. Thus, I am certain most of you realize that you already have handouts 1-7B. They were included in the original packet of handouts for "Fall 2009."

If you have lost your set of handouts, please copy a classmate's set, because there are no more copies available in the kiosk.

Class Cancelled Friday Sept. 25

The Young Lawyers Seminar-- next Friday, Sept. 25-- will be held in Rm. 113. We have been evicted from our classroom to make room for this program.

So we will not meet on Friday Sept. 25.

Instead, we will extend each class by roughly 7-10 minutes until we have made up 75 minutes.

It should take us about 8 extra long class sessions to accomplish this sum.

Finders and True Owners

Here is a nice local news story about some lost money and an honest finder.

Three cheers for Emmanuel, a young man who lived up to his name!

Zoning Problems of Large Churches

Here is a post from the Religion Clause blog about an issue we will cover later this semester:

Large Churches Face Zoning Hurdles

Today's Baltimore Sun carries an interesting analysis of zoning opposition to building of mega-churches (and similarly large synagogues and mosques). Dave Travis, a consultant who tracks these trends says: "There's still a general impression that most churches are small: The white frame church down there on the corner, the little brick building that has a hundred people. Just the fact that you've got a church with a couple thousand people seems abnormal to lots of people." Some large churches are instead pursuing a multi-site strategy.

Feel Free to Write Comments on the Blog

"Last Sunrise at Sandbridge" (photo by Rick Duncan)


If you wish to start (or continue) a dialogue with your classmates on some of the issues I am blogging about, feel free to do so. Just click on the comments link after any particular post, and write your comment as the spirit moves you. The only rule is the rule of civility and respect.

The Property Blog is open 24/7 for your edification.

Cheers, Rick Duncan

Jacque v. Steenberg Homes: A Few Notes, Questions, and Comments

There are a lot of issues in Jacque that lie beyond the scope of a 1L Property class. Don't worry too much about the standards for punitive damages and retroactive enforcement of new judicial rules.

Here are some things I would like you to think about:

1. What do you think of Felix Cohen's definition of "property" at 563 N.W. 2d 160?

"[T]hat is property to which the following label can be attached:

To the world:

Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private Citizen
Endorsed: The state"

2. Was it unreasonable for Mr. and Mrs. Jacque to refuse permission for Steenberg Homes to cross their land? Should the law of trespass permit "reasonable" trespasses? Trespasses where the utilitarian benefits outweigh the costs? Trespasses where it was unneighborly to refuse permission?

3. Should private tort law be used by courts to punish wrongdoers who intentionally trespass on the land of another? Why not allow the criminal law to punish wrongdoers and look to tort law to compensate for the amount of damages suffered by a private landowner as a result of the trespass?

4. Is there a difference between Ms. A, who intentionally trespasses across the land of her neighbor, Mr. B, on A's morning jog, and a commercial enterprise like Steenberg Homes? What is the difference and how should the law take that into account?

5. Profs. Merrill & Smith argue that what lies behind the decision in Jacque is the court's recognition that property rights are "moral rights" or fundamental human rights that impose "duties of abstention on all other members of the relevant community." As they put it, "[i]n the court's view, Steenberg Homes had an unqualified duty to respect the Jacques' property rights, without regard to whether their reasons for refusing permission were unfounded or even silly....Punitive damages were awarded to vindicate this broader right--a pure property right--not to promote public utility by preventing violence or protecting privacy."

6. Do you agree with the view of property as a moral right and basic human right? Or do you agree with Marx and Engels who summed up their theory "in [a] single sentence: Abolition of private property."

7. In which direction is our society moving--toward more--or less--respect for private property?

Duelling Lawsuits Concerning Religious Land Use

Sunrise at Sandbridge July 2009 (photo by RFD)


From the Religion Clause blog:

Competing Lawsuits Filed In Dispute Over Religious Services At Co-op Unit

Canopus is a Putnam County, New York cooperative comprised of 22 free-standing homes on 15 acres of land. A longstanding dispute between Anthony Bondi, Jr., a lessee of one of the homes, and his neighbors has led to competing lawsuits being filed in state court in New York. Bondi is head of an organization known as the Holy Orthodox Catholic and Apostolic Church of America. He holds services in his home which are attended each week by ten to 15 people. The cooperative has threatened to terminate his lease saying he is in violation of a lease provision that limits use of homes to residential purposes. Neighbors say that Bondi's advertising of services, including a website, invites strangers into the close-knit neighborhood. In 2008, Bondi filed a housing discrimination complaint with the New York State Division of Human Rights and with federal authorities at HUD. The New York agency issued a Determination of Probable Cause, and Canopus (as permitted by New York law) elected to have the complaint adjudicated in civil court.

While settlement negotiations were going on, Canopus-- without advance notice-- filed in state court. The complaint (full text) in Canopus Realty Corp. v. Bondi, (Sup. Ct. Putnam Co., filed 7/2/2009) seeks a declaratory judgment that Bondi does not have a right to run a business, including his Church, from his residence, and that enforcement of the lease terms that restrict use to residential purposes does not violate state or federal civil rights laws. In response, New York filed a housing discrimination lawsuit against the cooperative. The complaint (full text) in New York State Division of Human Rights v. Canopus Realty Corp., (Sup. Ct. Putnam Co., filed 7/14/2009), alleges religious discrimination, saying that the cooperative does not prevent other residents from inviting guests to their homes or to the co-op's clubhouse. It asks for a declaratory judgment, injunction and damages, as well as various broader remedial actions by Canopus. Courthouse News Service today reports on the lawsuits.

"Think twice about 'green' transport, say scientists"

From Yahoo news:

PARIS (AFP) – You worry a lot about the environment and do everything you can to reduce your carbon footprint -- the emissions of greenhouse gases that drive dangerous climate change.

So you always prefer to take the train or the bus rather than a plane, and avoid using a car whenever you can, faithful to the belief that this inflicts less harm to the planet.

Well, there could be a nasty surprise in store for you, for taking public transport may not be as green as you automatically think, says a new US study.

Its authors point out an array of factors that are often unknown to the public.

These are hidden or displaced emissions that ramp up the simple "tailpipe" tally, which is based on how much carbon is spewed out by the fossil fuels used to make a trip.

Environmental engineers Mikhail Chester and Arpad Horvath at the University of California at Davis say that when these costs are included, a more complex and challenging picture emerges.

In some circumstances, for instance, it could be more eco-friendly to drive into a city -- even in an SUV, the bete noire of green groups -- rather than take a suburban train. It depends on seat occupancy and the underlying carbon cost of the mode of transport.

"We are encouraging people to look at not the average ranking of modes, because there is a different basket of configurations that determine the outcome," Chester told AFP in a phone interview.

"There's no overall solution that's the same all the time."

The pair give an example of how the use of oil, gas or coal to generate electricity to power trains can skew the picture.

Boston has a metro system with high energy efficiency. The trouble is, 82 percent of the energy to drive it comes from dirty fossil fuels.

By comparison, San Francisco's local railway is less energy-efficient than Boston's. But it turns out to be rather greener, as only 49 percent of the electricity is derived from fossils.

The paper points out that the "tailpipe" quotient does not include emissions that come from building transport infrastructure -- railways, airport terminals, roads and so on -- nor the emissions that come from maintaining this infrastructure over its operational lifetime.

These often-unacknowledged factors add substantially to the global-warming burden.

In fact, they add 63 percent to the "tailpipe" emissions of a car, 31 percent to those of a plane, and 55 percent to those of a train.

And another big variable that may be overlooked in green thinking is seat occupancy.

A saloon (sedan) car or even an 4x4 that is fully occupied may be responsible for less greenhouse gas per kilometer travelled per person than a suburban train that is a quarter full, the researchers calculate.

"Government policy has historically relied on energy and emission analysis of automobiles, buses, trains and aircraft at their tailpipe, ignoring vehicle production and maintenance, infrastructure provision and fuel production requirements to support these modes," they say.

So getting a complete view of the ultimate environmental cost of the type of transport, over its entire lifespan, should help decision-makers to make smarter investments.

For travelling distances up to, say, 1,000 kilometres (600 miles), "we can ask questions as to whether it's better to invest in a long-distance railway, improving the air corridor or boosting car occupancy," said Chester.

The paper appears in Environmental Research Letters, a publication of Britain's Institute of Physics.

The calculations are based on US technology and lifestyles.

It used 2005 models of the Toyota Camry saloon, Chevrolet Trailblazer SUV and Ford F-150 to calibrate automobile performance; the light transit systems in the San Francisco Bay Area and Boston as the models for the metro and commuter lines; and the Embraer 145, Boeing 737 and Boeing 747 as the benchmarks for short-, medium- and long-haul aircraft.

Why a House is Not a Home

I have been reading a little less law and a little more law-related literature this past year, and I wanted to share with you a great insight from the book I am reading right now, Charles Dickens' Barnaby Rudge. By the way, if you are looking for a great law-related novel for the beach this summer, there is nothing better than Dickens' Bleak House, a great novel about the law and so much more. But I digress!

Here is the passage from Barnaby Rudge, about how a home is so much more than a building:

Although the best room of the inn, it had the melancholy aspect of grandeur in decay, and was much too vast for comfort. Rich rustling hangings, waving on the walls; and, better far, the rustling of youth and beauty's dress; the light of women's eyes, outshining the tapers and their own rich jewels; the sound of gentle tongues, and music, and the tread of maiden feet, had once been there, and filled it with delight. But they were gone, and with them all its gladness. It was no longer a home; children were never born and bred there;the fireside had become mercenary--a something to be bought and sold--a very courtezan: let he who would die, or sit beside, or leave it, it was still the same--it missed nobody, cared for nobody, had equal warmth and smiles for all. God help the man whose heart ever changes with the world, as an old mansion when it becomes an inn!

Barnaby Rudge, Chapter 10.

Q & A Next Wednesday

Keep a Weather Eye Open by Josh Duncan

There will be an optional Q & A session next Wednesday (April 22) at 1 PM in Room 113.

Fee Simple Absolut

Apparently, there is an entire line of Property t-shirts available for law students seeking to make a fashion statement. See PropertyProf blog.

My "White Paper" on Nebraska Supreme Court

Schill's "Bloody Sock"


Schill Waves Goodbye











Although this is not a "property" article, I thought some of you might be interested in reading my recent Federalist Society "white paper" on the Nebraska Supreme Court:

Umpires, Not Activists: The Recent Jurisprudence of the Nebraska Supreme Court

I am not assigning this, just making it available for those of you with an interest in court watching and the Nebraska Court.

Legal Theory Blog

This is a great site for 1Ls wanting to learn more about legal theory. Prof. Solum has a feature, called the legal theory lexicon, in which he helps you understand various terms used in law and legal literature. For example, his most recent entry helps you understand "ex post" and ex ante" as they appear in legal literature:

If I had to select only one theoretical tool for a first-year law student to master, it would be the ex post/ex ante distinction. (Of course, this is cheating, because there is a lot packed into the distinction.) The terminology comes from law and economics, and here is the basic idea:

• The ex post perspective is backward looking. From the ex post point of view, we ask questions like: Who acted badly and who acted well? Whose rights were violated? Roughly speaking, we associated the ex post perspective with fairness and rights. The ex post perspective in legal theory is also loosely connected with deontological approaches to moral theory. In general jurisprudence, we might associate the ex post perspective with legal formalism.

• The ex ante perspective is forward looking. From the ex ante point of view, we ask questions like: What affect will this rule have on the future? Will decision of a case in this way produce good or bad consequences? Again, roughly speaking we associate the ex ante perspective with policy and welfare. The ex ante perspective in legal theory is loosely connected with consequentialist (or utilitarian or welfarist) approaches to moral theory. In general jurisprudence, we might associate the ex ante perspective with legal instrumentalism (or legal realism).

Of course, this very basic introduction to the distinction is oversimplified. For example, a fairness-based theory of torts might consider future consequences in assessing legal rules, and even utilitarian legal theories must use ex ante information when evaluating particular cases.

Why is the distinction between ex ante and ex post so important? Because it marks an important theoretical divide between consequentialist and deontological approaches to legal theory. Consequentialists, we might say, simply don't care about the question whether A has violated the rights of B, for their own sake. Rather, a consequentialist cares about the consequences of attaching liability to those who act like A did. Ex ante, is a strict liability rule or a negligence rule more efficient? Deontologists, on the other hand, care very much about who has acted rightly and wrongly. In tort law, for example, corrective justice theories of tort are associated with the ex post perspective. A should be liable to B, only if A has acted wrongly.

If you are a first-year law student, you might make a habit of asking yourself questions like the following:

Is the rule in the case I've just read, just or fair from an ex post perspective?
Will the rule produce good consequences (as compared to the alternatives) from an ex ante perspective?

James Madison on Property--1792

"America's Pastime" still life by Josh Duncan (the glove is the one I still use when coaching my daughter's softball)


Here is some light reading while sitting on the beach during spring break.

"Speak Up, Mr. Hart...

fill the room with your intelligence."

Wow! The best law school series ever broadcast--Paper Chase--is about to come out on DVD.

Put this one up on your Netflix queue!

If you can get past the 70s hippy look of the 1Ls, you will love this series. Prof. Kingsfield is tougher than even Braveheart.

Property Videos Available Online

From the Volokh blog:

Institute for Justice Videos:

The Institute for Justice -- one of the nation's top libertarian law firms -- has some short videos out on their favorite constitutional law cases. IJ has long been first-rate not just at litigating their cases, but at using them to promote libertarian legal ideas to the public, so these should be much worth watching (and forwarding). Here are IJ's quick summaries, with links:

1. The Little Pink House & Property Rights: ... Susette Kelo in her historic fight against eminent domain for private gain.

2. Economic Liberty & the 14th Amendment: Should it take seven years and a team of lawyers to open as small business? That is the reality, so long as courts ignore the Privileges or Immunities Clause of the 14th Amendment.

3. Footloose in Arizona -- A Funny Look at Petty Government Actions: Can you imagine a government threatening fines of $500,000 on a small business for allowing patrons to dance outdoors? Enjoy this fun animated take on the Saga of San Tan Flat.

4. School Choice: Should Only the Government Get to Pick Your Kids’ School? Andrea Weck from Arizona is like millions of parents nationwide; she wants to get her children the best education possible, but finds some people think that only the government —- and not parents -— should select the schools children attend.

5. Free Speech & Campaign Finance Restrictions: Does the First Amendment protect the right to free speech? Not always. Today, campaign finance laws are being used to stifle political speech and participation.

6. Eminent Domain for Private Gain in New Jersey: Does the 5th Amendment protect private property rights? Lori Vendetti [talks] ... about eminent domain in her ocean-front town of Long Branch, N.J.

For more information on any of the cases related to these videos, visit http://www.ij.org/cases.

NASA "Global Warming" Satellite Crashes

Link. Excerpt:

VANDENBERG AIR FORCE BASE, Calif. – A rocket carrying a NASA global warming satellite has landed in the ocean near Antarctica after a failed launch.

The Taurus XL rocket carrying the Orbiting Carbon Observatory blasted off early Tuesday morning from California's Vandenberg Air Force Base. But launch managers say that several minutes later, the payload fairing, which shelters the satellite, apparently failed to separate from the launch vehicle.

Hmmm. This could have been a finders case if it had fallen on land.

I await the NY Times article claiming that global warming caused the crash (as well as the collapse of the NY Yankees in the 21st Century)!

New Book on Kelo

Over at the Volokh blog, Ilya Somin has an interesting review of a new book on Kelo (excerpt):

Telling the Kelo Story - Jeff Benedict's Little Pink House:

People interested in property rights issues generally or Kelo v. City of New London specifically should definitely read Jeff Benedict's new book, Little Pink House. Kelo generated a broader political backlash than any other modern Supreme Court decision, and Benedict's book is by far the most thorough account of the development project and condemnations that led to case.

Benedict doesn't focus much on the legal issues involved, which have already been beaten to death by a small army of legal scholars (myself included). He does, however, provide an in-depth account of New London's decision to condemn the plaintiff's homes and other property in order to promote "economic development" and the course of the political and legal struggle between the two sides. Although Benedict's sympathies are clearly with the property owners, he also conducted numerous interviews with the lawyers and officials on the other side, so their perspective gets extensive coverage in the book. For example, he provides a fascinating portrait of Claire Gaudiani, president of Connecticut College and of the New London Development Corporation - the quasi-governmental entity that decided to go forward with the condemnations.

More Schedule Changes

There will be no class on the following dates:

1. Wednesday February 18. I am teaching an "honors" undergraduate class on the Establishment Clause, so we won't meet on this date. Let's celebrate the life of Braveheart himself, William Wallace, a son of Alba and a lover of liberty.

2. Friday March 13, the Friday before Spring Break. Let's celebrate the life and ideas of one of my all time favorite home schooled philosophers and lovers of liberty, John Stuart Mill.

Sex Offender Residency Laws

From the PropertyProf blog:


"The New York Times has a story that describes the consequences of Iowa's sex offender residency rules:

The men have flocked to . . . rural motels and trailer parks because no one else will, or can, have them. A new state law barring those convicted of sex crimes involving children from living within 2,000 feet of a school or day care center has brought unintended and disturbing consequences. It has rendered some offenders homeless and left others sleeping in cars or in the cabs of their trucks."

Should we care? If so, what should we think about this?

Here is an excerpt from the NYT piece:

CEDAR RAPIDS, Iowa — One cornfield beyond the trim white farmhouse where the Boland family lives and a road sign warns, "Watch for children and dogs," is a faded motel.

For years a layover for budget-conscious motorists and construction crews, the motel has lately become a disquieting symbol of what has gone wrong with Iowa's crackdown on sexual offenders of children. With just 24 rooms, the motel, the Ced-Rel, was home to 26 registered sex offenders by the start of March.

"Nobody wants to have something associated with sex offenders right beside them," said Steve Boland, a farmer and father of two who learns about his newest neighbors every few weeks when sheriff's deputies stop by with photographs of them.

"Us showing the kids some mug shots sure wasn't going to help," Mr. Boland said. "How were they going to remember that many faces?"

The men have flocked to the Ced-Rel and other rural motels and trailer parks because no one else will, or can, have them. A new state law barring those convicted of sex crimes involving children from living within 2,000 feet of a school or day care center has brought unintended and disturbing consequences. It has rendered some offenders homeless and left others sleeping in cars or in the cabs of their trucks.

Happy Ronald Reagan Day!

Friday February 6 is Ronald Reagan's Birthday. The Gipper was a great President, the best of my lifetime!

Enjoy your day off!

"Above all, we must realize that no arsenal, or no weapon in the arsenals of the world, is so formidable as the will and moral courage of free men and women. It is a weapon our adversaries in today's world do not have." --President Ronald Reagan

"General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and eastern Europe, if you seek liberalization, come here to this gate. Mr. Gorbachev, open this gate. Mr. Gorbachev, tear down this wall!"--President Ronald Reagan winning the Cold War

Energy Policy and Property

Some interesting property issues in this recent Weekly Standard piece by Irwin Stelzer:

Looking Green, Feeling Blue
Environmentalist dreams collide with economic reality.
by Irwin M. Stelzer
01/27/2009 12:00:00 AM

The environmentalists, or at least some of them, have fired a warning shot across the bow of Obama's mighty ship of state as it sails "to the shores of need, past the reefs of greed," as Leonard Cohen's perversion of Wordsworth would have it. They have expressed extreme unhappiness with the failure of the stimulus package to include many of the 800 items they had hoped to see in it when they sat down in their office to unwrap it. There is, from the green point of view, worse. During the campaign and the transition Joe Biden promised that there would be no more coal plants built in the United States; greener-than-green Henry Waxman wrested the chairmanship of the House Energy and Commerce Committee from the sensible John Dingell; Carol Browner, "an acolyte of former Vice President Al Gore", according to the New York Times, was named White House coordinator of energy and climate policy (aka "czar"); Harvard University physicist John Holdren, a long-time advocate of measures to combat climate change was picked to be the President's science adviser; and Steven Chu, the Nobel prize-winning physicist and advocate of biofuels and solar power, was named to be Secretary of Energy. There are others, all of this green persuasion, all able, all darlings of the environmental movement, all expected to favor sun and wind over nuclear and coal. So far, so green. But responsibility brings with it doubts, and politics in the form of Democratic senators from coal-producing states brings with it moderation. So environmentalists were horrified when Dr. Chu told senators during his confirmation hearings that he planned to fast-track the development of nuclear plants, accept oil and gas drilling as part of an overall energy package, and would support new coal-powered electric-generating plants even before research into "clean coal" technology bears fruit. So here we are. Lots of talk about smart grids, solar and wind power, lots of environmentalist appointees -- and an administration still groping for an energy policy that is feasible -- allows for a sufficient increase in the supply of energy to sustain economic growth while at the same time reducing the emission of greenhouse gasses. This means that it is an administration that will soon be at war with part of the environmental movement, and learn that although it controls the White House and the congress, it cannot control environmentalists' use of the courts to stall and in many case kill the development of new sources of energy. Various environmental groups have already used the courts to force the cancellation of over 50 coal plants. They have used the courts to prevent the opening of the Yucca Mountain nuclear waste repository. Local groups in the not-in-my-backyard camp have used the courts to prevent the construction of wind farms, with the Kennedy-led opposition to Cape Wind, the project within sight of their Hyannis Port compound, the most famous. And they are increasingly concerned about the amount of land needed for large-scale solar installations. There is an additional obstacle to the new President's realization of his 25-25 goal: 25 percent of the nation's power to come from renewable sources by 2025. People do not tend to live in windy places, a few hardy Scots being the exception. Nor do they tend to seek out homes in the desert, unless, of course, they can have access to huge amounts of electricity to run super-sized, energy-guzzling air conditioning systems. In short, renewable sources of energy are remote from the population centers where that energy is needed. Which means that large, high-voltage transmission lines must be built from wind farms and solar sites to major cities, often across beautiful parts of states such as Virginia and Maryland. The enthusiasm of homeowners in those states for views of transmission towers is limited, to say the least. Michael Morris, CEO of American Electric Power, estimates that to supply 20 percent of the nation's electricity needs with wind by 2030 will require the construction of 19,000 circuit miles of extra-high-voltage transmission. Unless the Obama team is willing to use the right of eminent domain to over-ride all objections from local environmental groups, in the process antagonizing millions of voters, those transmission lines will never get built. Or built only after a 6-year long permitting process, the current average according to Morris. So, back to coal and nuclear. I would like to be a fly on the wall when Larry Summers explains these ugly facts of energy-sector life, the necessity for tradeoffs, to Ms. Browner and her colleagues. Or when Summers explains to the president that only a tax on carbon, to be offset by a cut in payroll taxes, can set the stage for efficient investment in renewables, and a reduction in greenhouse gas emissions that is not also a reduction in the overall efficiency of the economy. Irwin M. Stelzer is a contributing editor to THE WEEKLY STANDARD, director of economic policy studies at the Hudson Institute, and a columnist for the Sunday Times (London).

Another Great Ben Franklin Quotation For Our Times

"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote."

"Stern on the Legal Mythology of Home"

This post from PropertyProf blog has special relevance as we discuss issues of exclusionary single-family zoning laws:

Stephanie Stern (Loyola Chicago) has posted Residential Protectionism and the Legal Mythology of Home on SSRN. Here's the abstract:

Residential real estate has achieved an exalted status and privileged position in American property law. The notion of the home as a special object deserving heightened protection is widely accepted within the case law and scholarship. Influential scholars, most notably Margaret Radin, have argued that the home is critical for an individual's very identity and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting individuals in communities of close-knit social ties. Over the past century, there has been a proliferation of legislation creating special protections for owners of residential real estate such as homestead exemptions, tenancy by the entirety, property tax relief, and more recently foreclosure relief and state eminent domain legislation shielding residential real estate. This type of legislation imposes a variety of social costs including raising the cost of credit, skewing housing prices and incentivizing over-investment, and forcing less affluent homeowners to subsidize more affluent homeowners through regressive measures. One motivation for residential protection legislation is the desire to protect the special values attributed to the home, especially for families. More often, the impetus for such legislation is rent-seeking by special interest groups, competition between states to attract residents, actions by local home voters who attempt to externalize costs across localities, or grandstanding by politicians anxious to capitalize on the evocative chord of home protection. The belief that homes play a critical and irreplaceable role in the lives of individuals and families has provided a gloss of moral legitimacy to rent-seeking and greased the wheels of the residential protectionism machine. It is time for a critical reexamination of the importance attributed to the home. Drawing on the research literature in psychology, sociology, and demographics this paper argues that there is scant evidence to support a categorical theory of the home as a special object that constitutes individual identity or enables a rich web of social interactions. The psychology research illustrates the importance of social interaction and relationships (not possessions) for human functioning while the demographic research indicates that closely-knit, low-turnover, territorial neighborhoods are the exception, not the norm.

Class Schedule--No Class Friday February 6

The first of our 7 required cancellations will be Friday February 6, President Ronald Wilson Reagan's Birthday (February 6, 1911).

This would be a good day to schedule job interviews. Mark your calendars.

It was Mel Gibson's Braveheart, not the Gipper, who said this, but it captures the spirit of Reagan and of liberty:

"Fight and you may die. Run and you will live, at least
awhile. And dying in your bed many years from now, would you be
willing to trade all the days from this day to that, for one
chance to come back here as young men, and tell our enemies
that they make take our lives, but they will never take our freedom?"

Religious Land Use: A Global Perspective

Some of you may find this Religion Clause blog post of interest:

Burma Orders Christians and Muslims To End Worship Services In Private Apartments

In the heavily Buddhist country of Burma, both Christians and Muslims were ordered last week to stop holding religious services in residential apartments. Mizzima reported on Wednesday that in Rangoon, the Kyauktada Township Peace and Development Council held a meeting with nearly 50 church leaders last Monday to deliver their demand. The use of apartments for services has grown since authorities stopped issuing permits in the 1990's for churches to buy lands and construct buildings. According to a subsequent report by Mizzima, Muslim leaders were separately summoned by authorities on Monday and similarly ordered to stop holding worship services in private apartments. The unavailability of government permits to build mosques has led to use of private venues for worship.

"Supreme Court Review Sought In RLUIPA Case"

From Religion Clause blog:

Supreme Court Review Sought In RLUIPA Case

According to the Longmont (CO) Times Call, a petition for certiorari was filed with the U.S. Supreme Court last week in Rocky Mountain Christian Church v. Board of Commissioners of Boulder County, Colorado.  In the case, the 10th Circuit upheld a jury's determination that denial of a special use permit to a church violated the equal terms and unreasonable limitations provisions of RLUIPA. (See prior posting.) The 10th Circuit subsequently denied a rehearing after making minor changes in its original opinion. (See prior posting.)

December 2008 Mid-year Exercise Results

Here is the breakdown for the Midyear Exercise:

2 Students scored 100 points

9 Students scored 96 points

11 Students scored 92 points

7 Students scored 88 points

9 Students scored 84 points

6 Students scored 80 points

7 Students scored 76 points

5 Student scored 72 points

5 Student scored 68 points

2 Students scored 64 points

2 Students scored 60 points

4 Students scored 56 points

5 Students scored 52 points

1 Student scored 48 points

2 Students scored 44 points

The test median was 80 points

The average score was 78.28

This was good work. More than half of you scored above 80% on this short exercise.

As I said in class, don't read too much into your performance on the mid-term exercise. The final will count for 300 points, and things could change a lot based upon your performance on the final. Be neither discouraged nor overconfident.

Also, please ignore the "quartile" rankings that the Law College will provide pursuant to a new faculty rule. I consider these quartiles arbitrary at this point in the course, because I simply don't have enough data to make any judgment about your relative ranking in the class. I divided the scores into quartiles only because I was required to do so. As far as I am concerned in my professional judgment, everyone is presently in the first quartile.

I am generally pleased with the perfomance of the class as a whole.

Have a great break and come back ready to have a great second semester.