Mid-Year Test results

Here is the breakdown for the Midyear Exercise:

1 Student scored 100 points (bravo!)

2 Students scored 96 points

4 Students scored 92 points
 

2 Students scored 88 points

4 Students scored 84 points

5 Students scored 80 points

5 Students scored 76 points

3 Students scored 72 points

2 Students scored 68 points

2 Students scored 64 points

3 Students scored 60 points
 

4 Students scored 56 points

4 Students scored 52 Points
 

1 Student scored 48 Points

1 Student scored 40 points

1 Student scored 32 points
 

The test median was 76 points

The average score was 71.92
 
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.

Also, please ignore the "quartile" rankings that the Law College will provide pursuant to a new faculty rule. I consider these quartiles arbitrary at this point in the course, because I simply don't have enough data to make any judgment about your relative ranking in the class. I divided the scores into quartiles only because I was required to do so.

I am pleased with the performance of the class as a whole. But there is always room for improvement

I hope you have a great Spring Semester 2014!

"Texas Forever, Six"

If you have not seen the TV series, Friday Night Lights, consider watching it over the break.

I just finished the last episode (for the 3rd time--I'm a loyal guy) and it is one of the best TV series of all time.

I just love the Coach, and Matt Saracen, and, of course, my younger brother, Tim Riggins.

It is available for free on Amazon Prime, and maybe on Netflix as well.

Have a great break and I will see y'all come mid-January.

Coach Duncan

He Knows If You've Been Sleeping

Have a great Christmas or Holiday Break.

And remember, drink lots of hot chocolate, wear onesies, and talk about the individual mandate with family and friends.

Exam Info

As I have said several times in class, pay careful attention to the instructions to the exam.

One of these instructions informs you that "unless otherwise indicated" in a particular question, you should answer the questions "in accordance with traditional common law rules" and then gives you a list of common law rules to consider to be in force.

Read that direction carefully. And then read it again.

You should also read each question carefully, because sometimes the question may "otherwise indicate."

So, if a question tells you to decide the case under modern property law or under contemporary Nebraska property law, you should do so. These will usually be areas of the law in which we have specifically discussed how old common law rules have been abolished or altered by modern property law.

So basically, read the instructions carefully and the questions carefully so you will understand what the questions are asking you to do.

My Most Recent Article on the Establishment Clause

This is not an assignment. Nor is it about Property.

This is just something you might find interesting.

I have recently uploaded on SSRN my most recent article, entitled "Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto."  I mentioned some of these ideas at a Federalist Society event recently, and some of you have asked me about it.

This is an article critiquing the Supreme Court's jurisprudence concerning passive religious displays in the public square, and the true source of the Court's "Wall of Separation Between Church and State." Hint: It is not Jefferson, but rather an organization that Justice Hugo Black once belonged to!

You can download a free copy here: Duncan's Article on Just Another Brick in the Wall.

Happy Thanksgiving

                                               Katie and Easy December 2011


Have a great Thanksgiving vaca. And try to spend some time with family and loved ones.

Q & A Session: Friday Nov. 22

We will try to finish co-tenancies today.

Tomorrow (Friday) class will be devoted to a Q & A session. No new assignment for Friday.

Tonight, review your notes and come tomorrow with your questions.

Landlord-Tenant Law Speaker

 I thought I would forward this message and encourage you to attend.

The Nebraska Real Estate Law Society will be hosting local real estate attorney Jan Beran Tuesday, November 19th from 12:10 - 1:00 in room 111.

Jan will be speaking about landlord-tenant law and his general practice as a real estate attorney.  Anyone interested in keeping their rent deposit is encouraged to attend.  If you have already given up hope on your deposit, this is also a great opportunity to learn about tenant rights, evictions, rental agreements and other landlord-tenant issues.  

Pizza will be provided, so please RSVP by Monday at noon.

Thanks, 

--

Ryan Dorcey

J.D. Candidate 2015
University of Nebraska College of Law
rdorcey@unomaha.edu
(402)-366-9316

Weekend Reflection--Nebraska and Property

On my recent travels, I decided to re-read one of my favorite books about Nebraska and life--Local Wonders by Nebraska's Poet Laureate, Ted Kooser. He tells a story about Branched Oak Lake and how government had to take some family farms that were in the path of the waters.

[A]nd the government condemned their land. An old man told me recently that his aunt, a single woman in old age, refused to leave her house. "She just kept going back there," he said. "They'd come and take her away, and pretty soon she'd be back. Finally, they had to go down there and break all the windows out of the house to get her to leave." The signs read Recreation Area. Her house is underneath it somewhere.

Remember this story when we read the Kelo case next semester.

And if you are looking for a great read, Local Wonders may be your ticket.

Class Schedule: More Class Cancellations

                Believe it or not, this is me when I was in law school with my 68 'Stang



After Thursday's double class, we are required to cancel 8 classes.

Here are the first six cancellations:

1. Wednesday September 18
2. Thursday September 19
3. Friday September 20 (my wife is having out-patient surgery)
4. Friday October 4 (I am teaching a CLE at the Nebraska State Bar Meeting)
5. Wednesday October 9 (I will be speaking at Colorado Law School)
6. Wednesday  October 30) (I will be speaking at Rutgers Law School)
7. Wednesday Nov. 6 

O'Reilly and Hannity Hypo

Suppose Grutz, a big fan of Fox news, conveys Blackacre "to Sean Hannity for life, then to the heirs of Bill O'Reilly."

What is the state of the title?

Now suppose Hannity dies and O'Reilly is still alive?

Handouts 2-6

Are available in the handout racks outside the South Faculty Office Suite in the Library.

Hornbook Reading

Fishing Pier at Sandbridge Beach, Virginia, July 2008 (photo by Becca Duncan)

Just a brief word about the assigned reading in the Hornbook. Normally, our class discussion will focus on the cases and problems that we read in the casebook. The purpose of the readings in the Hornbook is to help you understand the concepts and black letter rules that arise in the cases. We will usually not discuss the Hornbook in class, but hopefully what you read in the Hornbook will help you better understand the cases we discuss.

A few years ago I noticed that students were not mastering all of the rules that govern the caselaw. They were often purchasing "study aids" like property "flash cards" and such that are sometimes wrong and usually overly simplistic. Sometimes they would come to me the day before the exam and ask me to go over all the rules with them, an impossible task given that it took us an entire year to cover them the first time. So I decided to assign a good secondary source to help students get a clearer grasp of the rules and the reasons animating the rules, something that is written well and is always there for you to read and re-read. The Stoebuck & Whitman book is the best hornbook out there on Property.

I hope this helps you understand how the assignments are structured--you should always read the casebook assignments before class, because that is what our class discussion will be about. You should read the Hornbook assignments--and you are "responsible" for reading them--but it is not essential that you do this reading before any particular class.

Anderson V. Gouldberg Limerick

From Lawmericks Blog:

 

Anderson v. Gouldberg

Supreme Court of Minnesota, 1892
53 N.W. 636
Property

The plaintiffs had stolen some wood,
And defendants took more than they should.
"The last wrongful getter
Has title no better,"
And the court for the plaintiffs so stood.

As between two thieves, Thief No. 1 and Thief No. 2 (who steals from Thief No. 1), who has the better claim to possession?

Baseball and Movie Day

This Thursday (September 5) our class will begin at 12:10 AM (i.e. fifty minutes early) so we can watch a great documentary about the Barry Bonds' baseball case involving two would-be first possessors.

Popcorn and Milkduds are permitted, but not required.

Seamus Heaney--Irish Poet Dies at Age 74

“The way we are living,/ timorous or bold,/ will have been our life.”    
          Seamus Heaney (source NYT)

Native American Burial Ground Note 5--Page 107

Let's talk about this note for a few minutes at the start of class today.

Hornbook Reading

As you study for the exam and struggle with some of the rules and doctrine, don't forget to re-read the relevant sections of the Hornbook. It does a really good job of laying out and explaining the many rules we studied. If you have gaps or unclear spots in your notes and outlines, the Hornbook is the first place to go for clarification.

Final Exam Info

The Final Exam is a three hour (closed book) exam that counts for 300 points (the mid-year for Fall semester counted for 100 points). The exam is cumulative and will cover the materials covered in both Fall Semester and Spring Semester. Here are some things you need to know:

1. The exam is closed book. Do not bring any printed materials into the test room. Do not bring cell phones or any unauthorized electronic equipment into the test room.

2. The exam contains both essay questions and multiple choice questions.

3. All answers to essay questions must be typed on a computer using Extegrity Exam 4 software. Check with Vickie in the Dean's Office with any questions about procedures.

4. If you need a lab computer, make sure Vickie knows.

5. Be sure to observe the maximum word limits for each question. If you go beyond the word limit, it will adversely affect your grade for that question. If I say "answer the question in approximately 250 words or less" that means what it says. I use "approximately" to be flexible, so you don't have to stop in the middle of a sentence. 275 words is okay; 300 words is not okay. Please don't abuse the flexibility that I give you by using the word "approximately."

Use Restrictions a la France

I thought you might enjoy a little comparative look at some of the land use issues we have been discussing. From the PropertyProf blog:

NIMBY Au Francais

Bernard Arnault, the man who runs the Louis Vuitton fashion house, finds himself in a bit of a donnybrook with a local nighborhood association over the construction of a museum to house his art collection.  Arnault has begun construction of his art palace in the middle of the Bois de Boulogne Park, upon land donated by the City of Paris. According to the NY Times, local neighbors object to this intrusion and make a simple argument: "the park is intended for the public, the museum is next to a children’s playground, and the building itself violates the rules governing the park by blocking a paved roadway that should be open to the public."  This reasoning carried the day in a recent court battle.  A judge annulled the building permit with construction on the museum half-finished.
Arnault and his powerful friends frame the issue differently.  They argue that the neighbors “show a blind and pernicious individualism that goes against the general interest. They oppose any change for the sake of it. In their tight little suits, they want to put Paris in formaldehyde. It’s quite pathetic.”
The Times concludes that "this being France, and Mr. Arnault being a sort of Ozymandias, he is likely to get his pyramid anyway" - the French Parliament is in the process of overriding the court's decision and granting the museum a special waiver.

Sex-Offender Residency Laws and Covenants

Over at the PropertyProf blog, there is a post about an interesting issue concerning covenants:

Asmara Tekle-Johnson (Thurgood Marshall) has posted two articles about sex offenders and land use controlls on SSRN:
The first is In the Zone: Sex Offenders and the Ten-Percent Solutions; here's the abstract:

At first glance, sex-offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than ten percent of the very real problem of child sex abuse, as family members and acquaintances of children commit more than ninety percent of this abuse. On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and social margins, condemning many low-risk offenders to a lifetime of isolation while breeding optimal conditions for high-risk offenders to reoffend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a false sense of security.

This Article challenges prevailing judicial orthodoxy that many sex-offender residency restrictions are constitutional under the Ex Post Facto Clause. The Article applies the analytical framework of Smith v. Doe, the U.S. Supreme Court's most recent case involving sex-offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The Article proposes an innovative "positive" zoning scheme, the Sex-Offender Containment Zone, which zones high-risk convicted sex offenders back into the city in a manner that is effective, humane, and constitutional.

The second is Safe: Restrictive Covenants and the Next Wave of Sex Offender Legislation; here's the abstract:

This Article examines the emerging phenomenon and implications of sex offender covenants, the latest wave of sex offender legislation, under common law property rules such as touch and concern and the doctrine prohibiting restraints against alienation. The paper theorizes that courts use common law property rules to strike down personal "who" covenants, such as those based on race, age, disability and often permanently debilitating sex offender status, that run afoul of public policy norms-most particularly, the wide availability of safe and decent housing for all.
The Article analogizes blanket sex offender covenants to their racially restrictive progenitors, arguing that both types of covenants are based on unsubstantiated fears that one population would sexually terrorize another. The modern-day fear is that convicted sex offenders will sexually prey upon children whereas the underlying fear in the era of racial segregation was that black men, this country's original sexual predators, would sexually prey upon infantilized white women. Subsequently, this Article looks to the sordid history of racial segregation for lessons and solutions to the modern-day problem of convicted sex offenders. Finally, it asks whether the burgeoning phenomenon of sex offender covenants foretells the rise of similar private restraints based on sexual orientation.

By the way, here is another post on this issue, one which contains a link to an actual covenant restricting sex offenders from occupancy in a residential neighborhood.

Next Week

For next class we will finish up Adverse Possession and start covenants.

Please read:  Casebook p. 617-628

Don't forget to read the relevant Hornbook sections, because they are very helpful.

Hard Cases Make Bad Law--The Temptation of the Judiciary

Here is the quote from Judge Bork that I mentioned in class last week concerning the struggle between the rule of law and rule by unelected men or women:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Weekend Reading: The Automobile and Property as Liberty

                                    Yours Truly Circa 1971With My 1968 Mustang




Great article by Michael Medved in the Wall Street Journal about how the automobile has become an instrument of individual liberty. Here is a link.

And here is a prime excerpt:

Al Gore and his acolytes equate the internal-combustion engine with climate change, overconsumption and environmental devastation, and the mayors of trendy towns like Seattle and Portland have declared war on the automobile as the enemy of civilized values. For enlightened souls of the "Millennial Generation," cars have become surprisingly uncool—riding light rail, bicycles or even buses is a healthier, more politically correct alternative.

It should come as little surprise then that conservatives—happily tuned to talk radio while they drive—remain the great defenders of the automobile. Cars appeal powerfully to one of the most important conservative values: individual freedom. Straphangers in public conveyances can only travel in groups, moving along with hordes of strangers according to schedules imposed by others. Bicyclists, free as they may be, are clearly limited by distance and time constraints. Once you get into a car, however, you go wherever you want, whenever you want, subject only to your ability to put gas in the tank.

Those who relish that sense of freedom, and make the requisite sacrifices to enjoy it, will quite naturally ride to and from work in splendid isolation. Sure, people on the right of a certain age may prove more likely to expend emotion in saying farewell to one specific car, but we will never go along with the idea of saying goodbye to the automobile.

Pound Lecture

UPDATE

Contact Dean Pierce if you are interested in having lunch with Prof. Levinson after he gives his Pound Lecture. Sandy is one of the most interesting people I have ever met. He has a new idea every minute! I think you will enjoy this opportunity.



Greetings from sunny but chilly Jascksonville Beach.

I just wanted to emphasize the announcement that went out today from the Dean's Office:

As you plan your week, please plan to join us on Thursday at noon in Hamann Auditorium for the Pound Lecture, "Is Government by ‘Reflection and Choice’ a One-Time Experience?" by Professor Sanford Levinson. In his lecture, Levinson will discuss Alexander Hamilton's emphasis in Federalist #1 on the opportunity of Americans to engage in unfettered “reflection and choice” about the system of government they wish to live under.  An obvious question is what meaning his argument has for us in 2013, as distinguished from the audience to which he was writing in “real time.”  Do we today wish to engage in genuine “reflection and choice” about our governmental institutions?  In answering this question, it is interesting to compare the United States and American state constitutions (very much including Nebraska’s) with regard to the opportunity and actuality of such “reflection and choice.”

We are very fortunate to have someone of Professor Levinson's stature join us. Please help us make him feel welcome by attending his lecture this Thursday.

Sandy is a friend of mine and a very interesting and provocative constitutional law scholar. You owe it to yourselves to attend this Lecture.

Just FYI--Recent Prisoner RLUIPA Case

This is just for those who may be interested in prisoner rights issues. Here is a recent post from the ReligionClause blog on a recent decision.

Friday, February 22, 2013

Split 5th Circuit Denies En Banc Review In Prisoner Kosher Food Case

By a vote of 8-7, the U.S. 5th Circuit Court of Appeals in Moussazadeh v.Texas Department of Criminal Justice, (5th Cir., Feb. 20, 2013), denied en banc review to the Texas prison system which had refused to fully accommodate a Jewish prisoner's request for kosher food.  A 3-judge panel, in a 2-1 decision, held that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. The panel remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means. (See prior posting.) Judge Jolly wrote a dissent to the denial of en banc review, warning that "we should not be blind to the misuse of RLUIPA in the prison setting." He explained:

this appeal involves the Texas Department of Criminal Justice’s (“TDCJ”) efforts to accommodate the religious practice of keeping kosher of roughly 900 Jewish prisoners among an inmate population greater than 140,000; TDCJ’s establishment of a “Jewish prison unit” with a kosher kitchen; a single Jewish prisoner, Moussazadeh, whose demands were thus accommodated, even though they were not required to be by any court decision; major disciplinary infractions – committed by Moussazadeh – that required his transfer to a more secure prison that did not have a kosher kitchen but nonetheless offered vegetarian and non-pork options and where pre-packaged kosher food in the more secure prison’s commissary was available for purchase; and, finally, the demands of Moussazadeh to be served kosher food, necessarily prepared by a kosher kitchen at the secured facility, even when he later had the option of being transferred back to the Jewish prison....

Assigned Reading For Thursday's Class

Here is an article about practicing under RLUIPA. Please go to the link and read this short article:



Link

"Asset Forfeiture Abuse"

Here is an item from the PropertyProf blog thatdiscusses an issue that recently came up in class:

Asset Forfeiture Abuse

From Volokh: John Ross of Reason has a nice article outlining the problem of asset forfeiture abuse, as illustrated by the scandalous practices in the nation’s capital:

Jerrie Brathwaite was not in her car when Washington, D.C. police seized it in January 2012. She had lent her 2000 Nissan Maxima to a friend, and that friend was pulled over, searched, and found to be in possession of drugs. A year later, Braithwaite—who has never been charged with a crime—still doesn’t have her car back, and no one from the Metropolitan Police Department (MPD) will return her calls.

Brathwaite, 33, is knee-deep in the murky world of civil asset forfeiture, where confiscated cars, cash, and other property disappear into police coffers, and where legal recourse for owners is confusing, slow, and expensive. Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt....

Brathwaite’s situation—and the MPD’s behavior—are not uncommon. Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit.

Ilya Somin has previously covered this topic here.
Steve Clowney

SCOTUS to Hear Takings Case This Week

Here is a summary from the Environmental Law Prof Blog:

SCOTUS Grants Cert in Takings Case (Koontz v. St. John's)

Yesterday I noted that the U.S. Supreme Court was set to consider a cert petition in the “exaction” takings case of Koontz v. St. John’s River Water Management District.  Today, the Court granted that petition, which the Pacific Legal Foundation had filed on behalf of Coy Koontz this past spring. 
The Koontz case raises two important questions: (1) whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands; and (2) whether the Nollan/Dolan test is applicable at the point in time when an exaction is merely proposed.  Drawing from several of my earlier posts on Koontz (available here and here), below I will attempt to provide a primer on the facts and the issues at stake.
-----
Local governments routinely attach conditions, or “exactions,” to development permits in an effort to address the environmental and infrastructural impacts of individual projects. However, presumably to protect landowners from exactions that are either unrelated or disproportionate to the problems caused by their proposed development, the U.S. Supreme Court curtailed the exercise of this power in its conveniently rhyming Nollan and Dolan decisions by establishing a constitutional takings framework unique to exaction disputes. Under this peculiar framework, it is the government—as the defendant— who has the burden of proving that the exaction bears both an “essential nexus” to and “rough proportionality” with the development’s impacts.
Here, Mr. Koontz hoped to construct a shopping mall on his 14.2-acre lot, and sought permission from the Water Management District to dredge and fill wetlands within that lot that were part of a designated riparian habitat protection zone. While the Water Management District apparently could have exercised its authority to deny this request, it instead identified several possible exactions that, if accepted by Koontz, could allow for the development to proceed. Koontz, however, refused these proposals, and the government ultimately denied the development request outright.  At the appellate level, Koontz prevailed on the theory that the Nollan/Dolan test (1) applies to exactions beyond those that require public occupation of private lands, and (2) is applicable at the point in time when an exaction is merely proposed.
The Florida Supreme Court reversed.  On the first issue, the court sided with a considerable majority of the many state and lower federal courts that have addressed the question of whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands by answering this question in the negative.  Still, select courts have answered the question in the affirmative, even in the face of arguably contrary dictum in the U.S. Supreme Court’s unanimous opinion in Lingle v. Chevron in 2005.  
The second issue seemingly has not been addressed in the lower courts at near the same depth as the first.  Nearly all of the many lower court applications of the Nollan/Dolan test have addressed final permit approvals, leaving the Florida Supreme Court with few cases on which to draw. Indeed, prior to Koontz, it appears that in only three instances—one federal district court opinion (William J. Jones Insurance Trust v. City of Fort Smith, 731 F. Supp. 912 (W.D. Ark. 1990)), one federal circuit court opinion (Goss v. City of Little Rock, 151 F.3d 861 (8th Cir. 1998)), and in a decade-old dissent from a denial of certiorari authored by Justice Scalia and joined by Justices Kennedy and Thomas (Lambert v. City & Cnty. of San Francisco, 120 S. Ct. 1549 (2000))—did members of the judiciary assert that a proposed exaction could, in and of itself, implicate the Takings Clause. [There arguably may be select other cases, such as City of Carrollton v. RIHR, Inc. 308 S.W.3d 444 (Tex. App. Dallas 2010), that fit the bill, as well.]  Across these cases, the opinions provide thin and contradictory guidance on the complex questions surrounding whether such a novel claim presents a legitimate takings issue.
The Florida Supreme Court ultimately decided in Koontz that proposed exactions are not subject to the Nollan/Dolan test.  I found it somewhat surprising that the Court did little to confront the rationale set out in any of the few preceding cases on the topic, even though, of course, none were binding upon it.  And it was even more surprising that the Court dedicated only two pages of its opinion to this imposed-versus-proposed issue, and provided little justification for its conclusion. The Court said only that applying the Nollan/Dolan test to proposed exactions would prompt local governments to issue more outright denials “rather than risk the crushing costs of litigation.”
One might contend that applying the same tests to all conceivable exactions, whether they are proposed prior to an outright permit denial or imposed in a final development approval, makes sense. Otherwise, this argument might suggest, property owners would be beholden to the government’s extortionate exaction propositions, lest they side with the empty alternative of an absolute development prohibition. There is an instinctive appeal to the argument (which presumably must be grounded in the quite murky jurisprudence surrounding the “unconstitutional conditions” doctrine) that the denial of an application based on refusal to comply with an exaction demanded by the government is indistinct from a permit conditioned on that exaction.  In a brief post on The Volokh Conspiracy this afternoon, Ilya Somin (George Mason) offers support for this type of approach.
However, there are at least three reasons to suggest that the above approach is inapt.  First, where a proposed exaction is refused or withdrawn, it seems that no property interest has been "taken" from the applicant that can be protected by the Takings Clause. Second, judicial speculation on hypothetical exactions and their hypothetical economic impacts poses a wholly unmanageable system that could require courts to review countless cases that do not present actual controversies (and, in the process, further complicate the line separating due process and takings review). Third, and arguably most importantly as a matter of legal policy, burdening governmental entities with possible takings liability for statements made during pre-decisional negotiation sessions will place a chilling effect on regulator-landowner coordination.
I expound on the above ideas in this pre-Florida-Supreme-Court article.  In addition, Mark Fenster (Florida) authored a very interesting post-Florida-Supreme-Court essay on the topic.  Please stay tuned to the Environmental Law Professors Blog for updates on this latest takings case headed to the U.S. Supreme Court.

Recent Religious Land Use Litigation

From ReligionClause blog:

Catholic Soup Kitchen Files RLUIPA Challenge To Denial of Permit To Operate

The Day reports that on Friday, the Catholic Diocese of Norwich, Connecticut filed suit in federal district court challenging the decision by the Norwich city planning commission not to extend a temporary permit allowing the St. Vincent de Paul Place soup kitchen to continue to operate in a former Catholic school building. Neighbors had complained of trespassing, foul language and litter by soup kitchen patrons.  The Diocese invokes the Religious Land Use and Institutionalized Persons Act, saying that it has been treated differently than other similar facilities, both religious and non-religious.

We will be discussing RLUIPA in a few weeks.

Mid-Year Exam Results

      Katie Duncan and our next-door neighbor, Buffy the Buffalo



Here is the breakdown for the Midyear Exercise:

5 Students scored 100 points (bravo!)

13 Students scored 96 points

4 Students scored 92 points

8 Students scored 88 points

9 Students scored 84 points

4 Students scored 80 points

4 Students scored 76 points

6 Students scored 72 points

2 Students scored 68 points

3 Students scored 64 points

1 Student scored 56 points

2 Students scored 52 Points

3 Students scored 48 points

1 Student scored 36 points

2 Students scored 32 Points

The test median was 84 points

The average score was 80.04

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.

Also, please ignore the "quartile" rankings that the Law College will provide pursuant to a new faculty rule. I consider these quartiles arbitrary at this point in the course, because I simply don't have enough data to make any judgment about your relative ranking in the class. I divided the scores into quartiles only because I was required to do so.

I am quite pleased with the performance of the class as a whole.

I hope you have a great Spring Semester!

Are Promises "to Kiss your a--" Legally Enforceable

Some winter break legal fun!

Here is a great post from the Volokh blog about this importamnt legal issue:

Motion to Kiss My Ass III

Eugene Volokh • December 27, 2012 5:04 pm

For the first, see Washington v. Alaiimo. For the second, see State v. Law. For the latest, see this quote from champion boxer Juan Manuel Marquez, as reported in BoxingScene.com (though I admit that this likely won’t get to court):

[Trainer Freddie] Roach told me if I would would come out clean in the anti-doping tests, he would kiss my ass. The Nevada Commission has announced that both Pacquiao and I were negative for doping. That means Roach has to kiss my ass, and then some. He openly said that I had doped, and now he has to pay the consequences.

Rob Green (Abnormal Use) explains why a court would not indeed order Roach to kiss Marquez’s ass.

Be sure to follow that link to Rob Green's careful analysis of the enforceability of such promises.

Q & A Session Moved to Courtroom

Same time, different place.

Thursday 11 AM in the Courtroom

Q & A Session Thursday at 11 AM

                           Hannah Duncan as Clara in 2011 Nutcracker at the Lied





As promised, I will show up tomorrow in Room 113 at 11 AM for an optional Q & A session.

See you then,

Vegetarian Thanksgiving

At my house, we have smoked turkey, of course, but we also serve a wonderful old Irish dish called Kilcallian. (kill-cal-yun)

It's easy to make. Peel the carrots and turnips (60% carrots, 40% turnips) , boil and mash them together with lots of butter, salt and pepper. And enjoy a little bit of Ireland! Recipe courtesy me granma, the late Margaret McCabe.

Class Schedule

As we have discussed, the class schedule is set up with a few extra minutes each week to allow for two classes to be cancelled without the need for a make-up.

Those two pre-scheduled cancellations will take place next week.

I will be busy with preparing and presenting a CLE at the Nebraska State Bar Annual Meeting next week so the follwing classes will be cancelled:

1. Thursday October 25
2. Friday October 26.

Class Schedule

There will be no class on Thursday October 11.

That is our first of three scheduled class cancellations.

In lieu of regular class, we will be attending the Human Trafficking program at Noon on the 11th.

October 11--Global and Local Perspective on Human Trafficking

In lieu of a make-up class for conflicts that are coming in a few weeks, I am assigning you to attend the Human Trafficking conference: October 11 @ Noon in the Auditorium.

People are not property, and human trafficking is a truly global issue of human rights. Each person owns his or her own body, and I think it is very important to learn about the issues that will be discussed at this conference.

It won't be on the exam, but it is very important that we be aware of this issue.

Fderalist Society Has an Interesting Speaker Thursday

WHEN:    Thursday, Sep. 27th at 12:10pm

WHERE:   Room 109

WHO:      Christina Hoff Sommers - "The War Against Boys: What is Right and Wrong with Feminism"

 

Ms. Sommers has appeared on numerous tv programs including 60 Minutes, Oprah Winfrey Show, and The Daily Show. Her book "The War Against Boys," was a New York Times "Notable Book of the Year." She is a resident scholar at the American Enterprise Institute.

WHY:      FREE Mexican Food catered by Tico's AND drinks provided - no need to bring your own!!

PLEASE RSVP BY NOON ON WEDNESDAY SEP. 26th to danielle.myers88@huskers.unl.edu!!

Sponsored by the Federalist Society

It Came Out of the Sky

 \

 I can't get away from those finders cases!

This is not a hypothetical. It actually happened to me.

Last night, when I was giving my daughter and two of her friends a ride home from the horse barn where our horse, Easy's Delight, is boarded, we saw a flaming, metallic object fall out of the sky and land in a farmer's field near my home.

I did not go dig it up and take it to a new and used meteorite store to sell. But I thought about Property class! And how property is ubiquitous!

Have a great weekend.

"How to Read A Legal Opinion: A Guide for New Law Students:"

My wife's least favorite (and my favorite) rental house on the beach at Sandbridge




Here is a link to Prof. Orin Kerr's helpful essay for 1Ls. Just something you may find helpful early in your legal career.

Assignment For First Class

For our first class, be prepared to discuss the first assignment on the list of Assignments for Fall 2012 immediately below.

Property in Harry Potter

Marc Roark has a blog post here.

And here is an excerpt:

One of the many projects I have been working on this summer is writing a paper on the Property theory present in the Harry Potter novels (titled When Chattels Choose).  One of the truly interesting things about property represented in Harry Potter is the ambiguous relationship of ownership to the property. In the legal world, we see ambiguity in property most visually resolved in torts landscape — nuisance as the ever developing tool of property allocation.   We could even argue (as I will later this year) that nuisance theory is quite akin to intellectual property disputes.
For now, lets turn to how property disputes are resolved in the Harry Potter world.  Consider all the property that is described in the magical world — just about every piece of property may be reoriented to new ownership, even without the express consent of the “owner” — a choice of the chattel, we might say that alleviates the need for disputes. Let me offer just a few examples:

•  After Sirius Black dies and Dumbledore informs Harry that he is the heir of 12 Grimmauld Place, Dumbledore considers it questionable whether Harry is actually entitled to Grimmauld place and asks Harry to perform a simple test to determine his legitimacy.   The property orients itself to its proper frame of ownership, regardless of the will of the previous owner and notwithstanding the acts or non-acts by the party actually entitled to ownership.  See Harry Potter and the Half Blood Prince
• Wands “choose” the master.   And wands may be reoriented if “captured” properly.  Consider the distinction between Harry disarming Draco Malfoy to become the master of all wands that Draco Malfoy was master of (including the Elder Wand) and Voldemort killing Severus Snape expecting to become master of the Elder Wand thereby.   The wand simply chose whose conquest mattered more for the purposes of its loyalty.  See Harry Potter and the Deathly Hallows 
• The Sword of Gryffindor is described as cultural property by two different characters. First, the Minister of Magic Scrimgeour, after informing Harry that he was given the Sword as a part of Dumbledore’s will, later informs him that the sword is not susceptible of ownership.  Rather, the sword is cultural property which may present itself to any Gryffindor.   Interestingly, the Goblin Griphook describes the sword as cultural property, though not that belonging to Gryffindors, but belonging to Goblins, since they made the sword.  The sword apparently chooses the cultural affinity of its ownership by choosing Harry and then later choosing Neville Longbottom.  See Harry Potter and the Deathly Hallows
• Snitches (the golden balls used in quidditch games are said to have “flesh memories. As Scrimgeour says to Harry: “ A snitch is not touched by bare skin before it is released, not even by the maker, who wears gloves.   It carries an enchantment by which it can identify the first human to lay hands on it, in case of a disputed capture.  This snitch” — he held up the tiny golden ball – “will remember your touch, Potter.” Harry Potter and the Deathly Hallows

There are no doubt others, but what seems clear is that property has the capacity of choice in the world of Harry Potter.  That impartial choice acts as the great equalizer that by forcing “fair” redistribution of property according to certain characteristics and with certain presumptions of fairness.  First, it seems the the magical world is not adverse to basic rules of construction that equate to fairness.  First capture of the snitch equates to fleshly connection upon first capture; capturing a wand fair and square gives one rights in the wand (and others apparently); and property may be passed from one wizard to another according to expectations that they have.  These rules are mirror images of our world of property allocation with the exception that magic alleviates the need for dispute resolution — the property simply knows to whom it should belong.  Unlike a fox or whale, which may be fairly disputed who began the pursuit, who caused the capture, or whether the party who secured the bounty did so fairly, the magical world’s fairness quality is determined not by ambiguity, but by clearly choosing chattels.
What caught my attention, though in thinking through this scheme is the irony of property choice theory that ceases to exist outside Rowling’s magical world.  Again, consider the most obvious form of cultural property — the Sword of Gryffindor.   One could draw an analogy to Rowling’s own work as being cultural property — surely Harry Potter is very much with all of us as it was with Rowling for so long.

Interesting Abandoned (or not abandoned) Property Case

From Yahoo News (link)

Woman who lost Ark. lotto ticket entitled to $1M

  SEARCY, Ark. (AP) — An Arkansas woman who cashed a $1 million lottery ticket may have to give up the winnings to a woman who threw away the ticket after she bought it, according to a judge's ruling Tuesday.

The judge decided that Sharon Duncan was entitled to the prize money, not Sharon Jones, who claimed the prize money after she took the ticket from a trash can of discarded lottery tickets at a convenience store in Beebe, a city about 40 miles northeast of Little Rock.

Jones' attorney, James Simpson, said he plans to appeal. Jones had testified that she already spent some of the money on a new truck and cash gifts to her children.

Simpson noted that Duncan testified she threw away the ticket after the read-out on a ticket scanner said, "Sorry. Not a winner." The attorney argued that people shouldn't be allowed to throw items away and then say, "'ooh, I want to un-abandon it.'"

"We'd have garage-sale law all over the place," he said. "It became trash when someone threw it away."

White County judge Thomas Hughes, however, said Jones never met the burden of proof that Duncan abandoned her right to claim $1 million.

"The $1 million was never found money," Hughes said.
Earlier Tuesday, Jones testified that she gathered a handful of discarded tickets from the trash can — as she had done many times before — and said there was no sign alerting customers not to take tickets.

That contradicted Super 1 Stop store manager Lisa Petriches' earlier testimony that she had taped a sign that read "Do not take" on the can. But a former store clerk testified that Petriches posted the sign only after Jones claimed the prize.

Petriches brought the lawsuit against Jones, and Duncan joined it after the judge said at a January hearing that she may be the true owner of the ticket. Hughes ruled that Petriches and the store's owner, Louie Dajani — whose corporation, Summer One LLC, joined the suit — weren't entitled to anything.

The judge instructed the winning side to write the judgment for his signature, and it will become official once Hughes signs it. Jones' attorneys will then have 30 days to file an appeal.

Hughes found that the evidence weighed in Duncan's favor that she bought the winning ticket, even though lottery records and store security video didn't synch up to the precise timing of the purchase.

Arkansas Lottery Security Chief Lance Huey testified that he investigated the circumstances of the ticket falling into Jones' hands. He said the lottery was satisfied with the investigation and awarded the prize.

Duncan's attorney, James "Red" Morgan, argued that she simply made a mistake by throwing away a $1 million ticket and that the only right she willingly parted with was to enter the ticket for the possibility of a secondary prize.

 

Q & A Session: Friday April 20

Today's class is our last official class. However, as promised, I will show up next Friday, April 20, for Q & A sessions with each section. Same time, same place as our regular class sessions.

"Aesthetic Nuisance in the News"

Here is a fun post from the PropertyProf blog:

Aesthetic Nuisance in the News

You just have to read a news story that begins like this:

They say a man's home is his castle, but does that include the right to turn it into an eyesore?

On a quiet side street south of Daytona Beach, Robert Hodges' corner house is painted randomly with purple, yellow, orange, green and pink. A toilet and rusting bike stand by a tree, old pieces of a wood deck are scattered and a large sand mound is decorated with skis, golf clubs, plastic ducks and Christmas ornaments. Criss-crossing the front yard are several clotheslines featuring boxers, a pair of hot-pink feathery skivvies and colorful extra-large bras.

"Oh, yes, it's beautiful!" declares Hodges, a snowbird retiree from Memphis, Tenn. who prefers the moniker Prince Mongo. "It's absolutely gorgeous."

And it's his own personal protest.

Upset at complaints by neighbors over a wood deck that prompted county officials to cite him for a code violation, he transformed a $300,000 beachside home into a wildly provocative property that stands out as much as he does.

Link

Here is another excerpt from the newspaper article linked to above:

Upset at complaints by neighbors over a wood deck that prompted county officials to cite him for a code violation, he transformed a $300,000 beachside home into a wildly provocative property that stands out as much as he does.

Prince Mongo, who eagerly tells you he is 333 and from the planet Zambodia, joins the colorful cast of other Central Florida characters who used their homes as a canvas for protest, to the point of becoming neighborhood nuisances.

The late Grover Walker painted his Winter Park home a wild red, white and blue, with massive slogans and a giant American flag flying upside-down on a 90-foot flagpole. The family hosted concerts and rallies, with loudspeakers, sirens and military surplus spotlights to protest a psychiatric diagnosis that barred him from receiving veterans benefits. Seminole County's "junkman," Alan Wayne Davis, went to prison rather than removing antique aircraft parts and a giant sculpture of a human buttocks from his yard near Altamonte Springs.

Like the others, Prince Mongo is not going to back down from his fight to do with his property as he pleases.

"I'm not going to be pushed over the cliff. I have my rights, and they're being taken from me."

He has fought this code-enforcement battle, too, at his homes in Memphis, Tenn., where he is a household name as a perennial candidate for mayor. He once owned a popular pizza joint, and then a nightclub, Prince Mongo's Planet, in downtown Memphis that ran into trouble with authorities for serving liquor to minors.

But his main claim to fame was his Memphis front yards, piled with toilet bowls, mannequin heads, lampshades and traffic cones. He fought code-enforcement battles in the 1970s and in 2002, hiring highly paid lawyers to argue his case.

He even once riled neighbors near his $2 million Fort Lauderdale home, for code violations over his outdoor art, but the scuffle subsided after the complainant moved away.

He moved to the Volusia County house, south of Daytona Beach and titled under the name of his nephew, Michael Hodges, without drawing any attention.

The house was originally just like his neighbors', with white walls and a perfect lawn. But he built an outdoor deck that jutted over the county's setback requirements and was forced to take it down.

That triggered the Prince Mongo reaction: the broken deck pieces, the clotheslines, the outdoor toilet. He greets his guests barefoot, wearing a green coat and a rubber chicken. He addresses people as spirits and says the clotheslines are sending messages to Zambodia. He calls dandelions taking over his lawn his precious "buttercups."

None of his neighbors could be reached for comment, but their letters to county officials express disgust and fear. "We are all in danger of becoming victims of his irrational behavior," wrote one of his neighbors. "Wherever he's lived, he's spit in the face of everything decent."

Yet home-grown protesters like Hodges embody the rebellious spirit that helped found our nation, said Frank Farley, a psychologist at Temple University in Philadelphia and former president of the American Psychological Association.

"It's been a strong thread throughout the American story, of risk-taking, pushing the envelope, pushing the limits," Farley said. "You hear the concerns these days of government as too extensive, too intrusive.

"I could see that obviously people in his neighborhood would view it as obnoxious, and they have their concern about their money and land values.

"But maybe there is something in his message that is worth discussing, [about] these communities of ticky-tacky houses, the aura of conformity and manicured lawns."

Law professor Brad Jacob said that property rights, however, extend only so far.

"We live in communities, and our local governments have the clear authority to put restrictions on our land for the common good, for the safety, welfare and benefit of all," said Jacob, who teaches at Regent University in Virginia Beach, Va. "He has to live under the laws that everyone else does."

Attempts to enforce laws have only perpetuated the fight. Hodges has been fined once for having a junkyard and now faces another batch of code violations. But county officials can't fine him for the exterior paint job or the clotheslines because there are no rules or laws restricting them.

Volusia County Councilman Josh Wagner hopes to mediate the neighborhood battle and meet with Hodges and the neighbors to resolve the matter.

"He's not dumb. He knows the law and knows that he can't be cited for hanging 100 pieces of women's underwear, so he's pushing the limits of that," Wagner said. "But the neighbors are afraid of him."

The man at the center of the storm merely says: "I just want to be left alone."

Supreme Court Grants Cert in Takings Case

From the PropertyProf blog:

1. The Supreme Court granted cert in Arkansas Game & Fish Commission v. United States, which asks whether a temporary flooding can constitute a taking under the Fifth Amendment.

2. The issue in the case is whether government actions that cause temporary flooding of property constitute a taking. The Federal Circuit said "no."  It held that flooding can only effect a taking if it amounts to “an actual permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.”  The experts at Scotusblog have put up a list of all the briefs.  And, over at Volokh, Jonathan Adler has called the case "A Takings Claim that Even Environmentalists Could Love."

Possible New Takings Case

From the PropertyProf blog:

Will the Supreme Court Kill Rent Control?, Ctd.

Over that Volokh, Ilya Somin follows up on a potentially important takings case that the Supreme Court may decide to hear:

When I first heard about this case, my reaction was that it was probably precluded by the Supreme Court’s 1992 decision in Yee v. Escondido, which ruled that a California statute imposing rent control on mobile home parks was not a taking, even though state law allowed tenants to renew the rent-controlled leases indefinitely even against the will of the owners. I am no fan of the Yee decision, but the Court is unlikely to overrule it in the near future.

However, there is a crucial difference between Harmon’s case and Yee. In the latter, the Court emphasized that there was no permanent physical occupation of the owners’ property because “the Mobilehome Residency Law provides that a park owner who wishes to change the use of his land may evict his tenants” so long as he then uses the property for something other than a mobile home park. By contrast, as Root describes, the New York City rent control law does not allow Harmon and other landlords to evict their tenants even if they do wish to use the property for something other than rental housing. Effectively, therefore, this is a government-imposed permanent physical occupation of property.

Lane Lecture--Today at 12:10 in Auditorium

Message from Dean Poser:

We are honored and lucky today to have Stanford Law Professor Pam Karlan at the Law College to present the Lane Lecture at 12:10 in the Hamann Auditorium 

Professor Karlan is an eminent scholar of constitutional law and the co-director of Stanford's Supreme Court Litigation Clinic.  She has at times been talked about as a possible appointee to the United States Supreme Court. Her lecture is entitled Keeping Faith with the Constitution.

I urge you to take this opportunity to hear what is sure to be an excellent and thought-provoking lecture by such an accomplished and well known speaker.

Susan Poser

Please take advantage of this great opportunity!

New RLUIPA Case Filed

From ReligionClause Blog:

Islamic School Sues Over Rezoning Denial

Ann Arbor.com reports that the Michigan Islamic Academy has filed a federal lawsuit against the Pittsfield Township, Michigan Board of Trustees challenging their denial of zoning changes needed for the Academy to build a new school to replace its current overcrowded facility.  The lawsuit, alleging violations of RLUIPA as well as the 1st and 14th Amendments, claims that the township used fabricated reasons to deny the school's rezoning request. It charges religious discrimination that imposes a substantial burden on the free exercise rights of the school and its students.

RLUIPA at the Cutting Edge of the Law

Here is a post from the ReligionClause blog:

ADL Has Become Leading Defender of Mosque Construction Projects

According to a report yesterday by CNN, the Anti-Defamation League over the last few months has become a leading advocate supporting mosque construction projects around the country against local opposition.  Generally it has invoked RLUIPA to support mosque zoning applications.  The role has surprised some because of the high profile, and much criticized, opposition by the ADL last July to the proposed construction of a mosque and Islamic Center near Ground Zero in New York City. (See prior posting.)  However last September the ADL launched the Interfaith Coalition on Mosques. Last week the ADL wrote a letter, supported by the Coalition, to the mayor and city council of Temecula, California supporting construction of a 25,000 square foot mosque project there that is to be voted on today. The Coalition, however, is itself controversial. Last Friday, the president of the Southern Baptist Convention's Ethics and Religious Liberty Committee, Richard Land, withdrew from the interfaith Coalition, explaining: “While many Southern Baptists share my deep commitment to religious freedom and the right of Muslims to have places of worship, they also feel that a Southern Baptist denominational leader filing suit to allow individual mosques to be built is 'a bridge too far'." The Christian Post reports further on Land's withdrawal.

RLUIPA Handout Aailable

For those of you who did not pick up a copy of the RLUIPA handout yesterday in class, copies are available in the handout racks near the South side faculty suite.

Great "Lawyering" Advice At PropertyProf Blog

Link And here is the post:

Lawyering and Law's Limits

One of the things I try to teach students is that the job of "lawyering" often requires knowing the practical limitations of the rules and theories we discuss. For example, it's one thing to know that the law gives certain rights to your client; it's a different thing to understand how enforcing those rights will affect your client's overall interests. In the world of property law, this issue comes up with some frequency. Take land use practice, for instance, where advancing your developer client's legal rights too forcefully may lead to resentment or backlash from the public officials (or their constituents) with whom the client likely needs to maintain good working relations.
Over at Concurring Opinions, Gerard Magliocca (Indiana - Indianapolis) applies this idea to the "Who Dat" controversy that I mentioned here. Noting the public outrage over the NFL's claims to the phrase, he writes that intellectual property rights often "cannot be enforced to their limits because that would alienate potential customers." A recent incident involving Bruce Springsteen seems to bear this out. The Boss apparently has filed a copyright infringement suit against a New York bar that allowed a band to play his songs but never paid ASCAP a licensing fee for the privilege. Whatever the legal merits of the suit, some of the comments to the story suggest that there may be a public relations cost for pursuing it. Because I think it's important for students to realize this tension early in their careers, I like to provide them with these types of real world examples.
Mike Kent

Constitution Changes if Common Usage Changes

I enjoyed today's discussion about laws that "evolve" as common usage of language changes.

Let's see how this might work.

Suppose in 2011 a constitutional amendment is ratified providing that "the right of gay marriage will not be abridged." The original understanding of this amendment in 2011 is that it protects the right of same-sex couples to marry.

But now suppose 40 or 50 years pass and the common usage of the word "gay" has changed. In other words, common usage of the word gay in 2061 is that the word means happy or carefree, not same-sex sexual orientation.

Does this mean that same-sex marriage is no longer protected by the constitution, because the meaning of the word "gay" has "evolved?"

Can persons lose constitutional rights, not because the constitution is amended to repeal those rights, but because the common usage of language contained in the constitution changes over time?

Suppose common attitudes about same-sex marriage become less accepting over time. Should the Court decide that, since the right to gay marriage has "become obsolete in the evolved society," the express constitutional right should no longer be recognized?

Or should the right to "gay marriage" be interpreted, in accordance with its original understanding at the time of ratification (i.e. as of 2011), to protect the right of same-sex marriage?

Please feel free to write comments on this post, because I would really like to see your thoughts.

Tomorrow's Class

Thursday January 12, 2012--we will have a joint class (both sections together) that will meet in the Auditorium at 1:00 PM.

We will be watching a documentary on the "Poletown" takings case in which an entire neighborhood was taken and transferred to General Motors for use as a Cadillac factory. The movie may run until a few minutes after 2 PM.

Interesting Property Rights Case Before Supreme Court This Term

Real Estate Blog has the story.

When Zoning Board Closes Down Your Church

From Today's WSJ, an issue we will be discussing next semester:

What counts as a church? Chuck and Stephanie Fromm recently found out.
After hosting several periodic Bible studies for up to 50 people in their home in San Juan Capistrano, Calif., the Fromms were fined $300 for violating a city ordinance that prohibits groups of three or more people from gathering without a permit. The couple appealed and city officials agreed last month to reimburse them and re-examine the ordinance, but the case created a stir in religious circles.
"It struck a deep nerve. Bible studies in people's homes have been a long part of American culture and heritage," says Brad Dacus of the Pacific Research Institute, which took on the Fromms' case. "We're concerned that other cities will try to get away with the same thing."
Megachurches often dominate the news, but most religious institutions in America are small. The median church size is 75 regular participants on Sunday mornings, according to the 2009 National Congregations Study, which also found that about 60% of churches have an attendance between seven and 99 people. Just 0.4% of churches have more than 2,000 attendees, falling into the megachurch category.
Even those churches that eventually grow to a few hundred or a few thousand start small. Many churches originate as a Bible study in someone's home before renting or buying more formal location. Saddleback Church began in 1979 as a small Bible study with one other family in Rick Warren's condo. Seattle's Mars Hill Church began in 1996 in the apartment of Mark and Grace Driscoll.
Megachurches have actually spurred more growth in small home gatherings, which include not only Bible studies but groups devoted to topics such as marriage support, parenting and personal finance. Half of megachurches used such small groups in 2000, while 80% use them now, says Scott Thumma of the Hartford Institute for Religion Research. A recent Lifeway Research study of 7,000 Protestant churches found that on average, half of those in their congregations participated in small groups. "Pastors are asking, 'How do you get people from sitting in rows to sitting in circles?'" says Ed Stetzer, president of LifeWay Research.
But modern zoning laws haven't caught up with this trend. What to do, for example, about the parking congestion caused by a regular gathering of several families for a Bible study? "Zoning laws and the ideas that lie behind them are so outdated that it's going to take some time before they fully grasp the changes of the shape of American religion," says Mr. Thumma.
Zoning issues have affected other small groups. In 2006, a synagogue sued and eventually settled with Hollywood, Fla., after the city initially denied its application for a zoning permit to operate in two residential homes. In 2009, San Diego County officials issued a warning (which they later withdrew) to a couple for hosting a weekly Bible study in their home without a permit. Miles Christi, an international Catholic religious order, challenged a 2007 ticket issued from Northville, Mich., for using a home for private daily masses and Bible studies. The order won on a technicality but its subsequent lawsuit to prevent the issuing of future tickets was dismissed by a federal court earlier this year.
Zoning disputes are often tested under the federal Religious Land Use and Institutionalized Persons Act. The 2000 law requires the government to have compelling interests before restricting any religious group. Religious liberty advocates believe smaller religious groups have struggled to get accommodations when it comes to land-use regulations. Says Mr. Stetzer: "The future of religious liberty is going to be in the area of zoning and not in the area of speech discrimination."
The Fromms of California were cited for not having a conditional use permit to meet in residential areas. But the ordinance language explaining who needs a conditional use permit is so broad it could apply to a group of friends who meet to watch football on Sundays. And to gain such a permit, an applicant could need a site planner, a public hearing and an entitlement planner, which could cost up to $150,000, says Dan Dalton, chair of the American Bar Association's Religious Land Use section.
"Church," he notes, "is more than about Sunday mornings and Wednesday nights, and communities have to recognize that, but some have to go through an onerous process."

No Class Wednesday October 5

I'm heading off to St. Louis next week to speak at SLU and Wash U law schools.

Should Property Be Inheritable and Devisable?

Let's finish up our brief discussion of the law of intestate succession by focusing on the question whether the law should permit property to be inherited upon the death of the owner?

Should the government confiscate a decedent's property upon her death? Why or why not?

What about partial confiscation by a death tax? How much of a death tax? 25%? 50%? 90%?

Tea Party's Constitution

I will be giving a Law School Colloquia Presentation next Wednesday Sept. 28th (at Noon in Room 113) on "The Tea Party's Constitution." This is just a sexy title for a proposal, first made by Prof. Randy Barnett of Georgetown Law, to call a constitutional convention for the purpose of proposing constitutional amendments designed to limit the power of the Federal Government and to increase the powers retained by the States and the People.

This presentation is open to everyone, so if you are interested in discussing the possibility of a constitutional convention please come.

No Class Wednesday Sept. 21

We will use our second (of seven) required class cancellations to cancel class next Wednesday Sepr. 21.

I am speaking at Washburn next week and need a day to get back on top of things here.

The Paper Chase

This is not an assignment, just a suggestion for something fun to do this weekend.

Watch the best movie ever made about law school and law students--The Paper Chase--starring Timothy Bottoms and John Houseman (as Prof. Kingsfield). Link. The clothing and hair styles are dated, but law school, like baseball, never changes. Give it a try on Netflix or Hulu or whatever you use to watch movies.

McMillan v. Iserman

Property owners in a subdivision had the right to amend covenants, even to make them more restrictive, by a three-fourths vote of the property owners.

The property owners amended the restrictions to "prohibit the use of any subdivision lots for a state licensed residential facility" for the mentally handicapped.

The Court says that this is generally okay because property owners took with notice of the fact that the restrictions could be amended under the policy. p. 655

However, amended restrictions may not be applied retroactively:

"Even with the knowledge that deed restrictions can be amended, lot owners have a right to rely on those restrictions in effect at the time they embark on a particular course of action regarding the use of their property, and subsequent amended deed restrictions should not be able to frustrate such action already begun." P. 655-656.

Finally, notice that restrictions designed to prohibit group homes for the mentally handicapped may be "unenforceable on public policy grounds." P. 656

What about a group home for recovering drug addicts or a half-way house for convicted prisoners about to be paroled?

No Class Friday April 1

This is not an April Fools joke!

I need to use the 5th of our 7 class cancellations for this coming Friday.

We will still use the last 2 cancellations to cancel the last week of classes, and I will have an optional Q & A session that last week in lieu of a class in which we cover new material.

An optional Q & A session should help clear up any difficulties some of you may be having just prior to the exam.

No Class Friday March 18

Just a reminder--as I said in class previously, we will be using the 4th of our 7 cancellation days this Friday March 18, the Friday before Spring Break.

Rick Duncan

Ronald Reagan Days

I am using two of our mandatory class cancellations on February 16 and 18 to celebrate Ronald Reagan's 100th birthday!

Just kidding. His birthday is actually on February 6, but I have some family obligations next Wednesday and Friday, so our only class next week will be on Thursday February 17.

Tiny NYC Apartment at $1750 per month

Just for fun!

Here is a link to a NYT piece on how to live large in the big city in 200 square feet. Here is an excerpt:

The fourth-floor apartment, for which she pays $1,750 a month, consists of a single room, just over 200 square feet, with a bed, a desk, a dining table and a couple of swivel chairs.

$1.8 Million Fee for Pro Bono Case

link

Although some critics object to "pro bono" lawyers recovering fees, remember the representation is always free to the client; it is the governmental defendant who is liable for fees if, and only if, it has abused the constitutional rights of the plaintiff. The fees are awarded as a disincentive to governmental lawlessness.

Taxes and Redistribution of Wealth

It is possible to view taxes as a kind of taking. This is particularly true when the tax code is designed to "spread the wealth" (i.e. to take income from some for the purpose of wealth transfer or "social justice"). Here is an interesting post from the blogosphere:

Interesting data from the Tax Prof blog:

Top 1% Pay More Income Tax Than Bottom 90%

The Tax Foundation has published Summary of Latest Federal Individual Income Tax Data:

New data released by the IRS today offers interesting insights into the distributional spread of the federal income tax burden, new analysis by the Tax Foundation shows. The new data shows that the top-earning 25% of taxpayers (AGI over $62,068) earned 67.5% of the nation's income, but they paid more than four out of every five dollars collected by the federal income tax (86%). The top 1% of taxpayers (AGI over $364,657) earned approximately 21.2% of the nation's income (as defined by AGI), yet paid 39.4% of all federal income taxes. That means the top 1% of tax returns paid about the same amount of federal individual income taxes as the bottom 95% of tax returns.

The recent notion of an income tax "cut" for people who pay no income taxes is perhaps the clearest example of tax laws that literally take from Citizen A and give to Citizen B.

Perhaps this is what Ben Franklin warned us against when he said:"When the people find that they can vote themselves money, that will herald the end of the republic."

Should the Takings Clause of the Constitution be interpreted to provide some limits on the power of government to use tax laws to "take" wealth from some classes of taxpayers in order to transfer that wealth to others?

Handout Available

Notice that the handout for the Keystone case, referred to in assignment no. 5, is available in the Handout racks near the South Faculty office suite on the second floor of the library.

For Wednesday, please be prepared to discuss Assignment 3 and 4.

Rick Duncan