Q & A Session Wednesday December 3

I will be there tommorrow--same time same place--to try to respond to your many questions about Property law.

National Debt hits $18 Trillion!!!

That is $18 Trillion with a big, fat capital T!!!

How much of this debt is your share? Just divide $18 trillion by 300 million Americans and you will get your share of this debt. Just add it to your student loan debt and get ready to pay, pay, pay!

Canned Immunity--New Rule

I strongly support the concept of canned immunity--feeding the hungry is a very good thing to do--but I apply a slightly different version of the rules in my classes.

True charity is freely given from a thankful heart, not from a desire to escape justice. Moreover, to buy your way out of being called on with a can of food is a bit like the game of beggar-your-neighbor--you escape the guillotine, but your neighbor without a can must takes your place at the chopping block.

So NEW RULE.

I will call on whomever I call on, and everyone else receives mercy that day. All of you who receive mercy (all of you who are not called on) should give a can or multiple cans to the program out of thankfulness for being spared the guillotine.

Everyone wins. The Food Bank gets more food (because everyone who is spared gives out of thankfulness); the class moves along at a smooth pace; and no one is required to take her neighbor's place at the guillotine simply because her neighbor has paid for immunity.

Please do give to the program.

Marriage and Domestic Partnership Law In Nebraska

Since the casebook mentions the recognition of "domestic partnerships" and "civil unions" in a few states, I thought you might be interested in the Nebraska law. The Nebraska Constitution (art. I, sec. 29) provides:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416.

Notice that this law does not forbid same-sex couples from entering into committed relationships or from having their relationships blessed as "marriages" by their religious authorities. It merely provides that the State of Nebraska will not give legal recognition or validity to same-sex partnerships or unions, such as in the form of tax benefits, inheritance rights, or other legal incidents of marriage.

But notice that wills, insurance policies, contracts, and property arrangements (such as joint tenancies) can be employed to provide same-sex couples with much of the economic security of marriage.

When you represent gay clients, you need to be extra attentive to make sure that they have wills, insurance policies, powers of attorney, and similar legal protections for their partners.

Property and the "Knee Defender"

Gotham Times reports (link):

I have a set of Knee Defenders, the devices that hook onto the tray table of an airliner seat back and prevent the seat from reclining.

When I mention this to people, they express shock, as if it is something beyond the moral pale, like taking candy from children or not tipping above 15 percent.

It’s an even a worse offense in the eyes of my colleague Josh Barro, who argued this week for the primacy of the economic rights of the recliner. He calls using a Knee Defender theft.

The real problem is undefined property rights over the same four or five inches of space. People don’t agree on who has the rights. The airlines leave it foggy.

“As for what customer has the ‘right,’ I think what we can say is the in-flight experience is much better when passengers are courteous to each other and flight crews,” said Paul Flaningan, a spokesman for American Airlines.

The person who wants it most will end up owning the rights, but the person with the recliner button holds an advantage. The Knee Defender reallocates the rights. Now I can claim the four inches in front of my face.

The problem seems akin to people walking on a 48-inch city sidewalk with those ridiculous 54-inch-wide golf umbrellas. Or is a better analogy the range wars of the American West in which cattlemen try to stop the farmers until Shane fights back with his ivory-handled Colt revolver?

Using a Knee Defender may seem uncivil, but it is not: It just evens the playing field. Instead of having the guy in front of you slam the seat back and wait for $50, as Mr. Barro suggests, with a defender you can now negotiate.

“It gives you the chance to be human beings,” says Ira Goldman, the inventor of the Knee Defender, who has seen traffic to his online store rise 500 times above average since an altercation last weekend on a United flight involving his device. “Do you want the conversation to start before the laptop screen is cracked or after it is cracked?” he asks. “Like Max Bialystok and Leo Bloom in “The Producers,’ the airlines sell 200 percent of that space.”

The airlines have also failed to establish property rights for armrests, but there is a generally understood code for that: The person in the aisle has room to stretch, the person in the window seat has the fuselage to lean against, and the person in the middle has nothing, so he or she gets the armrests.

Most reasonable people agree, although I once had a seat mate on the aisle who insisted the armrest was his. After a little jockeying for ownership, he began pulling hairs from his nose and lining them up on the armrest. “You win,” I said.

But I have a moral code for users of the Knee Defender. If those in front of you never notice or care, then no harm done. When they do notice, what usually happens is that they complain to a flight attendant that the seat is broken. The flight attendant will know immediately what’s up. In that case you remove them at once and, if necessary, apologize. (No major airline condones their use because they can cause a ruckus in the cabin, as happened last Sunday when a pilot had to divert a plane to eject two unruly passengers.)

Mr. Goldman, a former Senate aide who got the idea during a long flight, says people don’t want to use his devices but have no other solution. He offers a card on his website that he suggests you give to the person in front of you. It says, in part:

If you would like to recline your seat at some point during the flight, please let me know and I will try to adjust myself and my Knee Defender so that it can be done safely.

I realize that this may be an inconvenience. If so, I hope you will complain to the airline. Maybe working together we can convince the airlines to provide enough space between rows so that people can recline their seats without banging into other passengers.

Thank you for your understanding.

That card, with its passive-aggressive tone, is just asking for trouble. And it cannot change the reality: The way the system is now designed, the recliner has every incentive to push the button and recline. The Barro pay-me solution gives the recliner even greater incentive to always do so.

Airlines could solve the problem by declaring themselves Reclinists or Knee Savers, and passengers could choose which airline to fly based on that (or at least would know what to expect on board).

Until then, the Knee Defender reallocates the property rights. Using it makes you no more or less of a jerk than the person who always reclines.

Excuse me now while I go online to order the Kid Bagger for that toddler who will be kicking the back of my seat with her steel-toed Mary Janes.

Q & A Session: Saturday May 3 at 1 PM Room 113

              ?  ?  ?  ? ?  ?  ?  ?  ?  ?  ? ?


I know many of you will have questions as the exam approaches.

So I will be in Room 113 tomorrow at 1 PM for a Q & A.

Spread the word to your classmates when you see this post!

Rand Paul on Liberty in an Age of Security

Rand Paul on liberty and airport security:

Harvard Law School professor Noah Feldman has asked, “The next time airport security tells you to put your hands over your head and hold that vulnerable position for seven seconds, ask yourself: Is this the posture of a free man?”

Here is the Bork Quotation I Mentioned in Class

Bork on Temptation of the Judiciary:


The late, great Robert Bork once brilliantly explained how a judge can be tempted to follow his own views of justice rather than to do his duty and follow the law:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held views 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.

Tuesday March 4--Required Attendance at Pound Lecture

We have a very special Property speaker coming to the Law College on Tuesday March 4. Prof. Epstein is the leading authority on Takings and the Takings Clause. I am requiring the Property class to attend his Pound Lecture at the Law College on Tuesday March 4 (this is in lieu of our regular class on Wednesday March 5). Here is the information about the Pound Lecture:

 

 

The Upside Down World of Financial Takings

Speaker: Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law

 

DATE: Tuesday, March 4, 2014
TIME: 12:00 - 1:00pm
College of Law, Auditorium
Approved for 1 CLE credit hour

DESCRIPTION:

Modern takings law tends to concentrate on the distinction between physical takings by occupation and regulations of land use.  Financial claims fit only uneasily into this two part landscape. The lack of a coherent theory of how financial liens and contract claims should be treated has led to some serious confusion in the area.  There are many cases, such as the recent dispute over the private stock holdings in Fannie Mae and Freddie Mac where courts often do not supply enough protection to property interests against confiscation, and other cases, like the pension claims by union workers against the state, where the constitutional protection is too strong.  In this lecture Professor Epstein will develop a unified approach to government takings to explain why today's dominant legal approach has it backwards.

California Couple Finds $10M Buried Treasure in Back Yard

Yikes! Here is the link.

Poletown Movie

Thursday's class will concern a showing of the documentary on the Poletown case.

We will meet from 2:10 until 4:10 PM.

As a result of the double length class on Thursday, there will be no class on Friday.

Mid-Year Test results

Here is the breakdown for the Midyear Exercise:

1 Student scored 100 points (bravo!)

2 Students scored 96 points

4 Students scored 92 points
 

2 Students scored 88 points

4 Students scored 84 points

5 Students scored 80 points

5 Students scored 76 points

3 Students scored 72 points

2 Students scored 68 points

2 Students scored 64 points

3 Students scored 60 points
 

4 Students scored 56 points

4 Students scored 52 Points
 

1 Student scored 48 Points

1 Student scored 40 points

1 Student scored 32 points
 

The test median was 76 points

The average score was 71.92
 
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 pleased with the performance of the class as a whole. But there is always room for improvement

I hope you have a great Spring Semester 2014!