Dobbs v. Jackson Women's Health Organization and the Abortion Liberty: Something to think about over the break

 I am not--not--assigning this for our course. But I know many of you are very interested in this case and in the abortion liberty. Here are some resources you may wish to consult over the Winter Break.

Here is a link to Oyez on Dobbs

This includes a link to the oral argument in the case. The oral argument was very interesting. It runs about 2 hours, but it is worth your time.

And here is how Oyez summarizes the case:

 

Facts of the case

In 2018, Mississippi passed a law called the “Gestational Age Act,” which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order (TRO). After a hearing, the district court granted the TRO while the litigation proceeded to discovery. After discovery, the district court granted the clinic’s motion for summary judgment and enjoined Mississippi from enforcing the law, finding that the state had not provided evidence that a fetus would be viable at 15 weeks, and Supreme Court precedent prohibits states from banning abortions prior to viability. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Question

Is Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age unconstitutional?

 

The Supreme Court will decide the case in 2022, probably at the end of June or early July.

And remember, both sides of this issue are pursuing social justice and life, liberty, and equality for all. They just have competing visions of what is at stake, competing understandings of the good. The mission of the Law College does not pick ideological sides. We  encourage all of our students to pursue life, liberty, and equality based upon your own vision of social justice.

 

Art Can Speak Volumes Without a Single Word

Updated Version of Edward Hopper's Nighthawks: Fear vs living life without demanding zero risks

Merry Christmas and Happy Holidays.

Violent Political Protest and the State's Obligation to Protect Private Property

 As we get ready to enjoy our Winter Break, let me ask you this question: Is violent political protest--burning buildings, looting stores and shops, and assaulting those who disagree with you--a legitimate form of political protest? Ever? Sometimes? When? To protest police brutality and racism when an unarmed suspect is killed by police? When protesting the violent death-by-abortion of 60 million unborn children? When protesting the results of an election?

 Should government stand down, stand by, and allow such politically-motivated violence to take place? 

Sadly, this is a question that must be posed in contemporary America. It directly relates to property and the obligation of the state to protect our property and our businesses from unlawful violence and destruction. When protest takes the form of violence, it is no longer political speech protected by the First Amendment; it is criminal behavior that destroys the property, businesses, and livelihoods of others.

Please think about it as you prepare to become inclusive leaders protecting the rule of law and  justice-for-all.

Mid-year Exam Announcements

 

 

1. I have scheduled a Q & A session for Monday December 13 at 6 PM in Room 113. It is, of course, optional. But if you have questions, please come and I will try to answer them.

2. On the first class of Spring semester (Wednesday January 19, 2022), we will go over the exam so you can see what you got right and what you got wrong. There will be no assignment for that class.

See you on December 13!

Lol: Plumber Finds $600,000 Buried In Bathroom Wall At Lakewood Church Could the plumber have claimed, finders keepers?

 Here is Prof. Josh Blackman's article (dated today--12/3/21):

https://reason.com/volokh/2021/12/03/plumber-finds-600000-buried-in-bathroom-wall-at-lakewood-church/

Optional Reading Over the Winter Break

 In Spring Semester, we start off with a fairly deep dive into some constitutional law topics relating to property. The first topic we will will discuss is what some call the great debate between Original Meaning Originalism and the Living Constitution. Ilan Wurman has written an excellent introduction to originalism that should help you understand contemporary battles in the Supreme Court.

I am not assigning this book, just suggesting it for some good reading over the Winter Break. The book is both short and readable (and inexpensive). Here it is (Ilan Wurman, A Debt Against the Living: An Introduction to Originalism):

https://www.amazon.com/Debt-Against-Living-Introduction-Originalism/dp/1108412165/ref=sr_1_1?keywords=Ilan+Wurman%2C+A+Debt+Against+the+Living%3A+An+Introduction+to+Originalism&qid=1637711519&qsid=137-0178584-2236403&s=books&sr=1-1&sres=1108412165&srpt=ABIS_BOOK

You Did It!

  

                                         My Twin Grandchildren, Delaney and Duncan Carlson

 

 You survived the First Semester of Property. No class tomorrow, which means we are done for the semester.

I really enjoyed this year's Property class. This might be the last time I teach Property, and it has been a lot of fun. I am impressed with what I have seen so far, and I look forward to learning how you all do on the midyear exercise.

Keep watching the blog for an announcement of our pre-exam Q & A session.

Have a great Thanksgiving. Spend time with family and friends.

Mercer v. Wayman (p. 428)

 This case once again demonstrates the need for wills. Do you suppose John Mercer, who died intestate survived by 5 sons, two daughters, and his widow, would have wanted his farm to be owned in cotenancy by so many heirs? 

Or would he have wanted the farm to go to his son, Fred, maybe with a life estate for his (i.e. John's) widow (Fred's mother)? 

I don't know, but it would have been nice if John Mercer had a lawyer advise him about estate planning and then draft a will carrying out John's estate plan.

Notice the issue in this case involves what the law requires when one cotenant claims his sole possession of the property amounts to adverse possession against one or more of his cotenants. The issue is primarily about when the possession of one cotenant becomes "open and notorious" as to other cotenants.

Laura v. Christian and Economic Relations Between Cotenants

 We could spend several weeks studying all the complexities of the economic relations between cotenants.

In general, when a cotenancy comes to an end—usually in a partition action—there will be an accounting to settle up the economic relations among the cotenants. Some may have contributed more than their share to the upkeep of the property; some may have collected more than their share of the rents or profits. And all of these economic matters will be settled equitably by the court, as part of the accounting, when the property is sold and the proceeds of the sale are distributed to the cotenants.

Basically, that is all you need to know for purposes of this course. Just be aware of the need to settle all accounts equitably when the cotenancy is terminated.

Laura v. Christian (p. 420)

Pl (Laura) and three others owned Blackacre as tenants-in-common subject to a mortgage. The parties defaulted on their mortgage payments and the mortgagee (probably a bank) instituted an action to foreclose the mortgage. A foreclosure sale was ordered and Laura paid off the mortgage loan in full in order to protect the property from a forced sale upon foreclosure.

Who is suing whom for what in this case?

What is Laura's position? What is Christian's (Laura's co-tenant) position?

Exam Instructions

 

Final Examination

Wednesday, December 15, 2021

One (1) Hour Thirty (30) Minutes Exam 4 - CLOSED mode

BE SURE YOUR EXAMINATION IS

COMPLETE

 

Exam Number                    

 

 

 

 

 

 

 

INSTRUCTIONS

 

1.              This is a 90 minute closed book examination. You may not have any written or printed materials with you while taking the examination nor may you consult any written or printed materials before turning in all portions of the examination.

 

This exam should be taken using Exam 4 in CLOSED mode.

 

No cell phones or other unauthorized electronics are allowed in the exam room.

 

2.              Be sure that you have all pages of the examination question sheet.

 

3.              Be sure to place your examination number (not your name) on page 1 of this question sheet and on the answer sheet.

 

4.              Part II of this examination consists of multiple choice questions that must be answered in Exam 4 by clicking on the Multiple Choice tab at the top of the screen. Click the “Hide” button to toggle back to the essay page for Part I of your exam.

 

5.              If you finish the exam more than five minutes early, you can turn in your exam in the Dean's Office. Otherwise, you must turn in your exam in this room -- regardless of where you take the exam.

 

6.              You must return the exam questions.

 

7.              It is an Honor Code violation to reproduce or retain a copy of any portion of this exam.

 

  8.              Unless otherwise indicated in the questions, answer the questions in accordance with traditional common law rules and principles. In particular, unless otherwise indicated, you  should consider the following to be in force:

--Statute De Donis Conditionalibus

--Statute of Uses

--Statute Quia Emptores

--Rule in Shelley's Case

--Doctrine of Worthier Title

--Destructibility of Contingent Remainders

--Doctrine of Merger

--Rule Against Perpetuities

--Ordinary deed capable of creating any type of future interest which could be created by a conveyance operating under the Statute of Uses.  

 

9.              Your score will be based solely on the number of correct answers. It is therefore to your advantage to answer all questions. This examination counts for a total of 100 points and each question is of equal weight.

 

1.      

Remember there will also be 25 points allocated for attendance. So the exam counts for 100 points, but an additional 25 points can be earned by affirming attendance. Part I of the exam is where you will be asked to affirm your attendance.

 

1.     

Thinking versus Feeling: Something to Ponder Over the Weekend

Prof. R.C. Sproul has written something I think captures the essence of real education:

"I used to get cantankerous with my...students when I would ask for their opinion about a particular issue and they would answer 'Well. professor, I feel such and such is the truth.' I would reply, 'I did not ask you how you feel about it; I am asking what you think.' Conviction of truth is not a sensual matter; it is primarily the assent of the mind."

Something to think about as we enjoy a 3-day weekend.

Have A Great Weekend

 Remember, no class tomorrow. Let's celebrate a belated Veterans Day holiday tomorrow.

And vets in the class--thank you for your service and your sacrifices!

Wednesday November 10 Is Evaluation Day

 On Wednesday November 10, I will leave you alone for the first 15 minutes of class to give you time to complete the evaluations.

I will show up at 1:30 PM.

Profs. Robby George and Cornel West on Truthseeking and Democracy

 

 

 

If you are looking for something to do over the 3-day weekend, here is a link to an intresting program at Cornell Law School:

Truth-Seeking, Democracy, and Freedom of Thought and Expression

Check it out! Robert George and Cornel West discuss Truth-Seeking, Democracy, and Freedom of Thought and Expression as part of The Peter ’69 and Marilyn ’69 Coors Conversation Series. Click here to view the recording.

Exam Tip: Take Advantage of the Blog Posts

 

As I have said before, I am not a big fan of outlines. I think outlines are overly simplistic and don't provide what you really need to know to prepare for a law school exam. I have never written an outline in my life!

I am a big fan of good notes, notes that are based upon our class discussions. So, I really encourage you to take good notes, and to copy and paste helpful excerpts from the blog posts. In the old days, those blog posts were just rough notes that I used to discuss in class. Some people were able to take good notes on our discussions and hypos; but some were not able to do so. It is difficult to listen and write at the same time. So, I wrote my notes up into what I hope are lucid blog posts, and everyone gets equal access to what I am trying to teach. One good study habit is to transcribe your notes soon after the class in which you took them (while still fresh in your mind). And consolidate your notes with helpful excerpts from the blog posts. 

If I were taking the exam in my course, I would take advantage of the blog. That is the first place to go when you are trying to master a case, an issue, a doctrine, or a particular estate or future interest that we have studied in this course.

Friday October 29: Assignment

For tomorrow, please read assignment 14:

 14. Casebook p. 355-370; Handout 6; Hornbook P. 97-113 (Sections 3.17 to 3.22)

Don't spend too much time on the Shaver case (p. 361). It raises issues about options to renew leases which we will not be getting into. We will not cover this case in class nor will I hold you responsible for it.
The only thing to notice about this case is FN 24 on page 363 which quotes the Uniform Statutory Rule Against Perpetuities.

Schedule: Pre-Made-Up Days

 Let's use 2 of our pre-made-up days to cancel these two Friday classes:

1. November 5

2. November 12 

You can go home and visit your family for a nice long weekend!

Executive Summary: The Doctrine of Worthier Title

 The doctrine of worthier title, when applied to an inter vivos conveyance of property, prefers a construction of language that would otherwise create a contingent remainder in the grantor's heirs as the retention of a reversion by the Grantor.

Thus, Grutz conveys "to B for life, then to the Grantor's heirs."

What is the state of the title without the rule?

B--life estate
G's heirs--contingent remainder

With the rule?

B--life estate
G--reversion
G's heirs--nothing

Suppose G conveys his reversion to me? What do G's heirs get on his death? Nothing: I own G's reversion in Fee Simple Absolute.

Notice it is a rule of construction not a rule of law. Thus, if the Grutz conveys “to A for life, remainder to my heirs in Fee Simple Absolute,” the rule should not apply and Grutz’s heirs should take a contingent remainder.

Nebraska Law: Inter Vivos Branch of Doctrine Of Worthier Title

76-115. Inter vivos conveyance to the heirs or next of kin of the conveyor; effect.

When any property is limited, in an otherwise effective conveyance inter vivos, in form or in effect, to the heirs or next of kin of the conveyor, which conveyance creates one or more prior interests in favor of a person or persons in existence, such conveyance operates in favor of such heirs or next of kin by purchase and not by descent.

Suppose Grutz conveys "To Denicola for life, then to my [i.e. Grutz's] heirs"

What is the state of the title under this statute?

Under the Doctrine of Worthier Title?

Intersting Article Today in NYT

 Today's Times has an article by Thomas Edsall about differences between Liberals and Conservatives that strikes me as relating quite a bit to issues of property and wealth issues. Here is the link:

 https://www.nytimes.com/2021/10/20/opinion/conservatives-liberals-happiness.html

 And here are some interesting passages that relate to property and equity issues:

 

Liberals, Schlenker and his co-authors agree,

have become less happy over the last several decades, but this decline is associated with increasingly secular attitudes and actions (e.g., less religiosity, less likelihood of being married, and perhaps lessened belief in personal agency).

They go on:

Conservatives generally score higher on internal control as well as the Protestant Work Ethic, which emphasizes the inherent meaningfulness and value of work and the strong linkage between one’s efforts and outcomes, and is positively associated with achievement. Liberals, on the other hand, are more likely to see outcomes as due to factors beyond one’s personal control, including luck and properties of the social system.

These differences have consequences:

Perceptions of internal control, self-efficacy, and the engagement in meaningful work are strongly related to life satisfaction. These differences in personal agency could, in and of themselves, explain much of the happiness gap.

So too, in their view, does the liberal inclination to view morality in relative, as opposed to absolutist, terms, have consequences:

A relativist moral code more readily permits people to excuse or justify failures to do the ‘‘right’’ thing. When moral codes lack clarity and promote flexibility, people may come to feel a sense of normlessness — a lack of purpose in life — and alienation. Further, if people believe there are acceptable excuses and justifications for morally questionable acts, they are more likely to engage in those acts, which in turn can create problems and unhappiness.

Perhaps most significant, Schlenker, Chambers and Le found that while both liberals and conservatives place a high value on fairness, they have diverging definitions of the concept:

Liberals define fairness more in terms of equality (equal outcomes regardless of contributions) and turn to government as the vehicle for enforcing social justice and helping those in need. Conservatives define fairness more in terms of equity (outcomes should be proportional to contributions), rely on free markets to distribute outcomes, and prefer individuals and private organizations, not government, to contribute to the care and protection of those in need.

 

A few things to think about when we get tired of mastering remainders.

Class Schedule: Cancellations

 As we have discussed, we have an extra 9 scheduled class hours that need to be canceled. Here are some dates I already know about for cancelled classes:

1. Wednesday October 13 (I am speaking at BYU Law on Tuesday and taking a red-eye home)

2. Thursday October 14 (by class vote)

3. Friday October 15 (I am speaking at the Nebraska Bar Annual Meeting)

4. My current plan is to cancel the last week of class to give you additional time to get ready for exams)

 

Have a great Fall Break from Property next week.

Estates and Future Interests

Some of you are looking for an additional reference for estates and future interests. Perhaps the best book on estates is:

Sheldon F. Kurtz, Moynihan's Introduction to the Law of Real Property (5th ed. 2011).

This should be available in the library at the Reserve desk.

By the way, the subject of the picture immediately above is Blackacre of Hickman, my all-time favorite estate in Fee Simple Absolute.

"The Five Minute Law School" or Why Property is "The Scream"

Prof. Michael Dorf has a very funny article over at FindLaw called "The Five-Minute Law School: Everything You Learn In Your First Year, More or Less." You can read it here:

https://supreme.findlaw.com/legal-commentary/the-five-minute-law-school-everything-you-learn-in-your-first-year-more-or-less.html

And here is an excerpt with his hilarious summary of Property:

"Property law is more of a hazing ritual than an actual subject. Typical property classes teach students the fine distinctions among different forms of ownership of land in medieval England, such as the "fee tail" and the "fee simple determinable," neither of which, alas, has anything to do with collecting a legal fee. Students forget these distinctions within a few seconds of completing their property law final exams, which is unfortunate, because then they have to learn them all over again for the bar exam. Only after successfully completing the bar exam, is it safe to forget the distinctions permanently."

Law In Literature: Charles Dickens

 

 

 If you want to read about law in literature, read Dickens. Dickens was not impressed by lawyers. And he wrote some of the most hilarious descriptions of judges and lawyers anywhere in literature.

I am reading The Old Curiosity Shop right now, and I just came across this passage in which Dickens describes Miss Sally Brass's devoted study of the law:

"In mind, she was of a strong and vigorous turn, having from her earliest youth devoted herself  with uncommon ardour to the study of law; not wasting her speculations upon its eagle flights, which are rare, but tracing it attentively through all the slippery and eel-like crawlings in which it commonly pursues its way."

Ouch! 

Since college as an English Lit major, I have read and re-read Dickens. Bleak House is his masterpiece focused on the law, but law and lawyers show up in almost all of his novels.

Assignments

 As I indicated last week, tomorrow's assignment will be: 5. Casebook p. 153-168 (adverse possession of personal property) 

Going forward, if you stay one full assignment ahead (from the assignments listed on the syllabus) you will be prepared for class.

After Class Office Hours in The Courtyard

 Don't forget that every day after class I head to the Courtyard (just outside the building, near the sacred ground of the Faculty Parking Lot) to answer questions or have discussions about Property, law school, Padres baseball, Constitutional Law, or most anything else.

I enjoy these discussions quite a bit, so don't hesitate to join us outside in the Courtyard, where masks are optional and the liberty bell rings loudly and clearly.

Schutz vs. Duncan

Suppose I run Schutz down with my car.

Schutz's story is that he was crossing in  a crosswalk with a walk sign, and I drove my car through a red light and injured him severely. My story is that I had a green light, and did not see him because he ran out in front of me from between two parked cars.

The accident occurred directly in front of a nursing home, and there were 5 residents of that home who were sitting on the porch and witnessed the accident.

This happens in 2010. Suppose Schutz waits until 2021 to sue me in tort for personal injury? What result? Where are those 5 elderly percipient [Kevin "he's so vain" McCarthy's word--gotta love that guy!] witnesses?

Now suppose I find Schutz's Rolex watch in the Faculty Lounge. He asks me to return it and I refuse. For the next 10 years I wear it and treat it as my watch.

Ten years later he sues me to get it back. What result? Who "owns" the Rolex now?

Suppose now he sees the watch in my office and takes it back into his possession. I sue him to recover the watch. What result? Why?

Adverse Possession--Holmes' Quotation

                                        

Here is a great Holmes quotation on adverse possession that goes to the heart of the purpose of the doctrine:

The true explanation of title by prescription seems to me to be that man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, cannot be displaced without cutting at his life.

I love the way Holmes' wrote.

Assignment: Thursday September 9

Just to be clear, for tomorrow (Sept. 9) read the next assignment:

 

 4. Casebook P. 129-131 (Hannah v. Peel); 133-140 (Schley)

 

For Friday, we will probably (depending on whether we finish first possession cases tomorrow) move on to:  5. Casebook p. 153-168 (adverse possession of personal property)

Hannah v. Peel: Timeline

Dec.13, 1938 Def (Major Peel) buys the House but does not occupy it

1939 & 1940 House requisitioned for use by the military

Aug. 1940 Pl, Duncan Hannah, finds brooch on top of window frame

Oct.1940 Honest Dunc informs his commanding officer of his discovery and turns brooch over to police (Dunc obviously married an honest and wise woman)

Aug. 1942 T.O. has not shown--Police give brooch to Def. Peel

Pl. sues Def. for the value of the brooch

Question: Is this case more like Sharman or more like Bridges? Did the Ct "squeeze Sharman" when it described its holding on p. 130?


p. 130 "It has been said...." Who said this? Did the Sharman court say this?

It has been said that Duncan is "the greatest hitter in the history of baseball." Who said this?

Possession Hypos

 

1. Suppose Billy shoots a deer with an arrow. The deer takes off running with Billy in hot pursuit. The deer runs past Denicola who kills it and carries it off. Billy sues Denicola for conversion. What result?

2. Suppose Kanye is about to harpoon a whale when Katie Perry and fellow members of Greenpeace (an organization formed to protect whales) intervenes and frightens the whales out to sea by singing “Give Peace a Chance” acapella. Kanye sues Katie for damages.

--What should Kanye the whale-hunter argue?

--What about Katie Perry and her whale-lovers organization? What should they argue?

3. Now suppose Katie and Kanye are walking down the sidewalk when Kanye spots a wallet lying in the gutter about 10 yards ahead. He exclaims, “Oh, look what I have found, a wallet!”

Whereupon Katie dives for the wallet and beats Kanye to it.

Who wins this lawsuit for possession of the wallet?

How would you argue our cases?