Review Session--Saturday April 27 at 1:15

                                      Me at Notre Dame, Paris 2015


We will have an exam Q & A session on Saturday April 27 in Room 1:13 at 1:15 PM.

Exclusionary Zoning and Little League Baseball

Here is a link to an incredible article about exclusionary zoning and, incredibly, little league baseball.

Here are some money passages from the article:

In one of the country's richest towns — where Mercedes, BMWs and Land Rovers cruise tree-lined streets of multimillion-dollar homes — a man who proposed building more accessible housing says angry neighbors took out their frustration on his son: a 9-year-old boy who was demoted to a lower-level Little League team.

Christopher Stefanoni says in a federal lawsuit that residents of Darien are so worried that affordable housing will draw black people to town that they'll do just about anything to stop it, including using his son to retaliate against him. Town and Little League officials say that's completely false.

Stefanoni said he has had three affordable housing proposals rejected by the town. They include a 16-apartment complex with five affordable units and a 30-apartment development with nine affordable units. A court sent both of those back to the town's planning and zoning commission for review and approved a third. The commission cited traffic safety and other concerns.

The lawsuit includes allegations about city officials blocking affordable housing applications to keep blacks from moving into town, claims identical to those in another pending federal lawsuit against the town by a different affordable housing developer whose project was rejected.

Rob Williamson, owner of Uncle's Deli in downtown Darien, said he doesn't believe the town is being discriminatory in rejecting affordable housing applications.

"The town's small, very tight knit," the resident of nearby Stamford said. "That doesn't mean we want to keep anyone out. It's a small, little New England town and I think they want to keep it that way."

 Now, don't rush to judgment. Maybe the kid can't hit a 40 mph fastball. All we have at this stage is Dad's allegations. But still....

Restrictive Covenants Barring Residence by Convicted Sex Offenders

Over at the PropertyProf blog, there is a very interesting post about covenants being used to forbid convicted sex offenders from living in residential developments. Here is a key excerpt:

Common interest community covenants against registered sex offenders appear to be spreading like wildfire -- I've seen quite a few press reports about them in the past couple of months. As far as I know, only one case has considered the validity of such a covenant, Mulligan v. Panther Valley Property Owners Assn., 766 A.2d 1186 (N.J. App. Div. 2001).

In Mulligan, the court rejected what essentially was a facial challenge to the covenant, but left open the possibility that an anti-sex-offender covenant might (or might not) be found to be invalid in a case with a more developed record if the plaintiff could show that "a large segment of the housing market [was] unavailable to one category of individual" or that "the Association performs quasi-municipal functions, such that its actions perhaps should be viewed as analogous to governmental actions in some regards."

 The post also contains a well-drafted covenant of this type.

Recording for April 4 & 5 Classes

A number of you called in sick today (and for tomorrow as well) so I asked IT to record the classes.

Good Afternoon,

                Here is the requested link to your recording (April 4):

https://unl.box.com/s/k1lvatiqmvcd0vbmiuvq16oe7lphmced

Richard McDermott

- Technology Support Specialist - University of Nebraska College of Law


 

                Here is the requested link to your recording (April 5):

https://unl.box.com/s/qmd6wrrwi5olzqwlmnpwq2vdao3olt48

Richard McDermott

A Word About Easements and Licenses

                       Hayes Carll "Bad Liver and a Broken Heart" Live in Chicago May 2019


I am aware that we went through this material fairly quickly.

My goal was not to go into great depth about the details of all the rules and doctrines, but rather to expose you to the basic types of easements and the legal vocabulary. I also wanted to use the cases to show you how easement issues can arise because of inattention and sloppiness when land deals are put together.

I think we accomplished those goals, and the Hornbook ought to provide some extra coverage of the basic rules and doctrines.

On to a discussion of covenants running with the land, a subject I approach from the perspective of liberty.

Gotham Times Article on Increased Housing Segregation

link

Here is a money quote:

As a report by Kendra Bischoff of Cornell and Sean F. Reardon of Stanford pointed out last year: “The proportion of families living in affluent neighborhoods more than doubled from 7 percent in 1970 to 15 percent in 2009. Likewise, the proportion of families in poor neighborhoods doubled from 8 percent to 18 percent over the same period.”

This is consistent with a 2012 Pew Research Center report that found, “Residential segregation by income has increased during the past three decades across the United States and in 27 of the nation’s 30 largest major metropolitan areas, according to a new analysis of census tract and household income data.”

The report added, “The analysis finds that 28 percent of lower-income households in 2010 were located in a majority lower-income census tract, up from 23 percent in 1980, and that 18 percent of upper-income households were located in a majority upper-income census tract, up from 9 percent in 1980.”

As Richard Florida wrote in The Atlantic last month, “The poor face higher levels of segregation in larger, denser metros.” In affluent cities, he said, “The segregation of poverty is more pronounced,” adding, “The poor also face greater levels of segregation in more advanced, knowledge-based metros.”

According to a study published last year in the journal Education and Urban Society, “Students are more racially segregated in schools today than they were in the late 1960s and prior to the enforcement of court-ordered desegregation in school districts across the country.”

In fact, a report last month by researchers at the Civil Rights Project of the University of California, Los Angeles, found, “New York has the most segregated schools in the country.”

Martin Luther King Jr.’s dream about the coming together of children of different races seems, in some ways, to grow more faint.

Today--5 Minutes Late

I will be about 5 minutes late for class today.

I have a short task I have to perform at 1:15.

Willard Diagram

Estoppel and Part Performance

Assume A orally agrees to grant his neighbor, B, a perpetual right-of-way easement over A's property Blackacre from B's property Whiteacre. B spends $5000 grading the right-of-way and putting down some gravel. After a few years, A informs B that he is no longer allowed to use the right-of-way on Blackacre.

The doctrines of estoppel and part performance are equitable doctrines which take an oral easement out of the Staute of Frauds. In other words, the oral easement will be recognized in equity which, in order to do justice, will "block the Staute's application." (Hornbook at 457).

Estoppel Theory

Hornbook p. 458: "If this theory is employed, one reasons as follows: the oral grantor represented to the grantee that he had an easement...upon the grantor's land; in reliance upon the representation, the grantee expended money or labor or made improvements upon or with reference to the easement...--detrimental reliance; and therefore, the grantor became estopped to deny the easement."


Part Performance Theory

Hornbook at p. 458: "The same facts that invoke the estoppel theory will usually support the equitable part performance theory. Here the reasoning is that the oral grantee's acts, making improvements of a kind one would make if one had an easement...,give tangible evidence, independent of the spoken words, that such an interest exists. The acts themselves 'speak of' an easement...; the trier of fact need not rely on the oral statements alone." In other words, the acts of part performance substitute for a writing to demonstrate or prove the existence of the easement.

Oral Licenses

But now suppose the oral promise is "I hereby give you permission, revocable at will, to use my land for a right-of-way." The licensee spends money constructing the right-of-way. The above doctrines allow an oral easement to be given effect in accordance with the oral promise notwithstanding the Statute of Frauds. But should those doctrines be used to transform a revocable oral incense into an irrevocable perpetual easement? Does justice require forcing a "grantor" to give much more than he promised to give?

As Prof. Clark Once put it: "Instead of the picture of the licensor prevented by the courts from taking advantage of his own fraud, it is suggested that a truer picture is that of a kind, neighborly individual who finds himself outwitted, under this rule of law, by a clever land-grabber."

What do you all think?

Pound Lecture Wednesday March 27 at Noon!!!!

I am requiring the class to attend the Pound Lecture on Wednesday March 27 at Noon in the Auditorium. The lecture is property related--Corporate Purpose in a Populist Era, by one of the leading Corporate Law Profs in the country, Prof. Stephen Bainbridge.

Note: By a unanimous vote of the class, we will account for the required Pound Lecture by cancelling class tomorrow--Thursday March 14.

HAPPY SPRING BREAK

"Ryan the Lion" at the Bar

This was an ad I saw on a bus in Dallas over Spring Break.  No comment.

Class Schedule

                                               Katie Duncan with her Paint, "Easy" Duncan

We have 8 classes that need to be canceled (7 because of our 60-minute classes and 1 because of our double-header for Poletown Documentary).


Here is what I know so far about class cancellations:

1. Wed-Fri February 20-22
4. Friday March 15
5.Wednesday April 3
6.Wednesday April 10
7. 
8.


The class we missed last week due to my flight being cancelled (Wednesday January 23) will be made up with a review session we will have shortly before our final exam. And also by your attending The Pound Lecture in March (which I am requiring).

Recording of Today's Class (Thursday March 7)

Several of you missed class today because of snow. I asked Richard to record it:

Good Afternoon,

                Here is the requested link to your recording:

https://unl.box.com/s/3qxt57rx070zsmlsbinfiy2hfzayoiai

Richard McDermott

Link to Recording of Friday's Early Class

        Here is the requested link to your recording:

https://unl.box.com/s/wi1zu31g01ulo7b36g8xsna40oc67149

Richard McDermott

1L Scheduling Survey

Please comment below--we are interested in your views.

Here are some of the options:

1. Faculty is committed to ensuring that no more than 4 classes will be scheduled for any one day

2. Should classes be 50 minutes three times a week, 60 minutes three times a week, or 75 minutes twice a week.

60 minute classes allow 7 classes to be cancelled without make-ups.
75 minute classes allow zero classes to be cancelled--make-up classes (for snow days, holidays, days when professor has a conflict) will be required (probably on Saturdays or nights)

3. should International Perspectives course be moved to 2L year and Criminal Law moved to Spring Semester.

4. Any other scheduling concerns.

Class Friday March 1

This Friday (March 1) our class will meet from 12:15 to 1:15 (instead of from 1:15 to 2:15). I have to catch a flight to NYC for a debate at Fordham Law School.

I will have IT record the class and post a link for those of you who have a conflict.

Greetings From Texas

I am a poor selfie photographer, but here I am at the Joe Ely show just outside of Fort Worth, Texas.

I missed the snow, but I will be back next week.

I am in the Building! See y'all at 1:15

Snow doesn't bother me!

Liberty in an Age of Security

Rand Paul on airport security and our loss of liberty:

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?”

Quiet Prayer Meetings in Private Homes as an Actionable Private Nuisance

Once a week for 20 to 25 cars. Here is a general definition:

Private Nuisance

A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.
Examples of private nuisances abound. Nuisances that interfere with the physical condition of the land include vibration or blasting that damages a house; destruction of crops; raising of a water table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance may also disturb an occupant's mental tranquility, such as a neighbor who keeps a vicious dog, even though an injury is only threatened and has not actually occurred.

I am not aware of any case where a large, once-a-week social gathering of friends in a private home has been found to constitute a nuisance. A fraternity house that has many noisy parties dragging on late into the night, perhaps. But a quiet prayer meeting from 4 to 6 PM every Sunday, even if it brings 20 or 25 cars onto the public roads of a residential neighborhood, no way.

You could bring the action and pay a lawyer $200 an hour to represent you, but if you win I will root for the Yankees for the rest of my life. It is not the Murphys who are acting unreasonably here. It is their overly-sensitive neighbors.

Prove me wrong.

Interesting RLUIPA Case

Religious freedom includes the right to make wine and beer. Illinois county board settles suit under Religious Land Use and Institutionalized Persons Act allowing a Catholic organization a brewery and winery. Court lambastes objectors’ religious animus.

 

Link

Zoning Out Religious Use

Over at the Religion Clause blog there is an interesting post about the clash between zoning laws and religious land use.

Here is the post:

"An article in yesterday's Lancaster (PA) Sunday News raises an interesting religious land use issue posed by the apparently growing practice of churches renting out movie theaters for use for religious services on Sunday mornings. The zoning rules in Manheim Township, Pennsylvania permit theaters and other commercial uses in industrial zones, but not churches. Township zoning officials have issued a notice of violation to the owner of the Penn Cinema who rents out his theater each Sunday to the Crossings Church. Theater owner Penn Ketchum argues that renting out the theater for a church service does not change the character of the building. He argues: "While they're finishing up their service, we're literally opening our doors to the moviegoing public."... At no time do we cease to be a movie theater. We continue to be well within our parking ratios, as well as building capacity. The service still leaves literally 90 percent of the building unoccupied.... To me there's a big difference between a church and a church service.'"

There is a great deal of hostility in many communities toward religious land use, and a recent federal civil rights law has altered the playing field between regulators and religious land users. This is one of the most important and interesting property issues under modern law. Our study of this issue is one of the highlights of the course for me.

RLUIPA and the Compelling Interest Test

The key to understanding Constitutional Law is to understand the various "standards of review" the Court applies to various claims of constitutional rights. Consider this:

STANDARDS OF REVIEW


I. MINIMAL SCRUTINY (DEFERENCE)

Rational Basis Test - The government classification need only be rationally or conceivably related [Means] to any legitimate state interest [Ends].


II. INTERMEDIATE SCRUTINY (SKEPTICISM)

Intermediate Scrutiny Test - The government restriction must serve important governmental objectives [Ends] and must be substantially related to the achievement of those objectives [Means]. ["Intermediate scrutiny always asks is there some less restrictive alternative available?" Epstein, Takings at 138.]


III. STRICT SCRUTINY (CYNICISM)

The governmental restriction must be necessary (i.e., the least restrictive means) [Means] to achieve a compelling state interest [Ends]. See Nowak at 530.

Rabbi With a Zoning Dispute

Small religious assemblies also have zoning problems.

Later this week, we will be studying clashes between religious liberty and property regulations. Here is a case from a few years ago.

From the Religion Clause blog:

This week's New Jersey Jewish Standard reports on a zoning dispute in Teaneck (NJ) over the use by a rabbi of his home for religious services. The house was purchased in October 2007 by Etz Chaim of Teaneck which hired Rabbi Daniel Feldman as its leader and rented the house to him. Feldman began in November to hold services in his living room. Neighbors petitioned the township, but it took no action, apparently in reliance on a 1985 New Jersey Superior Court case, Farhi v. Comm'rs of Deal [Lexis link], that held the state's constitution prohibits a municipality from using its zoning power to prohibit the free exercise of religious activity in the privacy of one's home.

On July 18, Feldman moved the services from his living room to his family room. The township's zoning ordinance requires a zoning permit where there has been a "change in use" of a piece of property. Neighbors filed a second petition saying that the July 18 move of the services-- now attended by 20 to 25 families-- was a change in use. Feldman says that the services on Friday evening and Saturday morning (as well as holidays) only total about 5 hours per week-- about 3% of the time-- too little to constitute a change in use. In a letter, however, the Teaneck zoning officer told Feldman to cease and desist from using the premises as a house of worship or place of public assembly. Feldman, who argues that this is still merely a protected private prayer group, has filed an appeal with the township zoning board.

Snap Quiz on The Godfather and Exactions

 "Some day, and that day may never come, I will call upon you to do a service for me. But until that day, consider this justice a gift on my daughter's wedding day."

Don Corleone did indeed call on Bonasera to do a service for him. What service did Bonasera perform for the Don?

Stuck Inside of South Bend With the Lincoln Blues Again

My flight home from Notre Dame today was cancelled due to bad weather.

Thus, no class tomorrow (Wednesday January 23).

Stay warm and safe.

Let's Vote

                                           Justice Thomas at Nebraska Law


Today (Wednesday January 16) you vote to choose the date we will cancel to make up for last Thursdays double class.

Choose well.

Poletown Lives Documentary

In case you missed today's class showing of Poletown Lives, here is a link from the library you can use to access it online:

Poletown Lives:
https://unl.box.com/s/rz2hh2hb2kzf75v9k48gdxem5ufekbrv

A Modest Proposal

Sunset Meadows photo by Hannah Duncan
 

Why not change the law of Takings to require more than "Just Compensation" when property is taken without the consent of the landowner. Why not adopt a rule requiring government to pay some multiple of fair market value (perhaps twice or thrice)? This would recognize that when landowners are evicted from their own property they suffer more than mere economic loss; they also suffer dignity harm and what tort lawyers would call "pain and suffering and emotional distress" damages, which in fairness should also be compensated. What are your thoughts?

Evolution or Creation?

Some commentators reject an originalist theory of interpreting the Constitution in favor of a theory that views the Constitution as a living, breathing, evolving organism. For example, Prof. Erwin Chemerinsky says that "nonoriginalists believe that the Constitution's meaning is not limited to what the framers intended; rather, the meaning and application of constitutional provisions should evolve by interpretation." Justice Stevens seems to be adopting this theory of interpretation in Kelo when he talks about the "always evolving needs of society" producing a "more natural" interpretation of "public use" as "public purpose." See p. 795.

Is this really a theory of evolution? Or is it more honestly a theory of creation? How does the Constitution "evolve" into a new species in so brief a time? Surely, the sudden appearance of new constitutional rules in the fossil record is best explained by a theory of intelligent design, of Creation if you please, by shifting Supreme Court majorities. Thus, when Prof. Chemerinsky says that new constitutional rights "evolve by interpretation" what he means is these new constitutional species are called into being by judicial decisions (intelligent design) written by a Creator consisting of no fewer than 5 unelected lawyers serving lifetime appointments on the Supreme Court.

When the Court speaks of the Constitution evolving is this really an attempt to mask or conceal "what's really going on" as Marvin Gaye might have put it? Why doesn't the Court simply admit that it is making up new constitutional provisions when it calls into being some new rule never intended by the Framers?

Is the Supreme Court's job to amend or re-write the Constitution? Or should the Court faithfully apply the written Constitution ratified by we the People?

Mid-Year Exam Results: Fall 2018

                                               Justice Gorsuch (Art by Josh Duncan)


                                       


Here is the breakdown for the Midyear Exercise:

  3 Students scored 100 points

  4 Students scored 96 points

  5 Students scored 92 points

  2 Students scored 88 points

  7 Students scored 84 points

  3 Students scored 80 points

  9 Students scored 76 points

  5 Students scored 72 points

  9 Students scored 68 points

  3 Students scored 64

  5 Students scored 60 points

 

  6 Students scored 56 points

  2 Students scored 52 Points
 

  2 Students scored 48 Points

  1 Student scored 44 Points

The test median was 74 points.


Pay no attention to the arbitrary "quartiles."  They are meaningless. Totally meaningless. The only thing that "counts" is the number of points you scored out of a possible 100 points.

Thursday Jan 11--Let's Play Two for Ernie Banks

Notice--Thursday Jan. 10-- we will have a double class session (from 12:15 until 2:15).

We will watch a Takings film and then discuss the public use requirement under the Takings Clause.

Poletown Case

Here is a brief summary of the Poletown case from Wikipedia (link):

Poletown East is a neighborhood area of Detroit, Michigan bordering the enclave city of Hamtramck. The area was named after the Polish immigrants who originally lived in the area. A portion of residential area known as Poletown became the Hamtramck auto assembly plant in 1981 with those residents relocated by the city of Detroit which claimed eminent domain in order to make way for an automobile plant.[1]

First settled in the 1870s when the first waves of Polish immigrants came to Detroit, Poletown was the heart of Detroit's Polish community for many years. The nucleus of the community was the St. Albertus Catholic Church, which opened in 1873 and closed in 1990. Poletown experienced its greatest period of growth during the 1920s and 1930s as thousands of Polish immigrants came to Detroit in search of jobs in auto plants and the slaughterhouses that were in the area. Poletown was not only home to Poles, but also to Italians and Blacks. During the 1950s and 60s however, Poletown fell on hard times as freeway construction and urban renewal projects destroyed the neighborhood.

In 1981 the neighborhood was cleared to make way for the construction of the heavily subsidized General Motors Detroit/Hamtramck Assembly plant. The city of Detroit spent some $200 million on land acquisition. It used the power of eminent domain to evict the 4,200 people who lived in the area, along with their 1,300 homes, 140 businesses, six churches and a major hospital.^[2] The plant was built at the boundary of Hamtramck and Detroit as a BOC factory (Buick-Oldsmobile-Cadillac) and became known as the "Poletown Plant". However, the rosy projections of 6000 jobs did not materialize. Employment at the new plant never exceeded half of that number. In the long run, General Motors had to file for bankruptcy.

The displaced residents sued the city to prevent the taking of their properties, arguing that this was a taking for private purposes, not for "public use" as required by the [Michigan] Constitution. However, a divided Michigan Supreme Court ruled that economic development was a permissible use of eminent domain. Public resistance especially from one Catholic parish led to national news attention and the involvement of Ralph Nader and the Gray Panthers. A 29-day sit-in at the Immaculate Conception Church came to an end on July 14, 1981 when police forcibly evicted 20 people from the church.

The decision of the court became a landmark case for "public use" eminent domain matters, and simultaneously a poster child for eminent domain abuse. The decision was overruled by the Michigan Supreme Court in the 2004 decision County of Wayne v. Hathcock. (Although the 2005 United States Supreme Court decision in the case of Kelo v. City of New London states that the use of eminent domain to promote economic development is constitutional on a federal level, the opinion in Kelo cites the Hathcock decision as an example of how states may choose to impose their own restrictions on the taking of property.)

And here is another brief summary of the Poletown decision and its subsequent overruling by the Michigan Supreme Court (link):

The Poletown case
In 1981, the Michigan Supreme Court decided one of the most controversial cases involving eminent domain. In that case, the city of Detroit had seized thousands of homes, businesses, and churches in an area called Poletown (named for the large Polish population in that area) so that General Motors could build a plant on the site. The city claimed that the “public use” limitation was met by virtue of the fact that the new plant would “create jobs” and increase the city’s tax base. Opponents contended that this wasn’t truly a “public use” because the property owners’ property was simply being taken from them to be given to General Motors.
The Michigan Supreme Court ruled in favor of the city, and the effects of that decision rippled out nationwide. As an article posted on NationalReviewOnline entitled “This Land Is Your Land,” by Timothy Sandefur, observed,

Eminent domain, once limited to public uses like roads or post offices, was unleashed in the service of any well-heeled private party able to persuade the local government to see things its way. In the years since Poletown, eminent-domain abuse has exploded nationwide. As Ramesh Ponnuru has pointed out, powerful corporations frequently send representatives to lobby cities for “free” real estate. The city takes a neighborhood, usually of modest homes, and gives it to a developer or a megastore, and then rakes in the higher taxes. The only losers are the home- and small-business owners, who lack the political influence necessary to persuade local officials to respect their rights. Poletown has become the leading symbol of eminent-domain abuse.

In other words, what began as a power to seize property on which to build courthouses and police stations was extended to seizing and redistributing property to alleviate “blight” and then extended again to seizing and redistributing property to improve the economy and the government’s tax base. Of course, a cynic would be forgiven for concluding that the power was being used to take property from those who lacked political influence in order to give it to well-heeled, politically powerful friends of government officials.

A trend toward property rights
In July 2004 the Michigan Supreme Court overturned its infamous decision in the Poletown case. In Wayne County v. Hathcock, the county had condemned private property for the purpose of giving it to a private developer, arguing that the project would serve the public good through jobs and economic prosperity. The court held that the Poletown case had been wrongly decided and that the “public use” power could not encompass the taking of one person’s property for the purpose of giving it to another person. The August 4, 2004, issue of the Detroit News editorialized,

Michigan’s Supreme Court restored the sanctity of private property rights by reversing a quarter-century-old ruling that allowed the city of Detroit to uproot families and businesses in the Poletown neighborhood so General Motors Corp. could build a factory on their land. The original case was a blow to constitutional protections. The new, unanimous ruling restores the concept that government can’t just take away private property because it thinks someone else might use the property better. . .. Municipalities and developers can adjust. Wayne County is going ahead with the Pinnacle Park project. The developers will now have to work harder to obtain rights to land from private owners and pay a higher price. But few constitutional rights are as important as private property rights. The court, in bringing Michigan back into compliance with the intent of the Constitution, served Michigan property owners well.