Common Law Lawyering

Now that we have read a number of cases in one area of Property law, re-read Justice Scalia's thoughts on the common law--link

Let's Play 2! Doubleheader on Friday August 24

This Friday we will meet from 12:10 until 2:15 for a double class session. We will read Casebook p. 113-124 (Popov v. Hayahsi ) and enjoy an in-class in class screening of Up For Grabs, a documentary about the Popov case. BYOP (bring ytour own popcorn).

Judge McCarthy and King Solomon

Would King Solomon approve of Judge Kevin "You're So Vain" McCarthy's decision to give each of the parties a one-half interest in the Bonds home run ball?

Property and Liberty

Some people view property as an evil (as in "money [property] is the root of all evil") that must be regulated and restrained.

I have a different view. I think property is inextricably intertwined with liberty--with the liberty to raise a family, with the liberty to educate children, with the liberty to worship, with the liberty of free speech--and these (as well as other) fundamental liberties are vulnerable in a society that does not value property rights.

For example, one way to restrict my liberty to educate my children in a private religious school is to require all students to attend secular public schools only. The Supreme Court of the United States invalidated an Oregon law that required public education for all school-aged children as violating the constitutional right of parents to direct the education and religious upbringing of their children. May government do indirectly (through zoning laws that restrict private schools from locating in the community) what it cannot do directly (by prohibiting non-public education of children)? May the state use zoning laws to prevent churches from opening in certain locations? May the state use zoning laws to zone out "adult bookstores?" Or abortion clinics? May the state use zoning laws to prohibit homeowners from conducting regular prayer meetings in their homes?

As you can see, it is easy for the state to restrict our most sacred (as well as some not-so-sacred) liberties merely by restricting the property upon which we exercise those liberties.

Look for these kinds of issues to arise throughout the course.

Finders cases are lots of fun, but we will have bigger fish than these to fry!

Should the Courts "Do Justice" or "Apply the Law"?

Judge Learned Hand

Justice Holmes

There is a great, old story in the law about two great judges. Here is one writer's account:

"There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, 'Do justice, sir, do justice.' Holmes stopped the carriage and reproved Hand: 'That is not my job. It is my job to apply the law.'"

Hmmm. What is the point Holmes was trying to make? This has come up recently because President Obama says that he believes Justices should decide cases with "empathy." What does that mean? Should judges overlook the law when their personal sense of empathy tells them to do so? Or should they follow the law where ever it takes them, even if they don't like the result the law requires? Think about this as you begin your careers in the law.