Great "Lawyering" Advice At PropertyProf Blog

Link And here is the post:

Lawyering and Law's Limits

One of the things I try to teach students is that the job of "lawyering" often requires knowing the practical limitations of the rules and theories we discuss. For example, it's one thing to know that the law gives certain rights to your client; it's a different thing to understand how enforcing those rights will affect your client's overall interests. In the world of property law, this issue comes up with some frequency. Take land use practice, for instance, where advancing your developer client's legal rights too forcefully may lead to resentment or backlash from the public officials (or their constituents) with whom the client likely needs to maintain good working relations.
Over at Concurring Opinions, Gerard Magliocca (Indiana - Indianapolis) applies this idea to the "Who Dat" controversy that I mentioned here. Noting the public outrage over the NFL's claims to the phrase, he writes that intellectual property rights often "cannot be enforced to their limits because that would alienate potential customers." A recent incident involving Bruce Springsteen seems to bear this out. The Boss apparently has filed a copyright infringement suit against a New York bar that allowed a band to play his songs but never paid ASCAP a licensing fee for the privilege. Whatever the legal merits of the suit, some of the comments to the story suggest that there may be a public relations cost for pursuing it. Because I think it's important for students to realize this tension early in their careers, I like to provide them with these types of real world examples.
Mike Kent

Constitution Changes if Common Usage Changes

I enjoyed today's discussion about laws that "evolve" as common usage of language changes.

Let's see how this might work.

Suppose in 2011 a constitutional amendment is ratified providing that "the right of gay marriage will not be abridged." The original understanding of this amendment in 2011 is that it protects the right of same-sex couples to marry.

But now suppose 40 or 50 years pass and the common usage of the word "gay" has changed. In other words, common usage of the word gay in 2061 is that the word means happy or carefree, not same-sex sexual orientation.

Does this mean that same-sex marriage is no longer protected by the constitution, because the meaning of the word "gay" has "evolved?"

Can persons lose constitutional rights, not because the constitution is amended to repeal those rights, but because the common usage of language contained in the constitution changes over time?

Suppose common attitudes about same-sex marriage become less accepting over time. Should the Court decide that, since the right to gay marriage has "become obsolete in the evolved society," the express constitutional right should no longer be recognized?

Or should the right to "gay marriage" be interpreted, in accordance with its original understanding at the time of ratification (i.e. as of 2011), to protect the right of same-sex marriage?

Please feel free to write comments on this post, because I would really like to see your thoughts.

Tomorrow's Class

Thursday January 12, 2012--we will have a joint class (both sections together) that will meet in the Auditorium at 1:00 PM.

We will be watching a documentary on the "Poletown" takings case in which an entire neighborhood was taken and transferred to General Motors for use as a Cadillac factory. The movie may run until a few minutes after 2 PM.

Interesting Property Rights Case Before Supreme Court This Term

Real Estate Blog has the story.