"Fair Housing, Free Speech and Choosy Roommates"

Adam Liptak has this article in the NYT. If that link doesn't work, try the link in How Appealing. Here is an excerpt:

Gene Kavenoki wanted to rent out a spare bedroom in his West Hollywood apartment and he had a few requirements.

“I am not looking for freaks, geeks, prostitutes (male or female), druggies, pet cobras, drama, black Muslims or mortgage brokers,” he wrote on Roommates.com.

Other users of the Web site were more adamant about their desires. “Must be a black gay male!” one said. “Please no flakes, deadbeats or white trash!” another said.

And some were a little creepy. A 57-year-old man said he was offering “free rent for the right woman” in exchange for “quiet companionship in an intimate place.” He preferred, he wrote, “a Hispanic female roommate so she can make me fluent in Spanish or an Asian female roommate just because I love Asian females.”

Those postings are part of a lawsuit by a fair housing group against Roommates.com, a matching service that does pretty much what its name suggests. The suit says the site violated fair housing laws, which forbid publishing real estate ads that indicate preferences based on race, religion or sex.

Fair housing is important, but so is free speech and so is the right to choose who is puttering around in your living room. Congress has taken two stabs at striking the right legal balance, but what it has created is a tangle of contradictions.

This article highlights the tension that sometimes exists between liberty and government-mandated equality rules. How should this tension be resolved? Do people have a right to choose their roommates? Or should the law forbid housing discrimination in roommate selection?

Spring Semester Schedule

UPDATE:

As I announced in class today, there will be no class on Friday January 25--I will be down at the Legislature testifying.


Property class will meet this semester on Wednesday, Thursday and Friday from 1 PM until 2 PM in Room 113.

Notice that this class meets for a full 60-minute hour. Therefore, we will meet 35 times (as opposed to the 42 class sessions for a 50-minute class). Thus, I will need to cancel 7 classes this semester to get down to 35 days of class.

Right now, the only class I have decided to cancel is Wednesday February 6, President Reagan's birthday.

I will probably cancel a few other Wednesday classes and we may finish up a week early. As I said, I need to cancel a total of 7 classes to get down to 35.

Lincoln Journal Star: "Neighborhoods with few home owners can reach 'tipping point'"

From today's National Paper of Record, here is an article about home ownership and social welfare. Here are some excerpts:


"One of the first things Michael Snodgrass’ teenage son noticed after moving to Lincoln this summer was how quiet it was at night. No gunshots.

Snodgrass had lived and worked for 15 years in one of the roughest parts of Kansas City. At his job, where he worked to improve the inner-city, most people called him White Guy.

He’d hear gunfire while walking from his car to his house.

He once came across the body of a man shot to death in an intersection.

As he was contemplating whether to return to Nebraska to lead NeighborWorks Lincoln, a 2-year-old in his neighborhood was accidentally killed in a drive-by shooting.

And while Lincoln’s inner city is nothing compared to Kansas City’s, Snodgrass immediately saw some big red flags after he arrived here. He’s surprised that so few Lincoln residents own their homes, particularly in older neighborhoods.

The average state and national homeownership rate is about 68 percent. Lincoln’s is 60 percent.

Experts say any neighborhood with less than 55 percent homeownership has reached a “tipping point,” meaning things could tip one way or another, for better or worse.

None of Lincoln’s core, older neighborhood rates are above 50 percent. And in one area south of the Capitol, only 6 percent of people own their homes.

Even given the impact of Lincoln’s college population, those are low numbers.

Renters aren’t bad people, but home ownership stabilizes neighborhoods. People who own their homes often take better care of the property and are concerned about property values.

Snodgrass says Lincoln is experiencing the doughnut effect — a hollowing out of the city core as people move to newer homes and apartments on the edge of the city. The rental-heavy city core is being pounded by vacancy rates in the double digits.

The effect is evident in the abundance of “for rent” signs. Apartment buildings that are half empty. Overgrown yards, broken windows, discarded furniture.

Some landlords are so desperate they’ll rent to almost anyone, says Lynn Fisher, who owns about 200 rental units and is head of the Real Estate Owners and Managers Association.

Criminal background checks fall by the wayside. Credit problems are overlooked. Sketchy renters move in, and scare away the good renters.

Landlords who can’t rent their apartments are less likely to be able to fix a leaky roof or moldy bathroom. Snodgrass says this “perfect storm” takes a toll on the heart of the city, where once-grand historic homes get neglected. Where the broken-window theory — that blighted property attracts crime —plays out.

The result of prolonged disinvestment and low homeownership rates can be seen in north Omaha and the core of Kansas City, Snodgrass says."

Read the whole thing if you are interested in urban housing, economic development, and social welfare.

By the way, although I find the court's opinion in Euclid troubling, perhaps the court understood that home ownership (as opposed to renting) is a legitimate concern for public policymakers.

Euclid and Nectow: Why Did they Come Our Differently?

The issue was the same in both cases--does the law being challenged bear a substantial relationship to a legitimate police power interest. Why did the cases come out differently?

Facial vs. as applied application.

Gotham Times on Free Trade and Importing Jobs

Interesting article in today's edition.

Nevada Supreme Court Determines Equitable Considerations Justify Claim for Per Se Taking of Airspace

Here

City Bans Religious Ministry From Feeding the Hungry On Public Property

From the Religion Clause blog another example of "Property and No Property":

"In West Palm Beach, Florida, two non-profit groups have sued to challenge the city's three-month old ordinance that bans their feeding of the hungry on public property at two locations in the city. Yesterday's Palm Beach Post reports that plaintiffs claim the ordinance is vague and overbroad. One of the plaintiffs, "Art and Compassion" is a religious group that says feeding the poor is part of their religious obligation to God. Referring to a recent grand jury report that found West Palm Beach Mayor Lois Frankel had created a "pay to play" environment in which developers felt pressure to contribute to city organizations and the mayor's campaign, plaintiffs in this law suit charge that a "pay to pray" system has been created. The lawsuit alleges: "Those who can pay for a building or pay money for the mayor's special projects or charities are granted the permission to pray and practice their religion as they see fit, but those who lack the funds to own a building. . . are told to go inside another's church in order to carry out their sacred duties outside the public view.""

Exams Results: Good Work!

Here is the breakdown for the Midyear Exam:

7 Students scored 100 points

9 Students scored 96 points

11 Students scored 92 points

7 Students scored 88 points

6 Students scored 84 points

13 Students scored 80 points

5 Students scored 76 points

1 Student scored 72 points

1 Student scored 68 points

4 Students scored 64 points

3 Students scored 60 points

1 Student scored 56 points

1 Student scored 52 points

1 Student scored 40 points

The average score was 83.44 points

The test median was 84 points

This was good work. More than half of you scored above 80% on this short exercise.

As I said in class, don't read too much into your performance on the mid-term exercise. The final will count for 300 points, and things could change a lot based upon your performance on the final. Be neither discouraged nor overconfident.

I am generally pleased with the perfomance of the class as a whole.

Have a great holiday and winter break.

See y'all soon.

Rick Duncan

From the Volokh Conspiracy--"Property Law in Jane Austen's Pride and Prejudice"

Once again, our class is on the cutting edge of Property legal education.

Here is the link.

Good Luck on the Exam and Merry Christmas (or Happy Holidays)

Good luck on the exam and Merry Christmas (or Happy Holidays). Here is the Christmas letter we send to our friends and relatives:



Merry Christmas from the Duncans!

Yes, Santa, there is a Virginia. We know this for sure because we spent 2 months living in a beach house on Sandbridge Beach while Rick taught Religion and the Constitution as a visiting summer professor at Regent Law School. We had a wonderful time swimming in the waves, walking along the beach at sunrise and reconnecting with good friends from our last trip to Sandbridge.

Our Queen-for-a-year, Her Majesty Queen Hannah of Hickman, spent the year basking in the glow of her success at last year’s Miss Nebraska Pre-Teen competition. She competed at nationals in November and won the talent competition. She also got to tour Hollywood, spend a day at Disneyland, and make lots of royal friends among the other competitors at the National America Miss competition in California. One benefit of her pageant experience was the opportunity to model professionally for SELECT Model Management; she has modeled regularly for Pamida ads including being a cover model on one of their circulars.

Our little one, Katie, has become quite the equestrian. She started riding lessons with a wonderful teacher, and now the highlight of Katie’s week is riding Dusty or Bravo, her two favorite horses. She also adopted yet another kitten – Prince Charming or “the Tigster” as Rick likes to call him, and, after visiting the vet recently for the kitten’s first exam, Katie made a major career decision upon seeing where vets occasionally have to insert their fingers. In fact, that very night she came home and announced, “I don’t want to be a veterinarian!” Katie also loves music and continues to sing in the Home School Prep Choir and take piano lessons. The only thing on her Christmas list this year is an electric keyboard.

Becca started high school with a bang this year. She is the only freshman girl ever to be selected by audition to be in Image, the premier singing group at Lincoln Christian School. She has been growing like a weed and now, at sixty-seven and one half inches, Becca is the second tallest person in Duncan Clan. She has become a beautiful and talented young woman and we are very proud of her. Becca has the earliest bedtime of anyone in our family, because she has decided that going to bed early is the only way she can get 9 hours of sleep a night and still be up for school in the morning.

It doesn’t seem possible that Josh is about to graduate from high school and head off to college. It all went by in a twinkle. He has had a great senior year at L.C.S. He is a National Merit Semi-finalist, President of the school drama and Journalism clubs, and has already won numerous college scholarships. It looks as though he will be attending Concordia College in Seward pursuing a degree in art and taking part in the school’s drama program. Josh is also excited about being eligible to vote in the next presidential election and early indications suggest that his political choices will make his dad look like a flaming liberal.

Casey continues to enjoy his job at University of Texas Law Library and plans to be home for the holidays with his fiancée Beth and their dog Tessie. We think we can figure out where Casey will bunk, but we’re not all that sure about sleeping arrangements for Tessie at the Duncan menagerie.

Kelly now has the distinction of being the “Queen Mum” and has spent the year catering to the royal needs of Her Majesty Queen Hannah of Hickman. She did enjoy an 8-day “vacation” in sunny southern California accompanying Hannah to the National pageant, but since it occurred over Thanksgiving week she was sorry to miss out on the holiday at home with the rest of the family. She continues to be active in Bible Study Fellowship as the Children’s Supervisor and enjoys the fellowship of other Christian women.

When Rick learned that he was responsible for preparing Thanksgiving dinner, he immediately went out and purchased a dozen ”Hungry Man” turkey pot pies. As he put it: “Heck, you got your turkey, you got your potatoes, you got your vegetables, you got your gravy, and you got your pie. What more do you need for a Thanksgiving feast?” Actually, Becca prepared a splendid meal that even impressed Granny and Becca’s non-royal siblings. And to his credit Rick helped with the mince pie and the baked ham. Rick’s movie recommendations for the year include Pursuit of Happyness and Amazing Grace—each of these films tells a great story and each also has a great message. And he continues to wait expectantly for the New York Times to run a Pulitzer Prize winning article blaming the collapse of the New York Yankees on global warming! Three cheers for those melting ice caps! The entire Duncan Clan wishes you a very Merry Christmas and Happy New Year. Throw another log on the fire!

What Should We Do About Homelessness

• Should we follow the suggestion of Prof. Ellickson and remove the homeless "from certain public spaces, and [create] a zone for them in other public spaces?" P. 1449 n. 103 Notice that this is a zoning approach which permits the homeless to "panhandle" and "bench squat" only in the "Red Zone" of town. What are the benefits and costs of this plan?
• RLUIPA is a law that helps religious ministries, including those aimed at the homeless and the destitute, deal with similar kinds of "Red Zone" issues, zoning laws that exclude religious land uses from certain commercial and/or residential districts. Is this good?
  
• Should we encourage and subsidize private giving designed to help the poor. What about a significant dollar-for-dollar tax credit for charitable contributions to private charities targeting the poor, such as homeless shelters and soup kitchens? For example, I could donate as much as, say, $2500 to the City Mission (or other similar charity of my choice) and get a dollar-for-dollar tax credit from the IRS. What are the benefits and the costs of this?
• What about a large tax increase to fund government programs to help the homeless?
  
• Some of us could support the tax credit legislation, but not the tax increase. Others could support the tax increase, but not the tax credit. Indeed, this might make it impossible to get either bill enacted. Why is this?
  

Property and "No Property"

UPDATE

If you have a few minutes, please write a comment or two about the "Property vs. No Property" article. Maybe we can discuss some of your comments tomorrow in class.

Here are a few questions I hope to discuss in class this week:

• Does property "enhance freedom" or does it limit freedom by giving property owners "imperium over...fellow human beings?" For example, as the owner of Blackacre, I have the right to exclude persons from trespassing on my land. Is this property right of mine best understood as a protection of my liberty (the freedom to use my land as I see fit) or as the power to control my fellow human beings? Is the liberty of property any different than any other liberty? Does my freedom of speech include the right to control others who wish to physically silence me? Does a woman's liberty of abortion include the right to be protected against interference from those who try to physically stop her from entering an abortion clinic? Does my liberty to walk on a public sidewalk include the power to be protected from those who try to prevent me from free use of the sidewalk?Isn't it always true that A's liberty to do X includes the power to forbid B from stopping A from doing X?


• But if we allow people to be free doesn't that mean that disparities of power will result? Freedom of speech tends to give more power to the eloquent and wise than to the tongue-tied and ignorant. The liberty of sexual autonomy provides greater dating and marriage opportunities to those whose gifts (physical gifts, intellectual gifts, and material gifts) are highly valued in the relationship marketplace than to persons who have less of these gifts. So to, the liberty of property results in "disparities of power that accompany disparities in wealth." Should we restrict all of these liberties to ensure greater equality?


• If property is essential to personhood, then must a government that respects personhood "guarantee citizens all entitlements necessary for personhood" and also "cease allowing one person to impinge on the personhood of another by means of her control over tangible resources?" But what does this mean? Where do these "entitlements" come from? Must we take part of A's personhood (by taxing away A's property) and transfer it to B? If B is homeless and walks into my house and takes possession of part of my home, must the government prevent me from excluding B from my home?


• What should we do about the extremely poor, those with very little or "no property?" Does it matter why they are so poor? Should society do more for the poor widow than for someone whose difficult situation is the result of poor choices they have made? In a free society, how much coercive redistribution is too much? What is the role of private charities including faith-based charities?

Recent 7th Circuit RLUIPA Decision

From the Religion Clause blog:

"Writing for the 7th Circuit in his usual engaging style, yesterday Judge Richard Posner in Digrugilliers v. Consolodated City of Indianapolis, (7th Cir., Oct. 30, 2007), reversed a district court's denial of a preliminary injunction in a religious land use case. At issue was whether in requiring a Baptist Church to obtain a variance in order to lease space for its religious services in a district zoned for commercial use, Indianapolis was violating the provision of RLUIPA that prohibits unequal treatment of religious institutions."

Print out that case and lets read it for next Friday's class (as part of Handout 7). Here is a direct link to the 7th Circuit's opinion.

Property and "No Property"

Here is the article I want you to read for class discussion on the last Thursday class (i.e. after we finish RLUIPA): Jane B. Baron, Property and "No Property," 42 Hous. L.Rev. 1425-1449 (2006). Here is a link to a PDF version of this article on Hein online. Print it out at your leisure and be prepared to discuss it two weeks from tomorrow.

Pursuit of Happyness

Here is a post I blogged around this time last year. It is my reflections on a great property movie, one worth renting over the Thanksgiving break:

My wife and I finally got out of the snow and in to Lincoln to see Pursuit of Happyness. It was a wonderful movie, a Rocky for the average guy struggling to take care of his family. I also had some very definite thoughts about how the film relates to Property as a fundamental human right. Here are some of my thoughts:

1. The first thing I thought about as I watched Chris Gardner struggle to survive with his son as a homeless single dad was Prof. Baron's article about Property and "No Property." If property rights are essential to personhood and human dignity, then to have "no property" is to exist as a non-person, as one who has no dignity. Of course, Chris Gardner was a strong man, a man who claimed personhood and human dignity in spite of his homelessness, but the point remains--he hit rock bottom when forced to sleep with his son in a public restroom and only his strength, and faith, and indomitable will enabled him to overcome these horrible circumstances.

2. I thought about RLUIPA as I watched Gardner survive with the help of a religious ministry whose mission was to feed and shelter the homeless. This is exactly the kind of religious ministry that often finds itself unpopular under zoning laws that are designed to protect the interests of single family neighborhoods and commercial districts. RLUIPA protects the right of ministries like this to locate where they can do the most good for people like Chris Gardner and his son.

3. What is the "pursuit of Happiness" that the Declaration of Independence declares to be an "unalienable right" given to each person by his or her Creator? Well, it is the right to pursue property, to pursue a livlihood, to pursue the means to support your family and to provide for your children. My salary makes me happy not because I love money, but because my income enables me to provide a home for my family, to pay tuition for my children's education at schools I believe in, to pay for my daughter's dance lessons to help her pursue her dream of being a ballerina, and to save to secure my children's future.

This movie is about one man's pursuit of happiness, one man's struggle to work hard to acquire the means to care for his son. Chris Gardner refused to stop pursuing his dream of a good job and the income (i.e. property) that job would provide, because he wanted to be able to afford a good home for his son, a good education for his son, and an easier road for his son than the one Chris had to walk. Property is not things, it is what enables us to meet our responsibilities to our children and families. And this is why property rights are so essential to the good life in a free society, because when government takes our property--whether directly or through taxation--it takes away some of our ability to acquire a home for our families, to educate our children in a school of our own choosing, and to save a nest egg to protect our families against an uncertain future.

4. Of course, this is not to say that there is no role for government to provide a safety net to protect the poor (those with little or "no property") from falling as far as Chris Gardner fell. But it is to say that when government takes our income, we should never forget that the tax funds extracted from us make our own pursuit of happiness that much more difficult. At least, that is how I look at taxes and takings. They are a necessary evil, but an evil nonetheless. I hope you didn't miss that scene in the movie where Chris Gardner's bank account is seized for taxes by the IRS, and as a result Gardner lost the little cushion ($600) he had to survive until he could finish the internship program.

5. I also appreciated what Chris said when he emphasized that we don't have a right to happiness, only a right to pursue happiness. In other words, the pursuit of happiness requires hard work, and each individual is responsible for pursuing his or her own happiness. The more effort, the more determination, the more likely you will succeed. But there are no guarantees.

Your comments are welcome. See you next week!

"7th Circuit Finds Exclusion of Religious Uses from a Buffer Zone May Violate RLUIPA’s Equal Terms Provision"

From Law of the Land blog

Why do you think local government seems so often to exclude religious uses from residential and even commercial districts?

Why from residential districts?

Why from commercial districts?

Another RAP Hypo

Suppose that on January 1, 2007, Harvey Grutz, the owner of Blackacre in Fee Simple Absolute, conveys it "To John Walton and his heirs so long as Blackacre is used as a farm, then to Hannah Montana and her heirs if Hillary Duff is then alive."

What is the state of the title?

Under the CL RAP, is Hannah Montana's interest valid?

When will the contingency certainly be determined one way or the other? Is that within the period of lives in being (as of January 1, 2007) plus 21 years?

And here is another--Grutz conveys "to A and his heirs, but if the property is ever used for commercial purposes, then to B and his heirs."

What is the state of the title before applying the Rule?

Now apply the Rule?

Property and the Homeless

Over at PropertyProf blog, there is an interesting post about "laws that restrict the ability of homeless people to sleep in public places."

Here is an interesting excerpt, about a church that allows the homeless to sleep in its parking lot. Often, when a church opens up a soup kitchen or allows the homeless to crash on its property, neighbors will complain and argue this violates zoning laws. We will soon be studying these kinds of issues when you get to Handout 7 and the Religious Land Use and Instituionalized Persons Act (RLUIPA). Here is the excerpt:

In my local area (Dallas, TX), a local church has decided to open up its parking lot to homeless people as a place for them to sleep at night (see here for story). Their move has generated complaints from nearby business owners who have said that the presence of homeless people have driven away customers. This
conflict raises yet another tension within our private property system - the privilege to use one's property versus the recognition that we can't use our property in ways harmful to our neighbors (again, another theme from the Singer
casebook). Until adequate shelter and other services are provided to homeless people, the inherent tensions within our property system will continue to manifest in various ways.

Property Restrictions and Religious Liberty

Here is a recent post from the Religion Clause blog:

"Yesterday's Newsday reports that a homeowners' association board in a gated community in Medford, New York has created controversy by banning religious statues, bird feeders and birdbaths from all common areas, including gardens outside individual condominiums. This has forced Gloria Gamarano to remove a statue of the Virgin Mary from her garden. Another resident was told to remove from her garden a decorative statute of St. Francis of Assisi that contained a small birdbath. The Catholic League for Religious and Civil Rights has criticized the rule as discriminatory against people of faith. Arlene Crandall, president of the homeowners' board, says the goal was to eliminate from commons areas statues that appeal only to one segment of the community's population."

This is an example of intolerance in the name of tolerance. The religious statues are prohibited because they appeal only to "one segment" of the community. What does that mean? Doesn't tolerance and diversity recognize that differences exist and are valuable and should be celebrated? These rules may well violate various civil rights laws forbidding religious discrimination in housing.

What would you think of a rule banning a statue of Martin Luther King from the garden outside your condo because it appealed to only one segment of the community? Tolerant? Or intolerant? Respect for diversity? Or disrespect for diversity?

Great Property Story

about ownership of a human leg--here is a link

Legal Theory Blog Lexicon Classics: Rawls' Veil of Ignorance

Here is a link to a great legal theory lexicon post that is specifically aimed at helping 1Ls think about legal/policy issues.

In Con Law II, for example, I like to use the "veil of ignorance" tool to think about k-12 education of children and school choice. It goes something like this: If you were deciding what role government should play in financing the education of children, but you didn't know whether the curriculum at public schools would be religious or secular, liberal or conservative, multicultural or not multicultural, or whether you would find yourself in a family that is rich or poor or religious or non-religious, would you support a public school monopoly or some kind of parental choice/voucher scheme? The idea of the veil of ignorance is to force you to choose a system that would be fair for everyone (or almost everyone), because you are choosing the system without knowing what position you will be in when you step out from behind the veil of ignorance.

It works in all kinds of policy areas, including many property issues. We sort of used it when we discussed copyright.

If you are interested in this kind of legal analysis, Prof. Solum's post is very well done.

Overheard in Law School

Here is a funny "Property" quote from a very funny law school blog.

"Tree Law"

Over at the PropertyProfs blog, a blog on which I have guest posted in the past, there is an interesting post about changes in "Tree Law." Here is a link. We won't cover this subject in the course, but it is interesting.

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.