Liberal Theories of Property

Over at PropertyProf blog, Ben Barros is starting a series of posts on liberal theories of property. Here is a large excerpt (the quotations marks are weird for some reason, but the entire thing is from Ben's post) from a recent post (link):

I'm working on a paper on liberal theories of property, i.e., those theories that link the protection of property to the preservation of individual liberty. As part of this project, I'll be posting a series of excerpts from various scholars' takes on the relationship between property and liberty. In future posts, I'll get to Charles Reich, Milton Friedman, and F.A. Hayek, but I thought I'd start with Charles Lindblom's Politics and Markets (1977). Lindblom is very much skeptical of markets and of private property, which makes the following observation all the more powerful:

One last perspective on liberty in market systems can be had in a view of a hypothetical national society without money and markets. Consider in such a system some characteristic problems in the allocation of housing to the population, for example. How to decide who gets what? Is every individual, regardless of age, to be allocated a room or some standard amount of floor space? Or is the allocation to depend on age and family structure? Is one’s allocated space to be near one’s place of employment, near one’s friends and relatives, within a mixed socioeconomic group or within a stratified one? Or suppose one wishes to make a trip. Who is to be entitled to transportation? For what reasons? How often? By air or bus? Suppose that one wishes to publish a book or pamphlet. Who is to be allowed to call on the services of editors, typesetters, distributors, and shipping services? Who is to be allowed to play the role of artist, musician, publicist, clergyman, union organizer, or party official?

All of these decisions, which the market leaves in the hands of individuals, must now be made by governmental authorities. Nothing we wish to do that requires expensive equipment, other resources, or help from others beyond the favors of family and friendship can be done without a request to and the cooperation of a government official. Call us free or not, in the absence of money and markets our way of living is transformed. For each of the decisions or results that we ourselves are accustomed to achieve through exchange – dozens of decisions in a single day for any one person – we must now ask for an official decision from a bureaucracy.

Talking about "money and markets" in this context is essentially the same thing about private property. Lindblom's hypothetical highlights a core aspect of the connection between property and freedom -- private property allows people to make decisions about their lives, especially those tied to the allocation of resources, independent of the government.

We don't have time to discuss this in class, but these theories are a golden thread that runs throughout the American law of property.

Up For Grabs film: Makeup Viewing

A reminder for those of you who missed our class time showing of the Up For Grabs film: it will be shown again Wednesday Sept. 19 (tomorrow) in Room 113 from 12:15-1:45 PM.

Copyright vs. Property Rights of Consumers

Let's spend 30 minutes or so talking about this issue during Thursday's class. It is a fascinating issue involving conflicting property interests.


I recently had an online exchange concerning copyrights and property that I thought I would share with you. Here is the dialogue:

RFD:

I'm a law prof, and I think about issues like this for my Property law course.

I like to point out to my students that if I buy, say, a Bruce Springsteen cd, and bring it home and burn a copy for a buddy on my computer, we have a situation involving competing claims to property. Springsteen is the artist who claims to own the copying rights for "his" intellectual property. But I own the physical cd, the blank disc, and the computer. He wants the law to permit him to come into my house and tell me how I can use "my" property. [Who does he think he is? The Boss?]

I have published books and lots of law review articles, and I am delighted if someone copies them and distributes them to his or her students. It is the ideas that count for me, and the more people who read my articles the happier I am.

The problem with the law IMHO is that copyrights last too long. I think the law should probably allow the artist a 2 or 3 year copyright, and then declare that the intellectual property is in the public domain. This gives the artist/author a chance to recoup his investment in the intellectual property while still allowing the consumers reasonable use of their investment in technology.


Publius (name withheld) Responded:

So, you are glad if your ideas are enjoyed by others. That is the way it should be. You are proud of your work.

But, it seems, you do not value that work highly.

What if your work is used, as is, without embellishment, to make boatloads of money for someone else. Would you not want a piece of that?

Lets say you have created a unique combination of notes and lyrics that captivates billions by the very hearing. You've made it freely available to the world to enjoy. Kudos!

Then someone else uses your song as a background track to sell widgets. And because of the success of your creation, widget sales go through the roof. Would you not feel like you were owed something?

At what point do you not feel owed? When the widget company only makes millions? Or what about just thousands? Hundreds?

And what if the widget company makes billions in profit 10 years after you created your work? Or 20 or 30?

The point is, to be fair, the copyright laws have to be broad to protect the inherent value of any, and all, kinds of works, whether intellectual or tangible, for the projected possible lifetime of the creator of the work. Corporately owned copyrights have to be under the same protection, or the value of the copyright for the individual is diminished.

It seems that the only real copyright holders are the ones willing and able to fight for their copyrights.

It's tough being a creative person in our culture. But, it's a living, and I'd rather be doing this than anything else.


RFD responds:

Like I said, the artist should get copyright protection for a reasonable period. I could negotiate whether that should be 2 years or 5 years (maybe a little longer for commercial protection), but at some reasonably early date it should be part of the public domain. The point I was trying to make is that there are property rights on both sides of this issue--the intellectual property on one side, and the consumer's right to use his computer as he wishes on the other.

The other way to resolve this fairly is to define fair use as covering most reasonable consumer-to-consumer copying (as opposed to commercial exploitation) .

I just don't buy the argument that it is theft (in the moral, as opposed to the legal, sense) to burn a cd. Why not say that The Boss is stealing the consumer's property when he tries to stop the consumer from burning cds? Burning a cd that you bought onto a blank cd that you bought on your own computer is simply using your own property as you see fit.

Of course, consumers don't have the recording industry lobbying Congress on their behalf. So the laws are written to favor the entertainment industry. But almost everyone who owns a burner has burnt a copy of a cd without obtaining the copyright holder's permission. The People have effectively interpreted the laws made by their representatives to define fair use very broadly in the non-commercial area in order to balance the property rights of the entertainment industry with the property rights of the people.


How should the law of copyrights deal with consumer copying of cds and other intellectual property? Do you feel like a thief when you burn a copy of a cd for a friend? Should you? Should the law prohibit an activity that many honest people feel entitled to do? How much control should The Boss have over your use of your property in your home?

Copyright Discussion For Thursday's Class

Let's try to think about the copyright issue as follows: Assume that the law of copyright would be determined by the unanimous consent of two persons--A, who serves as the representative for the intellectual property community (artists and the entertainment industry) and B, who serves as the representative of ordinary consumers (people like you and me who wish to have the right to use our property without unreasonable retsrictions).

Can you think of a copyright rule that would be a reasonable compromise, one that both A and B could accept on behalf of the competing stakeholders?

Baseball and Possession

UPDATE

We have a winner!

Mr. Fox nailed it.

The play I had in mind is when the middle infielders are attempting to turn a double play. For example, ground ball to 2B, the 2B flips to the SS who drops the ball in the course of transfering the ball from glove to bare hand to make the throw to 1B.

These guys are so quick that the ball is in the glove for only a fraction of a second (and thus not clearly controlled in the glove). Yet the umpires, almost without exception, rule that if the ball is dropped in the process of turning the double play a catch is made and the runner is out at second. Thus, it is a Finkelman "non-catch" catch.

Congratulations to Mr. Fox!

Another Update

Daniel comes up big in comment 8 below--the intentional non-catch that is ruled a catch. I hadn't thought of this one, but I should have because I saw Mike Lowell try this tricky move and get caught in a Red Sox game earlier this season.



Since this is a big baseball weekend (Sox-Yanks--"say it ain't so, Joba"), here is a fun question for those of you who love the game of baseball to think about.

There is one play in baseball in which umpires basically use the Finkelman "you don't have to control the ball in your glove to make a catch" rule.

For 100 imaginary points, what is that play?

Next Week

For next Thursday's class, we will finish up our discussion of the finders/possession cases and talk a little bit about copyright and property rights (watch for the blog posts on the copyright issue). We will also do some general background reading from the casebook:

Casebook p.2-12; 23-31

Taking Property in China Even Worse Than in the USA

From the Volokh Conspiracy Ilya Somin reports:

"As bad as things are with eminent domain in this country, it's much worse in China, as shown in this Boston Globe/LA Times article on the government's forcible displacement of people to build subway lines in Shanghai:

In China, labor is cheap, the land belongs to the government . . . and political pressure moves largely in one direction - from the Communist Party leadership on down.

"If the government wants to do something, even if the conditions are not ready for it, it will be done," said Zheng Shiling, a Chinese architect who teaches at Tongji University in Shanghai.

The system essentially works like this: Planners draw subway lines on a map. Party officials approve them. Construction begins. If anything is in the way, it is moved.
If they need to, Chinese planners "just move 10,000 people out of the way," said Lee Schipper, a transportation planner who has worked with several Chinese cities as director of research for Embarq, a Washington-based transportation think tank. "They don't have hearings."

The article claims that most of those displaced don't mind:

What is striking in Shanghai is how few people seem to mind this upheaval, in part because the city has dramatically improved the compensation it provides to dislocated people and businesses, and in part because residents accept the idea that the subway represents the greater good for the city.

Perhaps Shanghai residents really don't "mind" being forcibly uprooted from their homes for "the greater good" as defined by "the Communist party leadership." But I suspect that their lack of protest has something to do with the fact that China is an authoritarian state where speaking out against the government can lead to severe punishment. As I explained in more detail in this post, it is a major mistake for Western journalists to take expressions of support for government policy in repressive societies at face value. Unfortunately, LA Times reporter Mitchell Landsberg joins a long line of reporters who have fallen into this trap. At this late date, there's really no excuse for it."

It's a little better here, but perhaps not as much as it should be. We will study the law of Takings and eminent domain later this year. By the way, that reference to "the greater good" reminds me of the battle cry of dark wizards in Harry Potter and the Deathly Hallows.

Popov v. Hayashi: Barry Bonds' Ball Case

Let's read this recent case for next week as per the list of assignments. UPDATE The link on the list of assignments for this case is a good link. Use that one.

Here is a link to a video of the battle for the ball!

First Two Assignments

Here are the first two assignments for Property class. These two assignments will get us through the first 3-5 classes. Make sure you are always prepared to discuss one full assignment beyond what we have covered in class:

1. Casebook p. 79-95 (Goddard and Eads)

2. Casebook p. 95-97 (Armory and Bridges); p.102-103 (McAvoy); p.97-99(Sharman)

After reading these assignments, we will read and think about the litigation over possession of one of Barry Bonds historic home run balls and actually watch a documentary about that litigation. Here is a link to the opinion in the Bonds' baseball case, Popov v. Hayashi.

I will be providing a full list of assignments and more information about the course soon. When these handouts are available, I will let you now by posting a notice on the bulletin board outside the Dean's Suite.

See you in class!

Religious Liberty and Property

One of the important intersections of Property law and Civil Rights law is that of religious liberty and property. We will be looking at this area in more detail later this semester, but for now here is an interesting post from the Religioin Clause blog:


Court Orders Mobile Home Park To Allow Religious Use of Clubhouse

Yesterday a San Diego, California trial court ordered Warner Springs Homeowners Association to allow residents at the mobile home park to use the park's common areas for Bible and prayer meetings, according to a release by the United States Justice Foundation. The court rejected the claim of the Homeowners' Association that it had a right to be free of religion in the community clubhouse. The residents' suit had claimed violations of the U.S. and California constitutions and of California's Unruh Civil Rights Act. (See prior posting.) [Thanks to Alliance Alert for the lead.]

Essential Surfing

If you only have time for one site to try to keep up with what is happening in the world of law, you should be sure to visit this site (How Appealing) each and every day. It links to articles and primary sources concerning just about everything important taking place in the world of law.

Check it out (but not during Property class!).

Diversity Schmiversity!

The downside of diversity: A Harvard political scientist finds that diversity hurts civic life. What happens when a liberal scholar unearths an inconvenient truth Here is an excerpt:

IT HAS BECOME increasingly popular to speak of racial and ethnic diversity as a civic strength. From multicultural festivals to pronouncements from political leaders, the message is the same: our differences make us stronger.

But a massive new study, based on detailed interviews of nearly 30,000 people across America, has concluded just the opposite. Harvard political scientist Robert Putnam -- famous for "Bowling Alone," his 2000 book on declining civic engagement -- has found that the greater the diversity in a community, the fewer people vote and the less they volunteer, the less they give to charity and work on community projects. In the most diverse communities, neighbors trust one another about half as much as they do in the most homogenous settings. The study, the largest ever on civic engagement in America, found that virtually all measures of civic health are lower in more diverse settings.

"The extent of the effect is shocking," says Scott Page, a University of Michigan political scientist.

Red Sox Si, Senor Frog's No

Welcome back to Property class after our 2-week pause that refreshes! Here I am refreshing myself at a historically significant Red Sox game, Dice-K's first big league appearance.

That's me and my daughter the softball catcher, Becca, in one picture and the other is a very small Dice-K pitching to Nebraska's own Alex Gordon, who got his first big league base hit in this game.

See y'all Wednesday!

Rohinton Mistry on Law vs. Justice

I am re-reading one of the finest contemporary novels ever written--Rohinton Mistry's A Fine Balance--and I just came across this great quote about the law. One of the novel's character's, a lawyer named Mr. Valmik, says this:

"One of the drawback's of my profession is the total lack of humour. The Law is a grim, unsmiling thing. Not Justice, though. Justice is witty and whimsical and kind and caring." (Id. at 556)

See y'all in a couple of weeks!

HOA: "No political speech please! This is an exclusive development!"

From How Appealing:

"Court Upholds Curbs on Signs in New Jersey": The New York Times on Friday will contain an article that begins, "In a ruling that could have implications far beyond New Jersey, the State Supreme Court on Thursday upheld the right of homeowners' associations to restrict the posting of political signs and other forms of constitutionally protected speech,as long as the restrictions are not 'unreasonable or oppressive.'"
You can access today's ruling of the Supreme Court of New Jersey at this link.

Query? Why isn't it always unreasonable for a HOA to restrict a homeowner's constitutionally protected expression on her own property?

Spring Assignments

Another Update (3-26-07)

Notice there is a new assignment--Assignment 25--added below

Update

Notice I just changed the list of assignments for our coverage of Easements. Basically, I shortened Assignment 18 a little bit. I haven't covered Easements for quite a few years, and I decided to include them this year to make sure you at least know what they are. But the semester is winding down, and we can't afford much more than 3 or 4 classes on Easements. Hopefully, none of you have read so far ahead as to be affected by this change. We won't get to Assignment 18 until next week.

Here are the assignments for Spring Semester. Please stay one full assignment ahead for each day of class.

I. Takings

1. U.S. v. Causby (casebook p. 669-677); Prof. Linder's Introduction to Takings (link)
2. Mahon (casebook p. 745-749); Penn Central (casebook p. 754-769)
3. First English (casebook p. 749-754); Keystone (Handout 8)
4. Euclid and Nectow (casebook p. 693-706)
5. Loretto and Lucas (casebook p. 769-784)
6. Nollan and Dolan (casebook p. 784-803)
7. Palazzolo (casebook p. 803-814); Tahoe-Sierra (link); casebook p. 814-815
Note: Although I am not assigning any part of the Cunningham Hornbook that deals with Takings (I think Supreme Court cases speak best for themselves), if you are interested in additional analysis, many of these cases and issues are discussed from p.524-545 of the Hornbook. As always, when reading secondary sources, read them only to the extent that they help you understand issues we discuss in class. To the extent that they raise additional issues, be careful that this "extra knowledge" does not confuse you. You are only responsible for assigned readings and issues we discuss in class or on the blog.

II. The Recording System

8. Casebook p. 1069-1086; Handout 9
9. Casebook p. 1086-1098
10. Casebook p. 1098-1107
11. Casebook p. 1107-1119
12. Casebook p. 1119-1127

III. Adverse Possession

13. Casebook p.1213-1226; Hornbook p. 853-860
14. Casebook p. 1226-1235; p. 1243-1252: Hornbook p. 860-869;898-905

IV. Easements, Etc.

15. Casebook p. 492-506; Hornbook p.434-444
16. Casebook p. 506-513
17. Casebook p. 514-525; Hornbook p. 444-451
18. Casebook p. 526-539: Hornbook p. 451-458

V. Real Covenants and Equitable Servitudes

19. Casebook p. 553-563
20. Casebook p. 563-571
21. Casebook p. 571-577
22. Casebook p. 577-587
23. Casebook p. 69-76; 587-595; Moore v. City of East Cleveland (Handout 9A)
24. Casebook p. 595-608
The relevant material in the Hornbook for Covenants and Equitable Servitudes is found at pages 469-514. I expect you to read these pages, but I have not assigned specific readings for specific classes. Read the relevant sections in chunks, to help you understand the cases as we read them. You might want to read this material through once quickly at the beginning of this unit, and then re-read the material more carefully as it relates to the cases we are discussing for each class.

VI. Landlord and Tenant: A Brief Introduction (with emphasis on Nebraska Law)

25. Hornbook sections 6.13 to 6.24; Nebraska Residential Landlord and Tenant Act (Handout to be distributed)(read through the Act generally, but pay particular attention to sections 76-1416, -1418,-1419,-1421,-1426,-1427,-1437 and -1439). We will spend two class hours on this assignment.

You can find Handout 8 and a general course information memo in the magazine racks (the handout racks) on the South Side of the Library on the Second Floor.

Law Prof rapper on YouTube

Yo, check it out.

He's better than Sanjaya! No?

Class Schedule

Update: Our last required class cancellation will take place on Friday April 6 (see revised schedule below). Some of you have plans to go home that weekend, and this seems to be the best use of our last class cancellation. We will meet for the last week of classes (April 18,19 & 20) and my plan right now is to briefly cover Landlord-Tenant basics on the 18th & 19th and have a question & answer session on the 20th for your questions relating to the final exam (scheduled for April 23).

As you know, our schedule calls for 35 classes of 60 minutes each (instead of 42 classes of 50 minutes each), which means that 7 classes must be cancelled. Just so you know, I will be out of town a couple of times in April so we will not meet on the following days:

April 4
April 5
April 6
April 11
April 12
April 13

"Is Property Protected from Government Retaliation?"

Jonathan Adler has an interesting post at the Volokh Conspiracy about a property case currently before SCOTUS.

It is worth reading.

Nicole Garnett on Takings and Compensation

Over at the Volokh Conspiracy, Nicole Garnett of Notre Dame Law is blogging about "The Neglected Political Economy of Emminent Domain." This post is worth reading.

What Argument Would You Make

if you represented the Santeria priest? From the Religion Clause blog:

In Euless, Texas, the city has moved to dismiss a RLUIPA suit brought against it by a Santeria priest who who was refused a permit to sacrifice animals at his home in a religious ceremony. (See prior posting.) The city ordinance permits the slaughter of chickens so long as they are used for food. But it would not permit the slaughtering of goats that Santeria priest, Jose Merced, and his followers were preparing to do. According to yesterday's Dallas Morning News, the city claims that its law prohibiting the slaughtering of animals anywhere in the city is a health and safety law, not a "land use" regulation covered by RLUIPA. RLUIPA, Sec. 8(5), defines a "land use regulation" as "a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land)".

Famous Trials Web Page

Here is a great page for you to bookmark. It's Prof. Doug Linder's "Famous Trials" Page. Check it out when you have some spare time to "goof" around.

"Someone (Other Than You) May Own Your Genes"

Today's NYT has an interesting article on property, science, and the new boundaries of ownership of human genes. Here is an interesting excerpt:

Professor Hilgartner said patents don’t just determine who will own new technologies and who has access to them. They also influence what technologies cost, whose cultural and ethical values they represent, and what aspects of the research and development process will be transparent — and to whom.

The degree of control that life patents grant their owners is of growing concern to scientists, human rights and patient advocates and ethicists. More than 20 percent of human genes have already been patented, and most of those patents are owned by corporations.

Professor Hilgartner noted how this kind of control can play out in the real world. In the case of the Canavan disease patent, for example, a family afflicted by this rare genetic disorder initiated an effort to find the gene mutation responsible for the disease. They raised money, collected DNA samples and attracted researchers to the cause.

After a researcher found the gene in the late 1990s, he and his employer, Miami Children’s Hospital, patented it and began charging royalties on a genetic test to screen for the disease — despite the fact that they would never have found the gene without the efforts and the DNA samples of the afflicted.
Patient groups filed suit in 2000, contending misappropriation of trade secrets by using their children’s DNA without consent to obtain a patent. It took until 2003 for the parties to reach a confidential settlement; it allows certain laboratories to continue collecting royalties but lets institutions, doctors and scientists use the patented gene sequences without paying.

There are many other examples of life patents causing public concern. One of the most important examples involves patents on food crops and cloned animals. These patents have a growing potential to cede control of the world’s food supply to biotech patent holders.

And here is a link to Prof. Hilgartner's article refrred to in the Times article.

Is it okay to steal from landlords?

Today's NYT has an article about landlord-tenant law in NYC: Illegal Sublets Put Private Eyes on the Case. Here is a key quote:

“Everybody thinks landlords are bad and we can steal from them,” said Mr. Frankel, a helicopter door gunner in Vietnam who later worked in the garment center and can still spot a tailor-made suit by the sleeve buttons alone. “We live in a life of double standards. We have all these great people who go to work, donate to charities, talk about how the war is horrible — but everybody still thinks it’s O.K. to have the Robin Hood mentality.”

"Does what "elite professors" think matter?"

No

Handout Available: "Model Student Answer"

The handout of the "Model Student Answer" for the practice exam question we discussed in class is available in the handout racks near the South Faculty suite. Please pick up a copy.

Thursday 1/18/07

For tomorrow's class, please also read through the Loretto case (p. 769-771).

Thus, First English, Euclid, Nectow, and Loretto are up.

RLUIPA and the Pursuit of Happyness

Here is a report from the Religion Clause blog on a RLUIPA case involving a homeless shelter:

Today's Courier News reports that in Elgin, Illinois, HELPS Ministry, the operator of a downtown homeless shelter, has filed suit in federal court claiming that the city has violated HELPS' free exercise rights and its rights under RLUIPA. The suit alleges that the city has indefinitely delayed a vote on granting it a conditional use permit to reopen its shelter at Family Life Church after the facility had been closed down for code violations that made it unsafe for overnight occupancy. The city's zoning board voted unanimously to recommend the permit, but before the Nov. 29, 2006 City Council meeting at which the recommendation was to be approved, the item was removed from the agenda "and sent to the city's legal department indefinitely." Since it was forced out of Family Life, HELPS has provided sleeping space for the homeless on its school bus, at various churches and at a Christian camp.

Mid-Year Exam

When you get your grade for the mid-year test, it will represent a number of points out of a possible 100. To give you some idea how your score compares with that of the class, here is some data:

The median score is: 88
The mean score is:82.24
The breakdown is the following:

8 of you scored 100
9 of you scored 96
12 of you scored 92
12 of you scored 88
4 of you scored 84
4 of you scored 80
5 of you scored 76
4 of you scored 72
2 of you scored 68
3 of you scored 60
4 of you scored 56
2 of you scored 52
1 of you scored 48
1 of you scored 44
1 of you scored 36

I was quite pleased with the results. This was a straightforward exam, but it was not an easy exam. If you mastered our class work, you should have done well. And most of you did.

I will have more to say in class, but for now good work and have a Happy New Year.

I still haven't seen Pursuit of Happyness--the blizzard changed our plans--but I will see it later this week.

Gotham Times on Zoning Out Convicted Sex Offenders

Sex Offenders in Exile

Here it is:

Of all the places that sexual predators could end up after prison, the worst is out of sight, away from the scrutiny and treatment that could prevent them from committing new crimes. But communities around the country are taking that risk, with zoning laws that banish pedophiles to the literal edges of society.

There is a powerful and wholly understandable impulse behind laws that forbid sex offenders to live within certain distances of schools, day care centers and other places that children gather. Scores of states and municipalities have created such buffer zones, then continued adding layer upon layer to the enforcement blanket.

This has placed a heavy burden on law enforcement agencies, which already must struggle to meet exacting federal and state requirements for registering and monitoring the ever-growing population of released sex offenders, many of whom must be tracked for life. Lawmakers have shown no hesitation in piling on the administrative load, but frequently are less quick to pay for additional people to do the work.

As the areas off limits to sex offenders expand to encompass entire towns and cities, if not states, the places where they can live and work are shrinking fast. The unintended consequence is that offenders have been dispersed to rural nowhere zones, where they are much harder to track. In confined regions like Long Island, they have become concentrated in a handful of low-rent, few-questions-asked areas — an unintended and unfair imposition on their wary neighbors.

Many offenders respond by going underground. In Iowa, the number of registered sex offenders who went missing soared after the state passed a law forbidding offenders to live within 2,000 feet of a school or day care center. The county prosecutors’ association has urged that the law be repealed, for the simple reasons that it drives offenders out of sight, requires “the huge draining of scant law enforcement resources” and doesn’t provide the protection intended.
The prosecutors are right that any sense of security that such laws provide is vague at best and probably false. Just as it would feel foolish to forbid muggers to live near A.T.M.’s, it is hard to imagine how a 1,000-foot buffer zone around a bus stop, say, would keep a determined pedophile at bay. If children feel secure enough to drop their wariness of strangers, that would be a dangerous outcome. And of course, no buffer against a faceless predator will be any help to the overwhelming majority of child victims — those secretly abused by stepfathers, uncles and other people they know.

The problem with residency restrictions is that they fulfill an emotional need but not a rational one. It’s in everyone’s interest for registered sex offenders to lead stable lives, near the watchful eyes of family and law enforcement and regular psychiatric treatment. Exile by zoning threatens to create just the opposite phenomenon — a subpopulation of unhinged nomads off their meds with no fixed address and no one keeping tabs on them. This may satisfy many a town’s thirst for retributive justice, but as a sensible law enforcement policy designed to make children safer, it smacks of thoughtlessness and failure.

RLUIPA Attorney's Fees: $178,535.... for Pro Bono Work!

From the Religion Clause blog:

6th Circuit Awards Attorneys' Fees In RLUIPA Case

Yesterday in DiLaura v. Township of Ann Arbor, (6th Cir., Dec. 27, 2006), the U.S. 6th Circuit Court of Appeals agreed with plaintiffs in a RLUIPA case that they were "prevailing parties" and were entitled to $178,535 in attorneys fees, rejecting the district court's lower award. In the underlying case, the Apostolate for the Eucharistic Life challenged the Township's refusal to grant a zoning variance so it could operate a bed and breakfast that hosted guests without charge for prayer and contemplation.

Nice work if you can get it!

"Prairie Dogs and Property Rights"

I think you will find this story very interesting.

Holy Doorman, Batman, It's Better in Nebraska!

Today's New York Times has on article--Only the Strongest Survive-- on the difficult residential rental market in Gotham City. Here are some key excerpts:

ALTHOUGH qualifying to rent an apartment in New York City is not yet as tough as winning admission to Harvard or Yale, it increasingly feels that way to a large contingent of aspiring tenants — even if they actually attended Harvard or Yale and easily passed muster with their previous landlord.

Among the 50,000 background checks run this year on Manhattan tenants by On-Site.com, a national background-checking and leasing service used by some landlords and managing agents, fully 41 percent of applicants garnered a rating of either “reject” or “maybe” (21 and 20 percent respectively).

That means a fifth of would-be renters are being shown a different door than they had hoped, while another fifth struggle to upgrade their conditional status.

With paychecks lagging behind the 10 to 15 percent rent increases for market-rate apartments over the last year, many more would-be tenants fail to scale the standard annual income threshold of 40 to 45 times the monthly rent.

That means that if you want to rent a studio for $2,000 a month, you need to earn $80,000 to $90,000 a year (much higher figures, by the way, than the 36 times the monthly rent required in the rest of the country).

Renters who flunk the income test must prove themselves in other ways. Landlords are demanding extra cash up front, solid credit records and local guarantors who earn around twice the income threshold and are willing to bare their finances to both strangers and kin. Even then, a history of litigation against a prior landlord usually triggers automatic disqualification.

By the way, you future landlords should see wisdom in background checks such as these.

As between A, with a very good income, excellent credit report, and a good tenant history, and B, with less income, some blemishes on his credit report, and a history of litigating against his landlord, whom would you choose as a tenant in your building?

Professor Bainbridge on the Economics of Tipping: Are Kindness and Generosity Rational?

Here. And here is an excerpt:

When you are a regular customer at a given restaurant, developing a reputation as a good tipper presumably results in better service, while developing a reputation as a lousy tipper presumably results in an increased frequency of "spitters." In contrast, using our recent trip to Hawaii as an illustration, I noted that when one will only interact with a waiter once (or are interacting for the last time), it's economically irrational to tip. After all, you'll never be back, so there's no chance for better service but there's also no risk of a spitter. As I put it, in a one time or final period setting, a hard-hearted economically rational actor wouldn't tip.

So, about Hawaii: did he or didn't he?

My RLUIPA Blogging at PropertyProf

If you want to read my RLUIPA and religious land use blogging at PropertyProf, here is a link that should enable you to find all my posts. Just scroll down to my first post, dated October 4, 2006, and then scroll back up to find them all.

Conservatives are Compassionate, But are Liberals Stingy?

Over at the Volokh Conspiracy, Prof. Jim Lingren has an interesting post that begins:

Those Who Favor Income Redistribution Are Less Happy and Less Generous.--
Last fall and winter, I circulated a paper on the relationship of people’s views on income redistribution and capitalism to traditional racism and to intolerance for unpopular groups. I presented it to Gary Becker’s and Dick Posner’s Rational Choice Workshop at the University of Chicago and to the Law, Economics, and Organization Workshop at Yale.

With the publication of Arthur C. Brooks’ new book Who Really Cares (tip for the news story to Instapundit), which presents data showing that conservatives tend to be more generous than non-conservatives, I decided to put a full PDF copy of my paper on SSRN. It appears that our analyses directly overlap only slightly, though they are certainly generally complementary.

In the field of social psychology, it is commonly believed that people support capitalism and oppose greater income redistribution because they are racist or want to dominate other people or groups. Indeed, a study of college students in the United States and secondary students in Sweden found that attitudes supporting capitalism were positively associated with racism and an orientation toward social dominance (Sidanius & Pratto, 1993). In my draft article I expand and test this thesis using 16 nationally representative General Social Surveys conducted by the National Opinion Research Center between 1980 and 2004.

In later posts, I will discuss my main results, but in this post I want to confirm one of Brooks’ findings (in chapter 3 of his book)--those who oppose greater government income redistribution tend to give much more to charity. What follows is a shortened version of one small section of my paper (the paper includes relevant charts).

RLUIPA and "Substantial Burdens"

From the Religion Clause blog:

In Washington v. Klem, (3d Cir., Aug. 2, 2007), the U.S. 3rd Circuit Court of Appeals settled on a definition of "substantial burden" under the Religious Land Use and Institutionalized Persons Act. It held: "For the purposes of RLUIPA, a substantial burden exists where: 1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs."

Inmate Henry Washington's religion requires him to read four Afro-centric books each day. The court found that prison authorities substantially burdened Washington's religious exercise by limiting him to having 10 books at any time in his cell. Further, the state failed to show how its policy furthers its interest in safety and health of prisoners and staff.

Happy Thanksgiving

Have a great Thanksgiving holiday--and remember take some time to enjoy the holiday, the food, the football games, and your family.

Property and "No Property": What Do You All Think?

I think one key passage begins on p. 1428 and continues on 1429. Prof. Baron is explaining that since property rights involve legal relations among persons with respect to things, when the law recognizes that X has the right to exclude Y from X's property, then Y has a corresponding duty to X to stay off of X's property. (X's right entails Y's duty).

"Thus, if X and Y were neighbors, each would have rights to keep the other off, and each would have a duty to stay off." (p.1429) Thus, property rights enhance both the liberty and personhood of X and Y, because each has autonomy over his own property (each is the "king of his own castle.")

But what about the person, Z, who own no property?

Prof. Baron says "[p]ersons owning very few things inhabit a realm of severe social and legal vulnerability, susceptible to the power of many...without having (m)any reciprocal power(s) over others." (p. 1427). In other words, "no property" is "a negative, a collection of lacks." (p. 1429)

What are your thoughts? How should the law respond?

"Woman Wins Religious Discrimination Case"

Here is an article that is somewhat related to some of the issues we discussed today.

Property as an Element of Personhood

While reading the "No Property" article for this week, I got to thinking about Kelo. If property rights are an essential component of liberty and personhood--and I think they are--then perhaps the public correctly views Kelo as the Court declining to protect vulnerable homeowners against the use of governmental power to deprive them of their liberty and personhood by taking their homes for economic redevelopment. Even if the "public good" is advanced from a pragmatic perspective when property is taken from A and put to a better use by B, perhaps the price is too high when the taking strikes at the core of the liberty and personhood of a few unfortunate folks like Susette Kelo.

When government redistributes property rights from A to B, it is redistributing liberty and personhood from A to B. Or at least that is one way to think about this issue

"Ten Tips for Excellence in Appellate Advocacy"

You might find this article by appellate lawyer and blogger Howard Bashman of interest.

Post-Kelo Initiatives

Over at the Volokh Conspiracy, Ilya Somin has this summary and analysis:

Ten states pass anti-Kelo referendum initiatives:
During this fall's elections, voters in twelve states considered anti-Kelo referendum initiatives that sought to ban or curtail the condemnation of private property in order to promote "economic development." Ten of the twelve passed, all by lopsided margins ranging from 55% to 86% of the vote. For a complete list, see here.

The only two anti-Kelo initiatives that failed were proposals in California and Idaho that were tied to complex and highly controversial "regulatory takings" proposals which would have required the government to compensate landowners whenever the value of their property is reduced by various types of government regulations; a stand-alone regulatory takings initiative was also defeated in the state of Washington. Tying anti-Kelo referenda to the much less popular regulatory takings referenda has turned out to be a serious political mistake.

More importantly, of the ten anti-Kelo initiatives that passed, at least six (Arizona, Florida, Louisiana, Nevada, North Dakota, and Oregon) and possibly seven (counting Michigan) are well enough worded to provide strong protection to property owners that would succeed in banning all or most economic development takings in those states. This is a much better batting average than that of post-Kelo reforms enacted by state legislatures, most of which tend to provide little or no protection for property owners (see, e.g., my analysis here, here, and here, and Tim Sandefur's excellent article on the subject).

Why are the anti-Kelo referendum initiatives so much more effective than most of their legislative cousins? I suspect because the former are usually drafted by property rights activists rather than by state legislators. As I discuss in more detail in the posts linked above, politicians often have incentives to give voters the impression that they are "reforming" eminent domain without actually doing so. Activist groups have few if any such incentives and the reforms they draft are therefore likely to have fewer loopholes and be more effective in eliminating economic development takings.

Class Schedule Change: Kelo Lecture

Sylllabus Update: We will finish up concurrent ownership this week, and then we will move on as follows:

14. "Poletown Lives!!" video (in class viewing); casebook p. 714-720; Kelo decision (see link below)

15. RLUIPA Handouts 7, 7A & 7B

The class on November 30 will be a review/Q&A session and we re-scheduled the last class (Dec. 1) to attend the Kelo lecture on October 30.

Room Change: The lecture will take place in ROOM 112 not Room 113.

I am re-scheduling our last class of Fall Semester (scheduled for 12/1/06) to this coming Monday, October 30, at Noon in Room 112.

The reason for the change is to require you to attend Professor Jim Huffman's presentation on one of the most important property decisions in many years, Kelo v. City of New London. I would also like you to read the Kelo opinion before attending Prof. Huffman's lecture. Here is a link to the opinion.

So to summarize:

1. No class: Friday December 1
2. Required lecture on Kelo: Monday October 30 at Noon in Room 112
3. Your assignment for Monday's lecture is to read the Kelo opinion.

"Stopping the government's property grab" or "Little pink houses for you and me"

Roger Pilon writes in the LATimes on ballot initiatives designed to respond to Kelo. His article begins:

NEXT MONTH, in 12 states, including California, voters will get a rare chance to talk back to the Supreme Court. Those are the states with measures on their ballots to protect property rights, sparked by the court's 2005 Kelo decision, which lets government condemn a person's property and give it to someone else who can make "better use" of it. In an instant, Americans across the country woke up to the realization that, as Justice Sandra Day O'Connor wrote in dissent, "The specter of condemnation hangs over all property."

To date, 30 states have enacted measures to restrain their power to condemn, and citizens have stepped in where legislatures have balked, placing initiatives on the ballots. Despite intense opposition from the powers who benefit from the status quo, these initiatives are doing well in the polls because they're tapping into a bedrock American principle: the right of everyone to own and enjoy property.

Here is a link to the article. And above left is a picture of Susette Kelo's Pink house (John Mellencamp call your office).

New 4th Circuit Finders Case

Over at the PropertyProf blog, yours truly has a post about an interesting and recent finders case.

"Ballot measures propose limits on judicial authority"

The Washington Times has an interesting article today that begins:

Western conservatives are gunning for the judiciary this election year with a half-dozen ballot measures that would rope in the authority of what they describe as activist judges.

Case in point is Colorado, where former state Senate leader John Andrews tried for years to solve the problem of activist judges who he said routinely legislated from the bench, often at the expense of conservatives.

His efforts in the legislature fell short, but Mr. Andrews isn't finished. He is the prime mover behind Amendment 40, a proposed constitutional amendment that would limit state appellate judges to 10-year terms, making Colorado the first state to limit the office of top-tier judges.

"We see a pattern of ideological and political decisions from the bench, and it points to a consistent tendency of appellate judges in Colorado to rewrite the law," said Mr. Andrews, now a fellow with the Claremont Institute, after a press conference yesterday at the state Capitol.

Although you will hear angry screams that these initiatives threaten "judicial independence," another view is that they are a reasonable check on judges who often go beyond the judicial task of interpreting the law and begin to rule from the bench. This is a movement worth keeping an eye on.

Law & Literature

Over at Concurring Opinions, Daniel Solove has a post about law & literature. Here is a key excerpt:

If you're interested in law and literature, you might find my website for the Law & Humanities Institute to contain some useful information.
There are several web pages that may be of interest:
1. General Resources (websites, syllabi, etc.)
2. A List of Literary Works About the Law
3. A Chronological Bibliography of Works About Law & Literature (1982-present)
4. A Bibliography of Law & Literature Scholarship About Particular Writers

Handouts 7, 7A & 7B

These 3 handouts--all on the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA")--are now available in the handout kiosk near my secretary's suite on the south side of the library.

We will not be covering this topic for awhile, but the handouts are available for you to pick up. Please take only one copy per student.

Snap Quiz

Suppose: Grutz conveys "to A for life, but if A moves to Europe, then Grantor shall have the right to reenter and possess the property as of his former estate."

What does A have?

What does Grantor have?

Answer

It's Better in Nebraska

Here is a great article from today's Providence Journal about Nebraska and what a great place it is. Check it out!

New Toy

As you can see from some of the blog posts below, I learned how to add pictures to posts this weekend. Freeeeeeeedommmmmmmm!

RLUIPA a Factor

Here is another interesting case involving religious liberty and religious property rights. This is from the Religion Clause blog (link):

"In Baltimore, Maryland, a housing department hearing officer has upheld the decision of Housing Commissioner Paul Graziano who decided that the Archdiocese of Baltimore can tear down a 100-year hotel building in order to build a prayer garden. WBAL-TV reports today that historic preservationists oppose demolition of the historic building located next to a remodeled church. However, they were unsuccessful in their argument that housing authorities should have made their decision without considering the impact of the federal Religious Land Use and Institutionalized Persons Act."

Yours Truly on NPR

The only time I listen to NPR is when I am on the program, and that occurred earlier this week when I was on Talk of the Nation (with Sen. Patty Murray) talking about the Plan B (morning after pill) controversy.

This is not a property law issue, but if you are interested in the debate that took place between me and Sen. Murray, here is a link to an audio of the program.

A Little Rock & Roll Music?

Here is a link to "the 50 greatest conservative rock songs," many of which take a stand for private property rights including this one:

39. “Property Line,” by The Marshall Tucker Band. ; buy CD on Amazon.comThe secret to happiness, according to these southern-rock heavyweights, is life, liberty, and property: “Well my idea of a good time / Is walkin’ my property line / And knowin’ the mud on my boots is mine.”

Special Assignment--Nebraska Landlord Tenant Handout

On Friday, August 14, Prof. Kevin Ruser will be a guest in our class. He will be covering landlord-tenant issues in Nebraska, with a special emphasis on residential landlord-tenant cases.

Your assignment for this class is to read Prof. Ruser's handout on "Nebraska Landlord and Tenant Law," which is available just outside the faculty offices on the South side of the second floor. Please pick up one copy (and only one copy) and read through the handout (with special emphasis on pages 1-30) for class on August 14.

I think this will be a very interesting class.

"The Green Costs of Kelo"

Ilya Somin has an interesting post today over at the Volokh Conspiracy blog. Here is a key excerpt:

Barrels of ink have already been spilled over the Supreme Court's narrow 5-4 decision in Kelo v. City of New London, including some by yours truly. In "The Green Costs of Kelo: Economic Development Takings and Environmental Protection," environmental law professor Jonathan Adler and I have now put together the first article to systematically examine Kelo's implications for environmental policy. It is available here, and currently under review by journals.

We argue that the Supreme Court's decision to allow government to condemn property for transfer to other private parties in order to promote "economic development" may well harm the environment. In particular, private conservation land (an increasingly important tool for protecting environmental amenities and wildlife) is likely to be targeted for condemnation by developers and their allies in local government because conservation property contributes little to development and is usually not subject to property taxes. Allowing economic development condemnations also harms the environment in several indirect ways that we detail in the paper.

Some environmentalists fear that forbidding economic development takings would undermine the use of eminent domain for environmental purposes. Jonathan and I show that these fears are probably groundless. Not even the hint of such a trend has arisen in the nine states where economic development condemnations are banned by state constitutional law. And nearly all environmental takings can easily be justified under one of several legal rationales that would remain intact even if economic development takings are banned.

Like churches, conservation property does not generate lots of tax revenue and economic development for local government growth. Thus, like churches, conservation property may be particularly vulnerable to Kelo-style economic development takings. Interesting post.

Is This Gonna Be On The Exam?

From Overheard in Lawschool:

Our favorite 1L

Property Prof: So are there any questions on the rule against perpetuity?

1L: Yeah, is this gonna be on the final? Cause I have to know if I should care or not...

Prof: Oh Mr. 1L for you, EVERYTHING in the class will be on the final.

Do Definitions of "Family" Relate To Property?

You betcha! See ProprtyProf blog for the scoop.

We will be covering similar issues soon (see assignment 21).

"City to seize church by eminent domain"

"The city of Long Beach, Calif., is using the power of eminent domain bolstered by last summer's U.S. Supreme Court ruling to condemn a Baptist congregation's church building.

The city wants to remove the Filipino Baptist Fellowship's building to make way for condominiums, the Baptist Press reported."

Link.

Zones of Tolerance

My friend, Prof. J Bud from UT, has some interesting things to say about tolerance and the modern culture wars. Consider this excerpt (from J. Budziszewski, The Revenge of Conscience (1999) at 53-54):

The bottom line is that Neutrality is no more coherent in the matter of religious tolerance than it is in tolerance of any other sort. What you can tolerate pivots on your ultimate concern. Because different ultimate concerns ordain different zones of tolerance, social consensus is possible only at the points where these zones overlap. Note well: The greater the resemblance of contending concerns, the greater the overlap of their zones of tolerance. The less the resemblance of contending concerns, the less the overlap of their zones of tolerance. Should contending concerns become sufficiently unlike, their zones of tolerance no longer intersect at all. Consensus vanishes.

This, I believe, is our current trajectory. The embattled term "culture war" is not inflammatory; it is merely inexact. And we can expect the war to grow worse. The reason for this is that our various gods ordain not only different zones of tolerance, but different norms to regulate the dispute among themselves. True tolerance is not well tolerated. For although the God of some of the disputants ordains that they love and persuade their opponents, the idols of some of the others ordain no such thing.

Something to think about while sitting on the beach at Cancun or Deltona over Spring Break.

Does this relate to Property? As we head into the law of restrictive covenants and consider covenants designed to exclude all sorts of land uses and even people from certain neighborhoods, it is well worth our time to think about our own zones of tolerance--those things we think are tolerable and those things we think are intolerable--and then factor in J Bud's insight above.

"The lady doth protest too much, methinks."

Here is a statement Justice O'Connor recently made in protest against statements made in Congress decrying "judicial activism":

"I, said O’Connor, am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings."

And here is something I wrote in response:

Well, let's rewrite this eloquent statement of Justice O'Connor just a teensy, little bit:

"I, said Braveheart, am against judicial decrees driven by nakedly partisan reasoning. We must be ever-vigilant against those who would strongarm the People by imposing their preferred policies from the Bench. It takes a lot of degeneration before a country falls into judicial dictatorship, but we should avoid these ends by avoiding these beginnings."

The fact that the Justices are beginning to act so defensively encourages me that they are beginning to get it. I am cheered and renewed on the eve of Spring Break.

RLUIPA Developments

Here (from the religion Clause blog).

Judicial Non-Activism

Follow this link to a story and an hilarious picture (artist rendition) of Justice Ginsburg sleeping on the High Court bench.

Warning--this article has absolutely nothing to do with Property. It is just for fun.

I remember my favorite President of all, Ronald Reagan, occasionally fell asleep during cabinet meetings. And I remember at one press conference he responded, with his usual wonderful humor, to a question about whether he had gotten any rest on some trip, by saying something like "I haven't had such a good night's sleep since the last cabinet meeting." Great man.

Online Debate on Kelo

Legal Affairs is sponsoring an online debate between Judy Coleman and Steven D. Anderson on legislative responses to Kelo. Here's the link.

Inclusionary Housing in Omaha

Today's World herald has an interesting article discussing how "students of low-income families flourish in mixed housing." Here is an excerpt:

But a big draw for Timber Creek's 45 public-housing families is the mix of tenant incomes, allowing poor people to blend in and flourish in a suburban area where low-income people historically haven't settled.

"You have more role models here," said Patricia Gunther, a single mother who has lived there for four years. "People get up every morning. They go to work. They pay their rent."

Developments such as Timber Creek can provide some guidance as Omaha grapples with a concentration of poor and minority students in its eastern neighborhoods.

Both the Omaha school district, which has proposed absorbing suburban schools as an equalizer, and suburban school officials, who oppose such a move, say housing patterns have intensified school segregation.

Timber Creek, with its integrated environment, support services for residents and the nearby Holling Heights Elementary School, stands out as an example of how low-income families can thrive in suburbia.

Timber Creek is among only a dozen family-oriented Omaha complexes west of 72nd Street that operate under a government mandate guaranteeing at least some low-income units. The requirements stem from the developers' use of public subsidies, including federal tax credits, to help pay for construction or purchase.

In the Wake of Kelo

The New York Times had an article earlier this week that begins:

In a rare display of unanimity that cuts across partisan and geographic lines, lawmakers in virtually every statehouse across the country are advancing bills and constitutional amendments to limit use of the government's power of eminent domain to seize private property for economic development purposes.

The measures are in direct response to the United States Supreme Court's 5-to-4 decision last June in a landmark property rights case from Connecticut, upholding the authority of the City of New London to condemn homes in an aging neighborhood to make way for a private development of offices, condominiums and a hotel. It was a decision that one justice, who had written for the majority, later all but apologized for.

I love to witness the spirit of liberty unleashed!

Oregon Property Rights Initiative Upheld

From PropertyProf blog, here are some thoughts of Prof. Ben Barros:

The Oregon Supreme Court today reversed a lower court judgment that had invalidated Measure 37, the ballot initiative that requires compensation to be paid to landowners when land-use regulations reduce property values. The opinion is available here. The Oregonian also has a story on the opinion.

I've linked to recent essays on Measure 37 here and here. I've noted before that although I tend to be relatively pro-property rights on takings issues, I think Measure 37 is overbroad and a really bad idea. But the voter anger behind Measure 37 is real, and combined with the post-Kelo backlash should cause land-use planners to question whether consistently sticking it to property owners is a good long-term strategy. Oregon land-use planners probably wouldn't be facing potential disaster if they had made some modest accommodations to property owners' interests from the outset.

I have been waiting for someone to put a property rights amendment on the ballot here. But so far, nothing doing.

Some Career Advice--Another FYI

By now, some of you are thinking "What am I doing in law school? I don't think I want to practice law."

This is not abnormal or something to get depressed about. It is something lots of law students go through.

If you are having these kinds of thoughts, please allow me to suggest a career choice that is worth looking into and one that might not have occurred to you. I refer to the wonderful career of being a law librarian, an academic career as a Professor of Law Library.

Right now the market for law librarians--those with both a J.D. and a M.L.S.--is a big time seller's market. Moreover, the career path to becoming a law library director will be wide and straight for this new generation of law librarians.

It takes one more year of school--to get an MLS at a library school--and then you have a wide open door to the academic market (plus many larger law firms have in house law librarians).

If this is something you might be interested in, I encourage you to talk to one of our outstanding law library faculty-- Professor Rich Leiter, Professor Sandi Placzek, Professor Stefanie Pearlman, or Professor Matt Novak. My son Casey graduated from Minnesota Law and is getting his library degree right now at Missouri-Columbia. And he has found his niche in the law--in the law library to be exact.

By the way, this does not relate to Property Law. It is just another of my FYIs to those who may be interested.

What Is Judicial Activism?

Link. Here it is:

Roger Clegg: A Brief Dialogue on Judicial Activism

Central to the judicial nominations debate is the question of judicial activism. Through a series of questions and answers written for the Committee for Justice, Roger Clegg explains what types of decisions constitute judicial activism and why Americans from across the political spectrum should oppose it. Clegg is president of the Center for Equal Opportunity, a former high-ranking Justice Department official, and one of the nation's leading experts on civil rights law.

A BRIEF DIALOGUE ON JUDICIAL ACTIVISM
By Roger Clegg

Q. What is judicial activism?

A. Judicial activism is when a judge ignores what the text of the Constitution or some other law says and substitutes instead his own preference for what it ought to say. It can involve putting something into the text that isn't there, or taking out something that is there.

Q. Is it activism whenever a court strikes down a statute as unconstitutional?

A. Of course not. If a statute violates the Constitution, it would be judicial activism not to strike it down. Striking down a statute is judicial activism only if the statute really isn't inconsistent with the Constitution.

Q. Is it activism whenever a court overrules one of its own precedents?

A. Again, of course not. The principle of stare decisis - Latin for "Let the decision stand" - is a venerable one, and there are good reasons for courts not lightly to ignore their past rulings. But from time to time they do so, and it really doesn't make sense to call it judicial activism when they do. After all, how can overruling a decision that was itself activist be properly labeled activist?

Q. But don't liberals complain that the current Supreme Court is activist because it has struck down some federal statutes, and mightn't they complain that overruling a decision like Roe v. Wade is activist?

A. They have and they might, but in their heart they know this is a bogus claim.

Q. Okay, so judicial activism is just a court ignoring the text of a law and substituting its own policy preferences. But why is this a left-versus-right argument?

A. It shouldn't be. And, indeed, sometimes judicial activism has led to results that liberals would presumably dislike. Exhibit A is, of course, the infamous Dred Scott decision, where Chief Justice Taney made up a constitutional prohibition against Congress limiting the spread of slavery. At the present time, judicial activism is being used by the left in the culture wars, but it has not always been so, nor will it always be so.

Q. So, probably there are instances where conservatives would like for judges to bend the Constitution's text one way, and liberals would like to bend the text the other way. But why shouldn't this be part of what judges do? Put bluntly: What's wrong with judicial activism?

A. What you're asking is, "What's wrong with judges ignoring the Constitution?" and the answer is the same as the answer to "What's wrong with the President (or Congress) ignoring the Constitution?" Sure, in the short term the Constitution may thwart policies or outcomes that this group or that group might prefer. But in the long run the Constitution protects us all, and it is perilous to urge any of the three branches of government to ignore it.

Q. If it's all that simple, then why doesn't the left - and, especially, the pro-abortion folks who are so enamored of Roe v. Wade - see it?

A. Some of them may actually think a judge can find a right to abortion in the Constitution, but I think they are a minority, even on the left. My sense is that many feminists really see the right to abortion as such an important end that they are willing to protect it by any means necessary. You can't really reason with them. The best you can do is persuade some of the less extreme among them that (a) there's a good chance that even a conservative nominee these days will follow stare decisis with respect to Roe, (b) the overwhelming majority of states will continue to allow most abortions, even if Roe is overruled and, what's more, it will soon be essentially impossible to keep abortion pills out of the hands of women in, say, Utah and Louisiana, and (c) the left is playing with fire by giving five justices the power to rewrite the Constitution.

FYI--An Interesting Article

David L. Abney, Religion and Housing for the Homeless: Using the First Amendment and the Religious Land Use Act to Convert Religious Faith Into Safe, Affordable Housing, 8 Scholar 1-15 (2005).

This article is not available on line, or in the law library, but it is available on Westlaw.

This is not an assignment. Just a "heads up" for those with an interest.

Assignments

Here is the list of assignments updated to include the Sprawl article:


Assignments - Spring 2006

I. Takings

1. U.S. v. Causby (casebook p. 669-677)
2. Mahon (casebook p. 745-749)
Penn Central (casebook p. 754-769)
3. First English (casebook p. 749-754)
Keystone (Handout 8)
4. Euclid and Nectow (casebook p. 693-706)
5. Loretto and Lucas (casebook p. 769-784)
6. Nollan and Dolan (casebook p. 784-803)
7. Palazzolo (casebook p. 803-814); casebook p. 814-815
8. "Poletown Lives!!" video; Midkiff case and Poletown note (casebook p. 714-720)
9. Kelo case (dowload opinion from link on blog).

I A. Law of Sprawl

9A. Sprawl Article

II. The Recording System

10. Casebook p. 1069-1086; Handout 9
11. Casebook p. 1086-1098
12. Casebook p. 1098-1107
13. Casebook p. 1107-1119
14. Casebook p. 1119-1127

III. Adverse Possession

15. Casebook p. 1213-1226
16. Casebook p. 1226-1235; 1243-1252

IV. Real Covenants and Equitable Servitudes

17. Casebook p. 553-563
18. Casebook p. 563-571
19. Casebook p. 571-577
20. Casebook p. 577-587
21. Casebook p. 69-76; 587-595; Moore v. City of East Cleveland (Handout 9A)
22. Casebook p. 595-608


IV. Real Covenants and Equitable Servitudes

17. Casebook p. 553-563
18. Casebook p. 563-571
19. Casebook p. 571-577
20. Casebook p. 577-587
21. Casebook p. 69-76; 587-595; Moore v. City of East Cleveland (Handout 9A)
22. Casebook p. 595-608

V. Nuisance

23. Casebook p. 608-626

VI. Landlord Tenant

24. Casebook p. 385-394
25. Casebook p. 395-404
26. Casebook p. 404-423
27. Casebook p. 423-435; Handout 10
28. Casebook p. 451-457
29. Casebook p. 458-478
30. Casebook p. 478-490

Kelo Soapbox

Ladies and gentlemen, here is your chance to express yourselves about Kelo and "eminent domain abuse." Is it an abuse of power to take land in order to improve the community by economic development?

Which of the opinions in Kelo did you find most persuasive? Why? Is this an activist decision?

I hope many of you will get up on this soapbox and write a comment.

Speak up. Fill cyberspace with your intelligence!

New Assignment

For next Thursday (Feb 2--Groundhog's Day), I want to focus on a brief overview of what some call "The Law of Sprawl," a body of law that is a very hot topic among "progressive" Property scholars who don't like the way people have migrated from urban areas to suburban communities.

Our assignment is to read Michael Lewin's article, "Teaching Law Students About Sprawl." Here is a link to the article (scroll down and download the full text of the article in PDF format from the Social Science Research Network).

The Spirit of Liberty on the March

From the Volokh Conspiracy blog:

BB&T, the nation’s ninth largest financial holdings company with $109.2 billion in assets, announced today that it “will not lend to commercial developers that plan to build condominiums, shopping malls and other private projects on land taken from private citizens by government entities using eminent domain.”

In a press release issued today by the bank, BB&T Chairman and Chief Executive Officer John Allison, said, “The idea that a citizen’s property can be taken by the government solely for private use is extremely misguided, in fact it’s just plain wrong. One of the most basic rights of every citizen is to keep what they own. As an institution dedicated to helping our clients achieve economic success and financial security, we won’t help any entity or company that would undermine that mission and threaten the hard-earned American dream of property ownership.”

A private lender taking a principled stand in favor of liberty. Wow! Global warming, schmobel warming. Hell just froze over!

Kelo

Update

I changed the date on this and moved it to the top so you can find it easier.

As you read the opinions in Kelo for Friday's class, ask yourself which opinion you find most persuasive, Justice Stevens' majority opinion, Justice O'Connor's dissent, or Justice Thomas' dissent.

Also think about this. We hear a lot these days about "judicial activism." Do you think Justice Stevens and the majority are acting as activists in Kelo? Is it activism when a court defers to the legislature? Is it activism to refuse to follow an express constitutional text designed to protect individual liberty? What is activism? Is it merely the way you describe the Court when it does something with which you disagree?

The opinion of the Supreme Court in Kelo is here.

Here is a recent NYT article that notes that:

They have still not moved out. Not Susette Kelo. Not the Derys. Not Byron Athenian or Bill Von Winkle or the others.

Five months after the United States Supreme Court set off a national debate by ruling that the City of New London could seize their property through eminent domain to make way for new private development, no one has been forced to leave.

No bulldozers have arrived to level the last houses still standing, and none are expected soon.

Even though the holdouts lost their case, and the development that would displace them finally seems free to go forward, construction has not begun, and some elements of the project have been effectively paralyzed since the court ruling prompted a political outcry.

The transcript of the oral argument in the case is here.

Here is a link to a recent NPR program on the post-Kelo flurry of legislation protecting property rights. Some say that this results in too much protection of private property rights (but can you really have too much of a good thing?).

Here is an article on Kelo by law prof Richard Epstein.

And here is an interview from Reasononline with Kelo's attorney Scott Bullock on what lies ahead for property rights in the wake of Kelo.

I am only assigning the opinion in the Kelo case. The other links are supplied for those who are interested in more depth.

Great Article About Baseball, Life Estates, and the Iran Hostages

You know how much I love baseball. This is a great article from the Washington Post about how a gift of a lifetime pass from Major League Baseball "helped Iran hostages reconnect with America." It is worth reading over the weekend.

What is the Source of our Rights and Liberties?

In the Palazzolo case, Justice Kennedy refers to an argument made by the State of Rhode Island that takes the position that "Property rights are created by the State" (p. 809) and, thus, what the State giveth the State can taketh away.

Do you agree with this view of the source of our liberties? Are our rights to freedom of speech, religious liberty, and equality also the mere creatures of the State?

Consider what the Declaration of Independence says about this issue:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

What are your thoughts?

Beach Day--Tomorrow

Hey, dudes. Forget about Christmas in July; tomorrow is day at the beach in January!

For tomorrow's discussion of Nollan v. California Coastal Commission you are all encouraged to come dressed for a day at the shore. Feel free to wear an Hawaii Print Shirt or bring a boogie board.

Also, think about the relationship between ends and means of a regulatory scheme. What does it mean when the Court says that there must be an "essential nexus" between the ends or goals of a restriction on beachfront development and a condition imposed on the grant of permission to rebuild?

Suppose I go to my doctor for, say, strep throat, and he treats me by putting a band aid on my big toe. Do the means (the treatment) bear a reasonable relationship to the ends (curing my strep throat)? In other words, is there an "essential nexus" between the treatment and the goal of curing my strep throat? What would happen to a doctor who practiced this kind of medicine? [Would he end up serving on the California Coastal Commission?] Think about my big toe when you prepare for our discussion of Nollan.

Welcome Back!

Welcome Back for 1L Spring Semester: The Sequel. To get you off to a cheerful start, here is a link to some great lawyer jokes. And here is one you may especially enjoy:

A paralegal, an associate, and a partner of a prestigious New York law firm are walking through Central Park on their way to lunch when they find an antique oil lamp. They rub it and a genie comes out in a puff of smoke.

The genie says, "I usually only grant three wishes, so I'll give each of you just one."

"Me first! Me first!" says the paralegal. "I want to be in the Bahamas, driving a speedboat, without a care in the world."

Poof. He's gone.

"Me next! Me next!" says the associate in astonishment. "I want to be in Hawaii, relaxing on the beach with my personal masseuse, an endless supply of piña coladas, and the love of my life."

Poof. She's gone.

"You're next," the genie says to the partner.

The partner says, "I want those two back in the library after lunch."

Nyuknyuknyuk!

Syllabus and Handouts

Available in the racks on South Side of second floor.

Additional Assignments

UPDATE --First Assignment For Spring Semester

For our first class next week, lets pick up where we left off. I believe we had covered through the Keystone case, so lets be prepared to discuss First English and Euclid and Nectow.

For those of you who want to read ahead a bit (something I don't recommend by the way), the next major assignment after we complete the Takings assignments, will be the Recording System (pages 1069-1127).

14. U.S. v. Causby (casebook p. 669-677)
15. Mahon case (casebook p. 745-749); Penn Central (casebook p. 754-769)
16. First English (casebook p. 749-754); Keystone (Handout 8)
17. Euclid and Nectow (casebook p. 693-706)
18. Loretto and Lucas (casebook p. 769-784)
19. Nollan and Dolan (casebook p. 784-803)
20. Palazzolo (casebook p. 803-814); Casebook p. 814-815
21. "Poletown Lives!!" documentary; Midkiff case and Poletown case (casebook p. 714-720)
22. Kelo (download opinion from link provided above)