"Texas Forever, Six"

If you have not seen the TV series, Friday Night Lights, consider watching it over the break.

I just finished the last episode (for the 3rd time--I'm a loyal guy) and it is one of the best TV series of all time.

I just love the Coach, and Matt Saracen, and, of course, my younger brother, Tim Riggins.

It is available for free on Amazon Prime, and maybe on Netflix as well.

Have a great break and I will see y'all come mid-January.

Coach Duncan

He Knows If You've Been Sleeping

Have a great Christmas or Holiday Break.

And remember, drink lots of hot chocolate, wear onesies, and talk about the individual mandate with family and friends.

Exam Info

As I have said several times in class, pay careful attention to the instructions to the exam.

One of these instructions informs you that "unless otherwise indicated" in a particular question, you should answer the questions "in accordance with traditional common law rules" and then gives you a list of common law rules to consider to be in force.

Read that direction carefully. And then read it again.

You should also read each question carefully, because sometimes the question may "otherwise indicate."

So, if a question tells you to decide the case under modern property law or under contemporary Nebraska property law, you should do so. These will usually be areas of the law in which we have specifically discussed how old common law rules have been abolished or altered by modern property law.

So basically, read the instructions carefully and the questions carefully so you will understand what the questions are asking you to do.

My Most Recent Article on the Establishment Clause

This is not an assignment. Nor is it about Property.

This is just something you might find interesting.

I have recently uploaded on SSRN my most recent article, entitled "Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto."  I mentioned some of these ideas at a Federalist Society event recently, and some of you have asked me about it.

This is an article critiquing the Supreme Court's jurisprudence concerning passive religious displays in the public square, and the true source of the Court's "Wall of Separation Between Church and State." Hint: It is not Jefferson, but rather an organization that Justice Hugo Black once belonged to!

You can download a free copy here: Duncan's Article on Just Another Brick in the Wall.

Happy Thanksgiving

                                               Katie and Easy December 2011


Have a great Thanksgiving vaca. And try to spend some time with family and loved ones.

Q & A Session: Friday Nov. 22

We will try to finish co-tenancies today.

Tomorrow (Friday) class will be devoted to a Q & A session. No new assignment for Friday.

Tonight, review your notes and come tomorrow with your questions.

Landlord-Tenant Law Speaker

 I thought I would forward this message and encourage you to attend.

The Nebraska Real Estate Law Society will be hosting local real estate attorney Jan Beran Tuesday, November 19th from 12:10 - 1:00 in room 111.

Jan will be speaking about landlord-tenant law and his general practice as a real estate attorney.  Anyone interested in keeping their rent deposit is encouraged to attend.  If you have already given up hope on your deposit, this is also a great opportunity to learn about tenant rights, evictions, rental agreements and other landlord-tenant issues.  

Pizza will be provided, so please RSVP by Monday at noon.

Thanks, 

--

Ryan Dorcey

J.D. Candidate 2015
University of Nebraska College of Law
rdorcey@unomaha.edu
(402)-366-9316

Weekend Reflection--Nebraska and Property

On my recent travels, I decided to re-read one of my favorite books about Nebraska and life--Local Wonders by Nebraska's Poet Laureate, Ted Kooser. He tells a story about Branched Oak Lake and how government had to take some family farms that were in the path of the waters.

[A]nd the government condemned their land. An old man told me recently that his aunt, a single woman in old age, refused to leave her house. "She just kept going back there," he said. "They'd come and take her away, and pretty soon she'd be back. Finally, they had to go down there and break all the windows out of the house to get her to leave." The signs read Recreation Area. Her house is underneath it somewhere.

Remember this story when we read the Kelo case next semester.

And if you are looking for a great read, Local Wonders may be your ticket.

Class Schedule: More Class Cancellations

                Believe it or not, this is me when I was in law school with my 68 'Stang



After Thursday's double class, we are required to cancel 8 classes.

Here are the first six cancellations:

1. Wednesday September 18
2. Thursday September 19
3. Friday September 20 (my wife is having out-patient surgery)
4. Friday October 4 (I am teaching a CLE at the Nebraska State Bar Meeting)
5. Wednesday October 9 (I will be speaking at Colorado Law School)
6. Wednesday  October 30) (I will be speaking at Rutgers Law School)
7. Wednesday Nov. 6 

O'Reilly and Hannity Hypo

Suppose Grutz, a big fan of Fox news, conveys Blackacre "to Sean Hannity for life, then to the heirs of Bill O'Reilly."

What is the state of the title?

Now suppose Hannity dies and O'Reilly is still alive?

Handouts 2-6

Are available in the handout racks outside the South Faculty Office Suite in the Library.

Hornbook Reading

Fishing Pier at Sandbridge Beach, Virginia, July 2008 (photo by Becca Duncan)

Just a brief word about the assigned reading in the Hornbook. Normally, our class discussion will focus on the cases and problems that we read in the casebook. The purpose of the readings in the Hornbook is to help you understand the concepts and black letter rules that arise in the cases. We will usually not discuss the Hornbook in class, but hopefully what you read in the Hornbook will help you better understand the cases we discuss.

A few years ago I noticed that students were not mastering all of the rules that govern the caselaw. They were often purchasing "study aids" like property "flash cards" and such that are sometimes wrong and usually overly simplistic. Sometimes they would come to me the day before the exam and ask me to go over all the rules with them, an impossible task given that it took us an entire year to cover them the first time. So I decided to assign a good secondary source to help students get a clearer grasp of the rules and the reasons animating the rules, something that is written well and is always there for you to read and re-read. The Stoebuck & Whitman book is the best hornbook out there on Property.

I hope this helps you understand how the assignments are structured--you should always read the casebook assignments before class, because that is what our class discussion will be about. You should read the Hornbook assignments--and you are "responsible" for reading them--but it is not essential that you do this reading before any particular class.

Anderson V. Gouldberg Limerick

From Lawmericks Blog:

 

Anderson v. Gouldberg

Supreme Court of Minnesota, 1892
53 N.W. 636
Property

The plaintiffs had stolen some wood,
And defendants took more than they should.
"The last wrongful getter
Has title no better,"
And the court for the plaintiffs so stood.

As between two thieves, Thief No. 1 and Thief No. 2 (who steals from Thief No. 1), who has the better claim to possession?

Baseball and Movie Day

This Thursday (September 5) our class will begin at 12:10 AM (i.e. fifty minutes early) so we can watch a great documentary about the Barry Bonds' baseball case involving two would-be first possessors.

Popcorn and Milkduds are permitted, but not required.

Seamus Heaney--Irish Poet Dies at Age 74

“The way we are living,/ timorous or bold,/ will have been our life.”    
          Seamus Heaney (source NYT)

Native American Burial Ground Note 5--Page 107

Let's talk about this note for a few minutes at the start of class today.

Hornbook Reading

As you study for the exam and struggle with some of the rules and doctrine, don't forget to re-read the relevant sections of the Hornbook. It does a really good job of laying out and explaining the many rules we studied. If you have gaps or unclear spots in your notes and outlines, the Hornbook is the first place to go for clarification.

Final Exam Info

The Final Exam is a three hour (closed book) exam that counts for 300 points (the mid-year for Fall semester counted for 100 points). The exam is cumulative and will cover the materials covered in both Fall Semester and Spring Semester. Here are some things you need to know:

1. The exam is closed book. Do not bring any printed materials into the test room. Do not bring cell phones or any unauthorized electronic equipment into the test room.

2. The exam contains both essay questions and multiple choice questions.

3. All answers to essay questions must be typed on a computer using Extegrity Exam 4 software. Check with Vickie in the Dean's Office with any questions about procedures.

4. If you need a lab computer, make sure Vickie knows.

5. Be sure to observe the maximum word limits for each question. If you go beyond the word limit, it will adversely affect your grade for that question. If I say "answer the question in approximately 250 words or less" that means what it says. I use "approximately" to be flexible, so you don't have to stop in the middle of a sentence. 275 words is okay; 300 words is not okay. Please don't abuse the flexibility that I give you by using the word "approximately."

Use Restrictions a la France

I thought you might enjoy a little comparative look at some of the land use issues we have been discussing. From the PropertyProf blog:

NIMBY Au Francais

Bernard Arnault, the man who runs the Louis Vuitton fashion house, finds himself in a bit of a donnybrook with a local nighborhood association over the construction of a museum to house his art collection.  Arnault has begun construction of his art palace in the middle of the Bois de Boulogne Park, upon land donated by the City of Paris. According to the NY Times, local neighbors object to this intrusion and make a simple argument: "the park is intended for the public, the museum is next to a children’s playground, and the building itself violates the rules governing the park by blocking a paved roadway that should be open to the public."  This reasoning carried the day in a recent court battle.  A judge annulled the building permit with construction on the museum half-finished.
Arnault and his powerful friends frame the issue differently.  They argue that the neighbors “show a blind and pernicious individualism that goes against the general interest. They oppose any change for the sake of it. In their tight little suits, they want to put Paris in formaldehyde. It’s quite pathetic.”
The Times concludes that "this being France, and Mr. Arnault being a sort of Ozymandias, he is likely to get his pyramid anyway" - the French Parliament is in the process of overriding the court's decision and granting the museum a special waiver.

Sex-Offender Residency Laws and Covenants

Over at the PropertyProf blog, there is a post about an interesting issue concerning covenants:

Asmara Tekle-Johnson (Thurgood Marshall) has posted two articles about sex offenders and land use controlls on SSRN:
The first is In the Zone: Sex Offenders and the Ten-Percent Solutions; here's the abstract:

At first glance, sex-offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than ten percent of the very real problem of child sex abuse, as family members and acquaintances of children commit more than ninety percent of this abuse. On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and social margins, condemning many low-risk offenders to a lifetime of isolation while breeding optimal conditions for high-risk offenders to reoffend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a false sense of security.

This Article challenges prevailing judicial orthodoxy that many sex-offender residency restrictions are constitutional under the Ex Post Facto Clause. The Article applies the analytical framework of Smith v. Doe, the U.S. Supreme Court's most recent case involving sex-offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The Article proposes an innovative "positive" zoning scheme, the Sex-Offender Containment Zone, which zones high-risk convicted sex offenders back into the city in a manner that is effective, humane, and constitutional.

The second is Safe: Restrictive Covenants and the Next Wave of Sex Offender Legislation; here's the abstract:

This Article examines the emerging phenomenon and implications of sex offender covenants, the latest wave of sex offender legislation, under common law property rules such as touch and concern and the doctrine prohibiting restraints against alienation. The paper theorizes that courts use common law property rules to strike down personal "who" covenants, such as those based on race, age, disability and often permanently debilitating sex offender status, that run afoul of public policy norms-most particularly, the wide availability of safe and decent housing for all.
The Article analogizes blanket sex offender covenants to their racially restrictive progenitors, arguing that both types of covenants are based on unsubstantiated fears that one population would sexually terrorize another. The modern-day fear is that convicted sex offenders will sexually prey upon children whereas the underlying fear in the era of racial segregation was that black men, this country's original sexual predators, would sexually prey upon infantilized white women. Subsequently, this Article looks to the sordid history of racial segregation for lessons and solutions to the modern-day problem of convicted sex offenders. Finally, it asks whether the burgeoning phenomenon of sex offender covenants foretells the rise of similar private restraints based on sexual orientation.

By the way, here is another post on this issue, one which contains a link to an actual covenant restricting sex offenders from occupancy in a residential neighborhood.

Next Week

For next class we will finish up Adverse Possession and start covenants.

Please read:  Casebook p. 617-628

Don't forget to read the relevant Hornbook sections, because they are very helpful.

Hard Cases Make Bad Law--The Temptation of the Judiciary

Here is the quote from Judge Bork that I mentioned in class last week concerning the struggle between the rule of law and rule by unelected men or women:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Weekend Reading: The Automobile and Property as Liberty

                                    Yours Truly Circa 1971With My 1968 Mustang




Great article by Michael Medved in the Wall Street Journal about how the automobile has become an instrument of individual liberty. Here is a link.

And here is a prime excerpt:

Al Gore and his acolytes equate the internal-combustion engine with climate change, overconsumption and environmental devastation, and the mayors of trendy towns like Seattle and Portland have declared war on the automobile as the enemy of civilized values. For enlightened souls of the "Millennial Generation," cars have become surprisingly uncool—riding light rail, bicycles or even buses is a healthier, more politically correct alternative.

It should come as little surprise then that conservatives—happily tuned to talk radio while they drive—remain the great defenders of the automobile. Cars appeal powerfully to one of the most important conservative values: individual freedom. Straphangers in public conveyances can only travel in groups, moving along with hordes of strangers according to schedules imposed by others. Bicyclists, free as they may be, are clearly limited by distance and time constraints. Once you get into a car, however, you go wherever you want, whenever you want, subject only to your ability to put gas in the tank.

Those who relish that sense of freedom, and make the requisite sacrifices to enjoy it, will quite naturally ride to and from work in splendid isolation. Sure, people on the right of a certain age may prove more likely to expend emotion in saying farewell to one specific car, but we will never go along with the idea of saying goodbye to the automobile.

Pound Lecture

UPDATE

Contact Dean Pierce if you are interested in having lunch with Prof. Levinson after he gives his Pound Lecture. Sandy is one of the most interesting people I have ever met. He has a new idea every minute! I think you will enjoy this opportunity.



Greetings from sunny but chilly Jascksonville Beach.

I just wanted to emphasize the announcement that went out today from the Dean's Office:

As you plan your week, please plan to join us on Thursday at noon in Hamann Auditorium for the Pound Lecture, "Is Government by ‘Reflection and Choice’ a One-Time Experience?" by Professor Sanford Levinson. In his lecture, Levinson will discuss Alexander Hamilton's emphasis in Federalist #1 on the opportunity of Americans to engage in unfettered “reflection and choice” about the system of government they wish to live under.  An obvious question is what meaning his argument has for us in 2013, as distinguished from the audience to which he was writing in “real time.”  Do we today wish to engage in genuine “reflection and choice” about our governmental institutions?  In answering this question, it is interesting to compare the United States and American state constitutions (very much including Nebraska’s) with regard to the opportunity and actuality of such “reflection and choice.”

We are very fortunate to have someone of Professor Levinson's stature join us. Please help us make him feel welcome by attending his lecture this Thursday.

Sandy is a friend of mine and a very interesting and provocative constitutional law scholar. You owe it to yourselves to attend this Lecture.

Just FYI--Recent Prisoner RLUIPA Case

This is just for those who may be interested in prisoner rights issues. Here is a recent post from the ReligionClause blog on a recent decision.

Friday, February 22, 2013

Split 5th Circuit Denies En Banc Review In Prisoner Kosher Food Case

By a vote of 8-7, the U.S. 5th Circuit Court of Appeals in Moussazadeh v.Texas Department of Criminal Justice, (5th Cir., Feb. 20, 2013), denied en banc review to the Texas prison system which had refused to fully accommodate a Jewish prisoner's request for kosher food.  A 3-judge panel, in a 2-1 decision, held that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. The panel remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means. (See prior posting.) Judge Jolly wrote a dissent to the denial of en banc review, warning that "we should not be blind to the misuse of RLUIPA in the prison setting." He explained:

this appeal involves the Texas Department of Criminal Justice’s (“TDCJ”) efforts to accommodate the religious practice of keeping kosher of roughly 900 Jewish prisoners among an inmate population greater than 140,000; TDCJ’s establishment of a “Jewish prison unit” with a kosher kitchen; a single Jewish prisoner, Moussazadeh, whose demands were thus accommodated, even though they were not required to be by any court decision; major disciplinary infractions – committed by Moussazadeh – that required his transfer to a more secure prison that did not have a kosher kitchen but nonetheless offered vegetarian and non-pork options and where pre-packaged kosher food in the more secure prison’s commissary was available for purchase; and, finally, the demands of Moussazadeh to be served kosher food, necessarily prepared by a kosher kitchen at the secured facility, even when he later had the option of being transferred back to the Jewish prison....

Assigned Reading For Thursday's Class

Here is an article about practicing under RLUIPA. Please go to the link and read this short article:



Link

"Asset Forfeiture Abuse"

Here is an item from the PropertyProf blog thatdiscusses an issue that recently came up in class:

Asset Forfeiture Abuse

From Volokh: John Ross of Reason has a nice article outlining the problem of asset forfeiture abuse, as illustrated by the scandalous practices in the nation’s capital:

Jerrie Brathwaite was not in her car when Washington, D.C. police seized it in January 2012. She had lent her 2000 Nissan Maxima to a friend, and that friend was pulled over, searched, and found to be in possession of drugs. A year later, Braithwaite—who has never been charged with a crime—still doesn’t have her car back, and no one from the Metropolitan Police Department (MPD) will return her calls.

Brathwaite, 33, is knee-deep in the murky world of civil asset forfeiture, where confiscated cars, cash, and other property disappear into police coffers, and where legal recourse for owners is confusing, slow, and expensive. Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt....

Brathwaite’s situation—and the MPD’s behavior—are not uncommon. Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit.

Ilya Somin has previously covered this topic here.
Steve Clowney

SCOTUS to Hear Takings Case This Week

Here is a summary from the Environmental Law Prof Blog:

SCOTUS Grants Cert in Takings Case (Koontz v. St. John's)

Yesterday I noted that the U.S. Supreme Court was set to consider a cert petition in the “exaction” takings case of Koontz v. St. John’s River Water Management District.  Today, the Court granted that petition, which the Pacific Legal Foundation had filed on behalf of Coy Koontz this past spring. 
The Koontz case raises two important questions: (1) whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands; and (2) whether the Nollan/Dolan test is applicable at the point in time when an exaction is merely proposed.  Drawing from several of my earlier posts on Koontz (available here and here), below I will attempt to provide a primer on the facts and the issues at stake.
-----
Local governments routinely attach conditions, or “exactions,” to development permits in an effort to address the environmental and infrastructural impacts of individual projects. However, presumably to protect landowners from exactions that are either unrelated or disproportionate to the problems caused by their proposed development, the U.S. Supreme Court curtailed the exercise of this power in its conveniently rhyming Nollan and Dolan decisions by establishing a constitutional takings framework unique to exaction disputes. Under this peculiar framework, it is the government—as the defendant— who has the burden of proving that the exaction bears both an “essential nexus” to and “rough proportionality” with the development’s impacts.
Here, Mr. Koontz hoped to construct a shopping mall on his 14.2-acre lot, and sought permission from the Water Management District to dredge and fill wetlands within that lot that were part of a designated riparian habitat protection zone. While the Water Management District apparently could have exercised its authority to deny this request, it instead identified several possible exactions that, if accepted by Koontz, could allow for the development to proceed. Koontz, however, refused these proposals, and the government ultimately denied the development request outright.  At the appellate level, Koontz prevailed on the theory that the Nollan/Dolan test (1) applies to exactions beyond those that require public occupation of private lands, and (2) is applicable at the point in time when an exaction is merely proposed.
The Florida Supreme Court reversed.  On the first issue, the court sided with a considerable majority of the many state and lower federal courts that have addressed the question of whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands by answering this question in the negative.  Still, select courts have answered the question in the affirmative, even in the face of arguably contrary dictum in the U.S. Supreme Court’s unanimous opinion in Lingle v. Chevron in 2005.  
The second issue seemingly has not been addressed in the lower courts at near the same depth as the first.  Nearly all of the many lower court applications of the Nollan/Dolan test have addressed final permit approvals, leaving the Florida Supreme Court with few cases on which to draw. Indeed, prior to Koontz, it appears that in only three instances—one federal district court opinion (William J. Jones Insurance Trust v. City of Fort Smith, 731 F. Supp. 912 (W.D. Ark. 1990)), one federal circuit court opinion (Goss v. City of Little Rock, 151 F.3d 861 (8th Cir. 1998)), and in a decade-old dissent from a denial of certiorari authored by Justice Scalia and joined by Justices Kennedy and Thomas (Lambert v. City & Cnty. of San Francisco, 120 S. Ct. 1549 (2000))—did members of the judiciary assert that a proposed exaction could, in and of itself, implicate the Takings Clause. [There arguably may be select other cases, such as City of Carrollton v. RIHR, Inc. 308 S.W.3d 444 (Tex. App. Dallas 2010), that fit the bill, as well.]  Across these cases, the opinions provide thin and contradictory guidance on the complex questions surrounding whether such a novel claim presents a legitimate takings issue.
The Florida Supreme Court ultimately decided in Koontz that proposed exactions are not subject to the Nollan/Dolan test.  I found it somewhat surprising that the Court did little to confront the rationale set out in any of the few preceding cases on the topic, even though, of course, none were binding upon it.  And it was even more surprising that the Court dedicated only two pages of its opinion to this imposed-versus-proposed issue, and provided little justification for its conclusion. The Court said only that applying the Nollan/Dolan test to proposed exactions would prompt local governments to issue more outright denials “rather than risk the crushing costs of litigation.”
One might contend that applying the same tests to all conceivable exactions, whether they are proposed prior to an outright permit denial or imposed in a final development approval, makes sense. Otherwise, this argument might suggest, property owners would be beholden to the government’s extortionate exaction propositions, lest they side with the empty alternative of an absolute development prohibition. There is an instinctive appeal to the argument (which presumably must be grounded in the quite murky jurisprudence surrounding the “unconstitutional conditions” doctrine) that the denial of an application based on refusal to comply with an exaction demanded by the government is indistinct from a permit conditioned on that exaction.  In a brief post on The Volokh Conspiracy this afternoon, Ilya Somin (George Mason) offers support for this type of approach.
However, there are at least three reasons to suggest that the above approach is inapt.  First, where a proposed exaction is refused or withdrawn, it seems that no property interest has been "taken" from the applicant that can be protected by the Takings Clause. Second, judicial speculation on hypothetical exactions and their hypothetical economic impacts poses a wholly unmanageable system that could require courts to review countless cases that do not present actual controversies (and, in the process, further complicate the line separating due process and takings review). Third, and arguably most importantly as a matter of legal policy, burdening governmental entities with possible takings liability for statements made during pre-decisional negotiation sessions will place a chilling effect on regulator-landowner coordination.
I expound on the above ideas in this pre-Florida-Supreme-Court article.  In addition, Mark Fenster (Florida) authored a very interesting post-Florida-Supreme-Court essay on the topic.  Please stay tuned to the Environmental Law Professors Blog for updates on this latest takings case headed to the U.S. Supreme Court.

Recent Religious Land Use Litigation

From ReligionClause blog:

Catholic Soup Kitchen Files RLUIPA Challenge To Denial of Permit To Operate

The Day reports that on Friday, the Catholic Diocese of Norwich, Connecticut filed suit in federal district court challenging the decision by the Norwich city planning commission not to extend a temporary permit allowing the St. Vincent de Paul Place soup kitchen to continue to operate in a former Catholic school building. Neighbors had complained of trespassing, foul language and litter by soup kitchen patrons.  The Diocese invokes the Religious Land Use and Institutionalized Persons Act, saying that it has been treated differently than other similar facilities, both religious and non-religious.

We will be discussing RLUIPA in a few weeks.

Mid-Year Exam Results

      Katie Duncan and our next-door neighbor, Buffy the Buffalo



Here is the breakdown for the Midyear Exercise:

5 Students scored 100 points (bravo!)

13 Students scored 96 points

4 Students scored 92 points

8 Students scored 88 points

9 Students scored 84 points

4 Students scored 80 points

4 Students scored 76 points

6 Students scored 72 points

2 Students scored 68 points

3 Students scored 64 points

1 Student scored 56 points

2 Students scored 52 Points

3 Students scored 48 points

1 Student scored 36 points

2 Students scored 32 Points

The test median was 84 points

The average score was 80.04

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.

I am quite pleased with the performance of the class as a whole.

I hope you have a great Spring Semester!

Are Promises "to Kiss your a--" Legally Enforceable

Some winter break legal fun!

Here is a great post from the Volokh blog about this importamnt legal issue:

Motion to Kiss My Ass III

Eugene Volokh • December 27, 2012 5:04 pm

For the first, see Washington v. Alaiimo. For the second, see State v. Law. For the latest, see this quote from champion boxer Juan Manuel Marquez, as reported in BoxingScene.com (though I admit that this likely won’t get to court):

[Trainer Freddie] Roach told me if I would would come out clean in the anti-doping tests, he would kiss my ass. The Nevada Commission has announced that both Pacquiao and I were negative for doping. That means Roach has to kiss my ass, and then some. He openly said that I had doped, and now he has to pay the consequences.

Rob Green (Abnormal Use) explains why a court would not indeed order Roach to kiss Marquez’s ass.

Be sure to follow that link to Rob Green's careful analysis of the enforceability of such promises.