Assignments Week of February 27 to February 29

 No class Monday February 26--Please attend Pound Lecture

-- Lucas (casebook p. 836-849)

--Nollan and Dolan (casebook p. 849-868)

--Palazzolo (casebook p. 868-879); Tahoe-Sierra (link): Murr v. Wisconsin (Link); (casebook p. 879-881); Tyler v. Hennepin County, Minnesota (link) (read opinion at link 2)

--Preview of this Term's Takings Case: Sheetz v. County of El Dorado (link) (link 2)

 

Next Monday February 26 No Class: Please Attend the Pound Lecture at Noon in Room 111

 We have already made up this class. But I would also strongly encourage you to attend the Pound Lecture, which is the Law College's most prestigious lecture. Here are the details:

On Feb. 26, Keith Whittington, William Nelson Cromwell Professor of Politics in the Department of Politics at Princeton University, will deliver the 2024 Pound Lecture at the College of Law. Within his talk, he’ll discuss how diversity statements have become a common component of applications for faculty positions and student admission at universities across the country. They have also become politically controversial, with several states banning the use of such requirements at public universities. The use of diversity statements also raises difficult constitutional questions under the First Amendment at public universities and academic freedom questions at both public and private universities. Although there are versions of such statements that might pass constitutional muster, as commonly designed and implemented the use of diversity statements likely violates both First Amendment and academic freedom principles.

This program will take place in room 111 and begin at noon.

This year, the Pound Lecture is part of Nebraska Law’s Law and Democracy Series and is provided by generous support from Barb and Ron Schaefer.

This program has been approved for 1.0 professionalism & ethics continuing education credit in Nebraska.

Penn Central and TDRs

Consider Prof. Richard Epstein's analysis of the transferable development rights that were part of the Penn Central Takings litigation:

One peculiarity of Penn Central is that the air rights to be granted Penn Central were over eight properties, including the Biltmore Hotel, the Waldorf-Astoria, and the Yale Club, that Penn Central already owned. How, it must be asked, is the city in a position to grant these rights to Penn Central as compensation for its landmark preservation statute? To do this, the city must first own the rights, which it acquired not by purchase from Penn Central, but by zoning. The city’s compensation for the loss of air rights thus came from its prior uncompensated takings. It is as though A uses money stolen from B to pay B for property purchased from him thereafter.

This difficulty could be avoided by granting Penn Central air rights over structures it did not own, but only by substituting one embarrassment for another. The city would still have to acquire air rights over these properties, which it would do not by payment of compensation to their present owners, but by zoning. Note the irony. If zoning is mere regulation, then how can the state then convey air rights as compensation to Penn Central? To make TDRs work, we need a theory by which the air rights taken by the state through zoning become property only when they are conveyed by the state. The original confiscation is transparent if the air rights zoned away are then resold for cash, and the matter is not any better when these same air rights are used to acquire other property.

Prof. Epstein is one of the most prominent scholars on the law of Takings. His book, called simply Takings, is a classic.

Do you agree with his analysis? Why or why not?

Assignments Week of February 19 to February 22

 --Finish discussion of Kelo ; U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto); Cedar Point decision

-- Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)

 -- Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw).

-- Lucas (casebook p. 836-849)

Kelo Oral Argument

I am asking you to listen to this oral argument in lieu of having class on February 26 (the Pound Lecture): here is a link to the oral argument in Kelo. 

It is a great argument. The issue is interpretation of the "public use" requirement that allows government to take private property only if the taking is for a "public use." 

Constitutional Interpretation and Interpreting 18th Century Recipes

 "Interpreting the Constitution is no more difficult, and no different in principle, than interpreting a late-eighteenth-century recipe for fried chicken." --Gary Lawson

Suppose you have an old recipe for, say, Great Grandma's egg nog, and it says something like this:

 "Add nutmeg to taste."

Some would argue that such an ancient text defies original meaning interpretation and requires the modern reader to interpret the phrase as a living, evolving concept. But does it really? Are we able to reasonably understand the meaning of ancient texts, such as Hamlet, The Iliad, The Odyssey, Great Expectations, or the Bible?

Back to Great Grandma's recipe. When someone asked me about this once, I replied as follows:

But nutmeg means nutmeg (as nutmeg was understood at the time the recipe was published). Maybe a little more for you, a little less for me. Maybe a pinch. Maybe two pinches. But certainly not a handful. But if you substitute cinnamon for nutmeg, you are amending the recipe, not following it. Which under Art. V [of the Constitution] is fine so long as 3/4 of the states ratify the amended recipe.

What are your thoughts about being faithful to Great Grandma's recipe? 

Is it futile to try to read Hamlet today? Should we allow judges to re-write Hamlet so it says what the judges want it to say rather than what it actually says?

Does a taking for "public use" mean "use by the public" or does it permit any taking for any "public purpose?" Is nutmeg [public use] cinnamon [public purpose]?

Assignments Week of February 12 to February 15

 We will finish up our discussion of RAP during first 30 minutes of class on Monday

   Concurrent Ownership

-- Casebook p. 371-379; 385-405

--Casebook P. 412-420

 Constitutional Protection of Private Property: The Takings Clause

--Casebook p. 791-807 (Public Use Requirement) 

if necessary:

 U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto)

"Naboth's Vineyard - Site Of The First Reported Case Of Eminent Domain Abuse"

 Here is an amusing post from the Inverse Condemnation blog about a Biblical example of eminent domain abuse. Here is an excerpt:

"We've all heard the story of what may be the very first recorded eminent domain action -- or at least the first case of eminent domain abuse -- the Old Testament's telling of the story of Naboth's Vineyard.

You remember: Naboth the Jezreelite owned a vineyard that had been in his family for a while, but King Ahab wanted to make better use of the land to plant his own stuff. So he offered to buy it, but Naboth said no. So Ahab's wife Jezebel (yeah, that Jezebel) told him "King up, man, you are the King. And it's good to be the king. We'll get that land." So she plotted, and cooked up some false charges against Naboth. And after he was stoned to death, the King grabbed the land."

Read the entire post for the rest of the story. It just goes to show that Government's appetite for private property has always been voracious. 

By the way, it did not work out well for King Ahab. As R.C. Sproul puts it:

"King Ahab exercised eminent domain when he confiscated Naboth's vineyard. Naboth had labored strenuously to cultivate his vineyard, and when the king saw that it was a productive operation, he took it as his own possession. God's wrath was poured out against Ahab (1 Kings 21:1-19)."

FYI: 7 Neighbors That Can Hurt Your Home

From Yahoo Finance News:

7 Neighbors That Can Hurt Your Home

by Brian O'Connell
Saturday, May 7, 2011

Woody Allen once said, "We're all our brother's keepers, but in my case I share that honor with the Prospect Park Zoo."
Bad neighbors are nothing to laugh about, according to the Appraisal Institute. An unkempt yard, close proximity to a sex offender, or having an unfortunate commercial facility nearby (like a power plant or funeral home), can reduce the value of surrounding homes by as much as 15%.
"The impact can vary tremendously depending on a few factors: how 'bad' the bad neighbor is, the kind of neighborhood you're located in, and the type of market that exists," says Carlos Gobel, director of residential services at Integra Realty Resources in Miami.
But what exactly is a "bad" neighbor? Definitions vary, but real estate professionals say it boils down to any home or business enterprise that turns people off.
"A bad neighbor is one that has no consideration for the rest of the community," says Mindy Pordes, co-founder of Pordes Residential Sales & Marketing in Aventura, Fla. "For example, someone who doesn't take care of the outside appearance of the home, such as the gardening, painting of the outside of the home, roof, garbage and general upkeep. In addition, a bad neighbor may have constant visitors taking up parking spaces, perhaps on the street, loud house parties, dogs that bark all night or stray cats lingering around."
A "bad" neighbor can also be a business or government enterprise whose very existence drives the value of your property down. Here, the seven suprising neighbors that can reduce your home's value:
Power Plants. The data is fairly clear on the impact of power plants on nearby home values — it usually hurts them. A study from the University of California at Berkeley shows that home values within two miles of a power plant can decrease between 4% and 7%.
Landfills. A study from the Pima County (Arizona) Assessor's office shows that a subdivision located near a landfill (and all other residential factors being equal, like house size, school quality and residential incomes) loses 6% to 10% in value compared to a subdivision that isn't located near a dump.
Robert A. Simons, an urban planning professor at Cleveland State University, says that if you live within two miles of a Superfund site (a landfill that the government designates as a hazardous waste site), your home's value could decline by up to 15%.
Sex Offenders. Living in close proximity to a registered sex offender is one of the biggest downward drivers of home values. Researchers at Longwood University's College of Business & Economics conclude that the closer you live to a sex offender, the more your home will depreciate. In the paper, Estimating the Effect of Crime Risk on Property Values and Time on Market: Evidence from Megan's Law in Virginia, Longwood researchers say, "the presence of a registered sex offender living within one-tenth of a mile reduces home values by about 9%, and these same homes take as much as 10% longer to sell than homes not located near registered sex offenders."
Delinquent Bill Payers. One surprising way that neighbors can bring down the value of surrounding homes, especially in town home or condo communities, is by not paying their maintenance fees or their mortgages. "Bad neighbors bring values down by not paying their maintenance fees, in some cases their mortgage payments, and not maintaining the home's appearance," says Pordes. "These homeowners usually do not care about real estate values."
Foreclosed Homes. Perhaps the biggest single factor that drives nearby home values down is a foreclosure. A recent study by the Massachusetts Institute of Technology concludes that a neighbor's foreclosed home can slash the value of homes within 250 feet of the foreclosed properties by an average of 27%. Says Federal Reserve Governor Joseph Tracy recently in his economic outlook for 2011: "The growing inventory of defaulted mortgages continues to weigh down any recovery in the housing market... Problems in housing markets can impact economic growth."
Lackluster Landscaping. Studies show that lawn care has a big impact on surrounding home values. Virginia Tech University released a report stating that pristine landscaping can jack up the value of a home by 5% to 10%. But if the lawn looks like it just hosted the world rugby tournament, it can be a green thumb to the eye of local home prices.
Closed Schools. Sometimes, neighborhood problems can stem from local government action. For example, if a cash-strapped city or town closes a neighborhood school, that can easily steer home values south. The National Association of Realtors says that 75% of home shoppers, the quality and availability of schools in the neighborhood is either "somewhat important" or "very important."
So can you fight back against problem neighbors? In the case of a landfill, power plant or sex offender, your options are severely limited. As long as your neighbors are following the letter of the law, you'll just have to grin and bear it — or move. If not, you have every right to petition your local government authorities for a grievance and at least get the matter reviewed.
If it's a residential property causing the problem, however, you might have better options.
For starters, you can leave a polite letter left in the offending homeowner's mailbox to get his or her attention. In addition, Pordes says that if the home is located within a homeowners association or condo association, the association can send letters to the homeowner and deny the homeowner community privileges to try to ensure the homeowner complies with the community rules and maintains home values.
Most cities and towns do have ordinances against messy yards and junk-laden driveways, so check your community's rules and regulations to see what applies.
Unfortunately, many cities and towns also have landfills, power plants and other less-than desirable commercial-sized neighbors.
Most likely, you're just going to have to live with them.

Joint tenancy vs Tenancy in Common

Joint Tenancy

Grutz conveys Blackacre "to A and B and their heirs as joint tenants with right of survivorship and not as tenants in common"

Tenancy In Common

Grutz conveys Blackacre "to A and B and their heirs" or "to A and B and their heirs as tenants in common."

What Happens to Contingent Remainder When Destructibility Rule is Aboloished:Correction

Here is the hypo I used today in class. I want to correct something I misspoke about.

 Grutz conveys "to Dr. Butcher for life, and if Cornelius Husker obtains a Juris Doctor degree, then to Corny and his heirs."

Dr. B has a life estate
Corny has a contingent remainder in FSA (condition precedent---Juris Doctor)
Grutz has a reversion in FSA

What happens if Dr. B dies before Husker acquires his J.D. if we assume that the relevant jurisdiction has abolished the Doctrine of Destructibility of Contingent Remainders.

The property reverts to the Grantor, but Corny's contingent remainder is not destroyed. So what is the state of the title?

Grantor has a fee simple of some sort (the land has reverted), but the property goes to Corny upon his graduation from law school. So what does Corny have?

What does the Grantor have?

The Grantor has a Fee Simple Subject to an Executory Interest (not a Fee Simple Determinable With an Executory Limitation as I might have misspoke).

Husker's contingent remainder has survived as a Springing Executory Interest--it divests Grutz's Fee Simple Subject to an Executory Interest.

Assignments Week of February 5 to February 8

  Casebook p. 319-328

  Casebook p. 334-346 (background only; just skim this material); 346-350

  Casebook p. 355-361; 366-370

 

Have a great weekend. We will need to work hard next week!