RLUIPA: Recent Cases

 We will be studying the Religious Land Use and Institutionalized Persons Act, a modern civil rights law protecting religious land users from restrictive and often discriminatory land use laws. Here are some recent cases from the ReligionClause blog:

Suit Challenges Zoning Refusal For Christian School

On Tuesday, a Christian school in Upper Arlington, Ohio filed suit in federal court claiming violations of RLUIPA, of the 1st and 14th Amendments and of Ohio's constitution.  The case stems from the city's rejection of the school's attempt to apply for zoning approval of a new site on which the school planned to consolidate its four separate campuses. The complaint (full text) in Tree of Life Christian Schools v. City of Upper Arlington, Ohio, (SD OH, filed 1/4/2011), argues that other similar or identical uses-- such as child day care centers and hotels-- are allowed by the city's zoning rules. In its press release announcing the filing of the lawsuit, Alliance Defense Fund said: "A city’s zoning code cannot give preferential treatment to non-religious institutions that function similarly to a Christian school...."

Two New Hampshire Churches File RLUIPA Challenges To Zoning Denials

Today's Nashua (NH) Telegraph reports on two separate RLUIPA zoning lawsuits filed in federal district court in New Hampshire. In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs allege violations of RLUIPA and the state and federal equal protection clauses. They claim that their application for a special exception to locate in a residential area is the only application by a church to have been denied in 15 years. In Goffstown Harvest Christian Church v. Town of Goffstown, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs claim that the town's amendment of its zoning ordinance to prohibit religious, but not non-religious, assemblies in areas zoned industrial violates RLUIPA, and the free exercise clauses and the equal protection clauses of the state and federal constitutions. New personnel on the Zoning Board of Adjustment refused to extend the church's site plan approval because they felt that the zoning changes were intended to encourage taxable industrial uses.

Michigan City Settles RLUIPA Suit, Lets Church Move Into Commercial Area

The Oakland County (MI) Daily Tribune reports that a Michigan federal district court last Friday signed a consent order under which the city of Hazel Park, Michigan settled a RLUIPA zoning lawsuit filed against it by the Salvation Temple that wanted to move into a building, but was denied a permit under an ordinance passed in 2005 that bars religious institutions in areas zoned commercial or industrial. (See prior posting.) Under the agreement, the church will be permitted to move into a building that was used as a banquet hall but has been vacant since 2002.  The church will bring the building up to code and will pay back taxes before the property becomes tax exempt. The building, on a triangular parcel of land near two interstates, was unlikely to find a commercial buyer. City officials say there was no economic benefit in their fighting the lawsuit. The settlement did not rule on the validity of the zoning ordinance which apparently effectively keeps churches out of Hazel Park because there is no residentially zoned property large enough to accommodate a church and required parking.

Hobby Lobby Case--Key Statutory Provisions from RFRA

 42 USC sect 2000bb-1

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). 

(b) Exception Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest

42 USC sect 2000cc-5

(7) Religious exercise

(A) In general

The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

 42 USC sect 2000cc-3

(g) Broad construction

This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.

1 USC 1 (The Dictionary Act)

In determining the meaning of any Act of Congress, unless the context indicates otherwise—

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;

Critics of RLUIPA

A few years ago, I was a guest blogger at ProprtyProf blog. Here is a post I blogged over there:

Permit me to introduce you to RLUIPA's most prolific critic, Prof. Marci Hamilton. In her book, God vs. The Gavel: Religion and the Rule of Law, Prof. Hamilton devotes chapter 4 to "Religious Land Use and Residential Neighborhoods." Here are brief excerpts that give you the flavor of Marci's disdain for RLUIPA: "RLUIPA has turned neighbor against neighbor and is one of the most religiously divisive laws ever enacted in the United States...The churches have an uncanny ability to make standard, fair practices sound inherently prejudiced." I disagree with most of her conclusions about religious liberty, but she raises some interesting issues.

Marci also has some articles that are available online including:

--STRUGGLING WITH CHURCHES AS NEIGHBORS:Land Use Conflicts Between Religious Institutions And Those Who Reside Nearby (link)
---How Congress Undermined the American Dream: The Effect of the Religious Land Use and Institutionalized Persons Act on Residential Neighborhoods (link)
Here is a money excerpt from the American Dream article:

"Currently, homeowners trying to retain the residential character of their neighborhoods are finding RLUIPA an enemy to their dreams. Across the country, cases where religious landowners are seeking to get around residential zoning requirements abound. RLUIPA is the classic siren song, capable of persuading any religious landowner that they need not be good neighbors and that they have "rights" to choose location, size, and use at whim. That siren song has gone platinum as groups like the Becket Fund have funded federal litigation, making the religious landowners' decision to ignore the pleas of their neighbors in favor of federal court easier than ever. (Of course, Congress is largely to blame for such shenanigans because of its ill-advised decision to provide attorneys' fees for lawyers taking on RLUIPA claims.)
In one case, a church seeks to add a fourth story in a residential neighborhood zoned for two stories. In another, a private homeowner asserts the right to hold lengthy prayer meetings that exceed occupancy requirements every weekend. In a third, the church seeks a "small" addition of 30,000 square feet.
In a fourth, a synagogue seeks to convert a piece of property previously used to house a quiet convent, and then a monastery, into a lively complex offering services, education, and a catering hall for hundreds of families. In a fifth case, a quickly constructed 8000 square foot shul is overshadowing its 3000 square foot residential neighbors.
Every one of these projects changes the residential quality of the neighborhood in which it is planned. That is because every one is inconsistent with the character of the neighborhood, and involves a dramatic increase in the intensity of the use of the property, far above normal residential usage. Traffic (both pedestrian and automobile), lighting, setbacks, height, bulk, noise, and parking are all elements that contribute to the degradation of residential character; each project would alter at least one, and often several, of these elements."

Powerful stuff.

Here is more.

The October 8, 2006 New York Times has a lengthy article ("As Exemptions Grow, Religion Outweighs Regulation") on religious exemptions from the Regulatory State that contains an extensive discussion of religious land use and RLUIPA. (Thanks to the Religion Clause blog for the pointer)

By the way, the title of the New York Times article is misleading. RLUIPA and other religious exemptions from restrictive laws advance religious liberty, not religion. This is a basic concept that I try to teach my First Amendment students when studying the Establishment Clause--the EC, as interpreted by the Supreme Court in the Lemon test, forbids laws that advance religion, not laws that advance religious liberty. Notice what a difference it makes to rewrite the title to that NYT article as "As Exemptions Grow, Religious Liberty Outweighs Regulation."

Handouts Available in Handout Racks

The RLUIPA handouts are available in the Handout racks outside the South Faculty suites.

We will get to them next week.

For Friday Jan 27

Make sure you read the Lucas case for our next class (Friday Jan.  27)

6. Lucas (casebook p. 836-849)

Double-header on Thursday Jan. 12

We will be meeting from 12:15 to 2:15 on this Thursday (January 12).

We will watch the documentary on eminent domain (Poletown) and then discuss the "public use" requirement of the Takings Clause.

As Mr. Cub, Ernie Banks liked to say, "let's play two."

Mid-year Exam Results

Here is the breakdown for the Midyear Exercise:

2 Students scored 100 points

3 Students scored 96 points

 

13 Students scored 92 points

5 Students scored 88 points

6 Students scored 84 points

7 Students scored 80 points

4 Students scored 76 points

4 Students scored 72 points

4 Students scored 68 points

3 Students scored 64

1 Student scored 60 points

 

6 Students scored 56 points

2 Students scored 52 Points
 

1 Student scored 48 Points

1 Student scored 32 points

1 Student scored 28 points

1 Student scored 24 points
 

The test median was 80 points.  Pay no attention to the arbitrary "quartiles."  They are meaningless.

Q & A Session--Saturday December 10 at 1 PM

I have scheduled a Q & A session, before the mid-year exam, on Saturday December 10 at 1 PM in Room 113.

I hope this time works well for most of you.

My Sincere and Abject Apologies

I showed up today (Friday December 2) for an optional class review session. I showed up at 2:25 (thinking I was 10 minutes early for the session) only to discover that, since today is Friday rather than Thursday, I should have been there at 1:15.

I can't blame old age for this lapse on my part. I just got the days mixed up.

I was told that only a handful of you showed up. And that most of you did not have questions.

But still, I am very sorry I got the times mixed up.

But there is a real Q & A session scheduled for Saturday Dec. 10 at 1 PM in Room 113.

And I will be there.

Rick Duncan

Eleanor Rigby

The Gotham Times has an article on:

The Lonely Death of George Bell

 It reminds me of our class discussions of "all the lonely people," like Eleanor Rigby, who die intestate and without heirs.

Class Schedule

Just a reminder, as we discussed in class last week, there will be no Property class tomorrow (June 21 2016).

See you in class on Thursday.

Property Exam: Q & A Session

                              Oh, no! I didn't study the Law of Finders and First Possession!



I have scheduled an hour for a Q & A session on the day before the exam.

Time: Tuesday may 3 @ 12:30 to 1:30 PM
Place: Room 113

See you then.

Harriet Tubman

I am delighted that the Treasury has chosen Harriet Tubman--a gun-toting, free-exercise acting, lawbreaking-Christian-rescuer of fugitive slaves. This is a great tribute to a great woman and to a great tradition of religious conscience in the face of laws restricting conduct that is motivated by religious beliefs.

Looking Back on this Year's Property Class

Today is our last Property class.

As I think about this year drawing to a close, I just wanted to express my feelings about how this year's Property course has gone. I really appreciate how much enthusiasm you as a class have maintained as we journeyed together through 6 credit hours of Property Law. Not a class goes by without many of you raising your hand to participate in our discussion and  asking many excellent and thoughtful questions.

My teaching philosophy has always been to try to make even dry and boring material fun to discuss, without skimping on substance and depth of analysis. I also love to challenge the legal reasoning of judges, and lawyers, and legislators, and law professors such as those writing casebooks or the Restatements. I push hard against all legal arguments to help you understand that a legal argument is not over until it is over. And it's never over. As a class, you seem to enjoy that approach and to embrace it with thoughtfulness and joy.

So, anyway...thanks for a great year. I will see you one more time for our pre-final Q & A session..

Cheers, Rick Duncan

Q & A Session

I will try to schedule a Q & A session a day or two before our final examination.

Keep checking the blog for exact time (place will be Room 113 if I can get the room).

Spring 2016 Syllabus and Assignments

   Hannah Duncan Dances "Clara" in Nutcracker 2011

General Information
    This class will meet on Wednesday, Thursday and Friday from 1:15 p.m. until 2:15 p.m. 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). This will require us to cancel seven (7) classes during the Semester without the need for make-up sessions. If it snows in Lincoln, call before coming to class because I will probably cancel class when the roads are bad.

Final Exam and Grading

    The final exam will be a 3-hour, closed-book exam.  It will be cumulative, based upon material covered in both Fall and Spring Semesters.  The final exam will be a combination of perhaps one or two medium to short essay questions, and objective questions.

    Your grade for the course will be based upon your performance on both the mid-term and the final exam.  The mid-term exam counts for 100 points (25%) and the final exam counts for 300 points (75%).

Class Attendance

    Class attendance is required.  I often use problems discussed in class as the clay from which I sculpt exam questions.

Office, Email and Course Blog

    My office is Room 220.  You are welcome to come by any time (Note: right before class is usually not the best time, since I am often busy with final class prep).
  
   My email address is:   rduncan2@unl.edu

    Please check the course blog regularly for class announcements and substantive content.  I will assume you have notice of anything posted on the course blog.  The blog address is: http://hoorayproperty.blogspot.com/

Required Texts:

1. Cribbet, Findley et al, Property: Cases and Materials (9th ed. 2008)(your "Casebook")
2. Stoebuck & Whitman, The Law of Property (3d ed. 2000) (your "Hornbook")


Assignments

Here is the list of assignments for Spring 2016. You are also responsible for material posted on the blog.

For our first class, read assignment I.(1) and then stay one assignment ahead for each class.

I. RLUIPA; Eminent Domain and the Takings Clause


1-2. Read Prof. Linder's Introduction to Takings Clause (link);Casebook p. 791-807: Public Use Requirement: Film: Poletown Lives!
3. U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto)
4. Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)
5. Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone (Handout)
6. Lucas (casebook p. 836-849)
7. Nollan and Dolan (casebook p. 849-868)
8. Palazzolo (casebook p. 868-879); Tahoe-Sierra (link)
9. HORNE ET AL. v. DEPARTMENT OF AGRICULTURE  (link); casebook p. 879-881

RLUIPA (the Religious Land Use and Institutional Persons Act) is a recent Federal Civil Rights law that protects religious land use--i.e., it is a property law that protects the right of landowners to use their real property for the purpose of religious exercise. The Hobby Lobby case is not a land use case (it is a business property case however), but we will read it because it involves the Supreme Court's interpretation of the meaning of "substantial burden" which is a crucial part of the RLUIPA test).

10. RLUIPA Handouts 8, 8A and 8B; Hobby Lobby (Link)


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. Exclusionary Zoning

11. Casebook p. 883-896
12. Casebook p. 897-914



III. The Recording System

13. Casebook p. 1129-1144; Handout 9
14. Casebook p. 1144-1158
15. Casebook p. 1158-1169
16. Casebook p. 1169-1180
17. Casebook p. 1180-1188

I am not "assigning" the Hornbook's coverage of the recording system, but you may wish to read the coverage on pages 869-923 for some helpful background discussion.


IV. Adverse Possession

18. Casebook p.168-191; Hornbook p. 853-869; 898-905


V. Easements, Etc.

19. Casebook p. 559-571; Hornbook p.434-444
20. Casebook p. 571-589; Hornbook p. 444-451
21. Casebook p. 589-593: Hornbook p. 451-469


VI . Real Covenants and Equitable Servitudes

22. Casebook p. 617-628
23.Casebook p. 628-636
24. Casebook p. 636-642
25. Casebook p. 642-652




26. Casebook p. 91-98; 652-661; Re-read Moore case (casebook p. 894-896)
27. Casebook p. 662-672

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. 

Class Cancelled Wednesday March 2

My flight home just got cancelled. I am stuck in Kentuck.

So, no class tomorrow Wednesday  March 2.

Justice Scalia

Justice Scalia R.I.P.

I am brokenhearted by the death of Justice Scalia. He was the greatest Justice of my generation, maybe of all time.

If you have a chance to read something this week, here is a link to an interview with Nino.

Super Bowl Jublia Commercial

I hope you all thought of Nollan & Dolan and "rough proportionality" when you saw the Jublia commercial during the Super Bowl yesterday.

Jublia yes, amputation no (the cure is not proportional to the disease).

Horne v. Dept of Agriculture--Physical Takings of Personal Property

When the government physically takes personal property--such as a person's raisin crop--is this a taking that requires just comepnsation?

From SCOTUSblog:

Holding: The Fifth Amendment requires the government to pay just compensation when it takes personal property, just as when it takes real property. In this case, any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking; it does not mean the raisins have not been appropriated for government use. Nor can the government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce.

The per se rule of Loretto (a physical taking is a taking no matter how small) applies both to real property (such as an apartment building) and personal property (such as raisins or corn or automobiles).

"The Government has a categorical duty to pay just compensation wjhen it takes your car, just as when it takes your home." Majority opinion at 5. Chief Justice Roberts says this principle goes back "at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings." Id.

May the government condition your privilege to participate in the raisin market on your willingness to transfer 47% of your crop to the government? May the government condition your right to participate in the landlord-tenant rental market on your willingness to allow the cable tv company to run its cables on your building?

Answer no. "'Let them sell wine'" is probably not much more comforting to raisin growers than similar laws have been to others throughout history." Id. at 12. The government can regulate the raisin industry, but it may not require raisin producers to transfer title to part of their crop as a condition to participating in the free market for raisins. This is a physical taking, not an exaction that will be upheld so longs as proportional.

{Ask yourselves is this case more like Lorretto or more like Nollan/Dolan?}

Handout Available

The Keystone Coal case handout is now available in the handout racks outside the South Faculty office suite.

For Wednesday Jan. 20

We will finish Assignment 3 and move into Assignment 4 (Mahon and Penn Central).

The Absent-minded Professor Thanks You

Again, I wanted to thank you for being so graceful in response to my mixing-up our early-scheduled class today.

As a small token of my appreciation, I will offer you an opportunity to choose two of the eight classes we are required to cancel this semester (due to our 60-minute classes and today's double class: 7 plus 1 equals 8).

Think about which two Fridays you would like to have off, and I will take a vote tomorrow and honor your choices.

Detroit in Ruins

By the way, after studying Poletown some of you may be interested in this post from the PropertyProf blog about the ruins of Detroit:

Detroit in Ruins

Not the most cheerful way to ring in the new year, but the Guardian just published a series of provocative photographs of decaying cultural landmarks in Detroit.  A bitter reminder that Detroit's problems started long before the current economic troubles.  You can find the photos here.
Tanya Marsh

Those pictures of Detroit's ruined landmarks is worth viewing.

Thursday Jan. 14--Let's Play Two!

Tomorrow, Thursday Jan 14, we will have a double session of Property (from 12:15 to 2:15) in order to view a wonderful documentary on economic development takings such as in the Kelo case.

So tomorrow:

Room 113 from 12:15 to 2:15.

Q & A Session

I have reserved  Room 113 for a Q & A session on Tuesday Dec. 15 at Noon.

This is optional, but I will be there to try to answer your questions.

Spread the word to your classmates.

12 Days of Finals

 
So, my daughter, Becca, is taking her 1L finals at Cornell, and she came up with the following parody that I thought I would share with y'all:


On the twelfth day of finals Cornell Law gave to meee-
Twelve gunners gunning,
Eleven coughers coughing,
Ten friends a weeping,
Nine 3L's laughing,
Eight profs a plotting
Seven clocks a ticking
Six sections freaking
Fiiiiiive cell phones riiiiiiiing-
Four failing grades,
Three lattes,
Two tired eyes,
And a dose of realityyyyy

Class Cancellations

                                           My Favorite House On Sandbridge Beach



Remember--On Friday December 4, I will be in class (usual time, usual place) for a Q & A session. This is optional, but it is a good opportunity to clear up any confusion you may have going into the mid-year exam.

Due to our 60-minute class schedule, we are required to cancel 7 classes.

Here are the cancellations so far:

1 & 2. Wednesday Sept. 23 and Thursday Sept. 24 (I will be speaking at Indiana Law, Notre Dame Law & U Mich Law)
3. Wednesday October 28 (speaking at law schools in Georgia and Florida)
4. Wednesday November 11 (speaking at Wayne State Law in Detroit)
5. Wednesday November 18 (speaking at Florida State Law)
6-7.  Dec. 2 & 3

December 4 is last day of classes

Rent Control Bad for Landlords, Worse for Tenants?

Gotham Times

Reason.com

SF Chronicle

Class Re-scheduled Friday Nov. 6

In lieu of meeting at our regular time and regular place next Friday Nov. 6, we will instead meet in the Auditorium at Noon for the Lane Foundation Lecture, which this year is a Property lecture given by Prof. John Langbein of Yale Law School. Prof. Langbein's topic is an advanced topic on the "Nonprobate Revolution" of family wealth transmission. It should be of great interest to students interested in Property, Wills & Trusts, and the general practice of law. Here is more information:

 Prof. John Langbein

Lane Lecture Friday Nov. 6 Noon Auditorium

The Nonprobate Revolution: Privatizing Family Wealth Transfer in the United States.   Probate, the state-operated system of family wealth transmission, has been marginalized in contemporary American practice by the rise of free-market competitors in the financial services industry.  Today, it is banks, mutual fund companies, brokerage houses, insurance companies, and retirement plan operators who handle most intergenerational wealth transfer.   Professor Langbein will speak about the causes and extent of the nonprobate revolution, and about some worrisome drawbacks that are emerging as this new system of wealth transfer takes hold.

Handouts Available

The Handouts that have been assigned are available in the Handout Racks near the South Faculty suite on the second floor of the library.

Historic Baseballs and their First Possessors in the News

So David Ortiz just hit his 500th home run, not a record but a great milestone. The fan who caught the ball was recently praised in a Tweet by Gordon Edes, a baseball writer who covers the Red Sox:

"The fan who returned David Ortiz's 500th HR ball impressed Sox and Ortiz.by making no extravagant demands. A few photos, souvenirs, is all."

By the way, here is a humorous revision of Take Me Out To The Ball Game"

  Dick Flavin’s “Red Sox Rhymes” gives us one gem after another. Here’s one:

“Take me out to the ballgame.
First, let’s stop at the bank.
I’ll need a mortgage so I can pay.
Parking the car is another outlay.
And you can pay big bucks for a hot dog,
The cost of beer is insane.
For it’s Oh my! Prices high
At the old ballgame.”

No Property Class Today--Friday Sept. 4

Remember, because we had a double class on Wednesday for the documentary, we are not meeting today.

Enjoy your longer weekend!

Doubleheader Next Wednesday Sept. 2

                                               Hannah Duncan Arizona Pom Line 8-29-14 ESPN


We will have a double class next Wednesday Sept. 2. Class will begin at 12:10 PM and run until 2 PM in Room 113 (our normal room). I am also paying back the 10 minutes I owe you.


We will watch a documentary on Popov v. Hayashi (casebook p. 113) and then discuss the actual decision in the case.

This is the Barry Bonds 73rd home run ball case. The documentary is fantastic. Very funny and very informative about the law and litigation. 

Update: We will account for this double class by cancelling class this Friday Sept. 4.

Next Wednesday--Doubleheader

Next Wednesday we will be having a double class--From 12:10 PM until 2 PM. In Room 113.

Philosophy and Forced Transfers of Property

" Is it moral for the government to force others to give to the cause of your choice?"

I recommend this interesting video from the Acton Institute and Rob Gressis, a professor of philosophy.

Link

Q & A Session With Duncan and Rembrandt

                                                    Me and Rembrandt at the Louvre



Wednesday April 29 at 1 PM in Room 113.

Y'all bring the questions, oui will try to bring a few answers.

PS My wife thinks I need a haircut, but I am going for the Grizzly Duncan look.

Restrictive Covenants and Liberty

From PropertyProf blog:

 

Boston Archdiocese's Use of Restrictive Covenants

Over at the Faculty Lounge, Al Brophy has a great round-up of the Boston Archdiocese's aggressive use of restrictive covenants when it sells property:

One property in Holyoke has restrictions against an abortion clinic, exotic dance club, or satanic materials. One property in Lowell has restrictions against "prurient activity," including nude, semi-nude or sexually suggestive activity or entertainment, production, publication, display, or promotion of pornography. A property in Cambridge has restrictions for housing use only and a property is Lawrence is restricted against use by a charter school.

[...] There are a ton of interesting things to talk about here. I suspect some of these restrictions are enforceable -- like the ones against the exotic dance club. [...] What interests me in particular are the restrictions on abortion. Couple of things to think about here. The Restatement Third of Servitudes § 3.1 -- if applied in Massachusetts -- would be a problem for the enforcement. Recall that § 3.1 construes a servitude that unreasonably burdens a fundamental constitutional right as a violation of public policy.

Preview of Coming Attractions

We will be studying the law of restrictive covenants soon. Here is an interesting post from the PropertyProf blog:

Restrictive Covenants in Custom Home Subdivisions

The Indianapolis Star has an interesting article recently describing a situation that is doubtlessly concurring in many upscale communities across the country.  There are several subdivisions in Hamilton County, just north of Indianapolis, that were marketed as available to custom home builders only.  The large lot sizes, large home sizes, and required architectural features were supported by both restrictive covenants and zoning restrictions.  But, as you may have heard, the economy crashed.  Many smaller custom home builders in Indianapolis have gone out of business.  The original developers of the subdivisions either lost unbuilt lots to the bank or have been forced to sell them in a bulk sale to production home builders.
So the people who built their $1 million plus custom dream homes (which is a VERY VERY nice house in Indianapolis) in these subdivisions are now battling to keep out the $350,000 to $500,000 production homes.
Lawsuits have already been filed, so I suspect that we will be seeing more appellate court decisions across the country soon interpreting restrictive covenants that the homeowners understood as limiting the subdivisions to custom-built homes.
Tanya Marsh

This is much more restrictive than the exclusionary zoning decisions we read--these covenants are like posting a sign on a neighborhood that says "Only millionaires may live here!"

Great Speaker Monday March 9 at Noon

Don't miss Prof. Jim Duane's entertaining and informative talk on why even innocent persons should not speak to the police when they are suspected of a crime.

I have seen Jim speak many times, and he is one of the best speakers anywhere on legal issues.

Monday March 9 at Noon! Free lunch!

Wednesday Q & A

On Wednesday, we will finish up this little unit on exclusionary zoning and then I will save some time at the end of class for some Q & A.

This is a great time to ask questions about Takings, RLUIPA, and Equal Protection and exclusionary zoning.

Think about what you are confused by or struggling with and ask away!

Supreme Court Oral Argument in Holt v. Hobbs

I would like you to listen to the Supreme Court oral argument in Holt v. Hobbs (the RLUIPA prison beard case). We will do this as a way of making up next Wednesday's class, when I am speaking at UMKC law.

here is a link to the oral argument.

The case is not about religious land use, but the Court is interpreting the very same statutory standards that apply when land use laws are challenged under RLUIPA.

You will get more out of the argument if you read the Court's opinion first.

"Judge says Phoenix church cannot feed homeless "

Link. Here is the report:

It's one of the many good deeds for which churches are known, but now a judge has ruled that feeding the homeless is against the law. The ruling is against CrossRoads United Methodist Church in north-central Phoenix and it says that the church is operating as a charity dining hall, which breaks a city zoning ordinance.
The area where the church is located -- Central and Northern avenues -- is zoned as primarily residential. Charity dining halls are considered businesses.
The controversy swirling around the church's weekly pancake worship service started last spring when neighbors complained about an increase in the number of homeless people in the neighborhood, panhandling, burglary, public intoxication and vandalism, among other things.
"We can minister to the poor ... that’s a given," wrote Rev. Dottie Escobedo-Frank on the CrossRoads Web site. "We can hold a worship service for them out on the front lawn. We just can’t feed them. We can’t fill their bellies with warm food. We might as well just go to the street corners and start handing out money, in hopes they will make their way to some food, because you are not allowed to do it at church!"
The decision affects all churches that are located in Phoenix residential areas.
CrossRoads, which maintains that it is operating as a church and not a charity dining hall, plans to appeal the decision. They have until Nov. 24 to do that.

Property and Religious Liberty in the Regulatory/Welfare State

"[T]he greatest threats to religious liberty" in modern America "stem from the insufficient protection of individual liberty in economic affairs." Prof. Richard Epstein

Think about this. Most of the religious liberty cases arising today are cases, like Hobby Lobby, involving extensive regulation of property and economic enterprises.

We will spend 2 or 3 classes studying federal civil rights laws, such as RFRA and RLUIPA, and their application to religious liberty claims in cases involving primarily land use but also economic enterprise.

Thursday's Class (Jan 29)--Starts Early at 12:30

We are going to listen to the SCOTUS oral argument in the Lucas case on Thursday of this week. So we need to start class a little early--12:30 PM.

It is a very interesting argument; and I hope you will learn a lot about oral advocacy.

To make up for our two early start times, I will cancel one of our Friday classes. Maybe the Friday before Spring Break? What are your thoughts on which Friday class to cancel to provide Just Compensation to you for our two early start times?

Civil Asset Forfeitures

Here is a link to an article on Civil Asset Forfeitures, an issue that came up in class earlier this wee.

Here is a money quote:

On a bright, clear morning in April 2013, two professional poker players from California were heading west on Interstate 80 in rural Iowa when they were stopped by two Iowa State Troopers.

Before that stop was over, the officers had seized $100,000, which the men said was money to play poker. The troopers also called ahead to California authorities, who raided the men's homes and ultimately indicted one of them, John Newmerzhycky, on a charge of illegal possession of drug paraphernalia.

If this sounds unusual and way out of the ordinary, it isn't. The seizure is just one of thousands of highway stops that state and local authorities call "interdictions:" Roadside stops aimed at catching drug dealers or even terrorists, but which can also result in cash seizures alone with no criminal charges attached.

It's called Civil Asset Forfeiture, and it was started in the early 1980s by the Justice Department. It has since migrated to thousands of state and local jurisdictions nationwide. The program, when it originated, was meant to target and take money authorities believed was connected to crimes.

A legal advocacy group based in Washington called the Institute for Justice has been battling Civil Asset Forfeiture for years.

"It violates due process for Americans," said Larry Salzman, an attorney for the group. "It's wrong. It's a simple premise that the government should not be taking money from people who have done nothing wrong. It shouldn't be taking money from people who have not been charged, let alone convicted, of any crime."

IJ is doing great work on this and many other economic liberties issues.

Tomorrow's Class Starts at 12:30 PM

We will be watching a film.

Mid-Year Exercise Results

Here is the breakdown for the Midyear Exercise:

1 Student scored 100 points (bravo!)

6 Students scored 96 points

5 Students scored 92 points

 

3 Students scored 88 points

4 Students scored 84 points

3 Students scored 80 points

2 Students scored 76 points

3 Students scored 72 points

2 Students scored 68 points

3 Students scored 64 points

 

1 Students scored 56 points

2 Students scored 52 Points
 

2 Student scored 48 Points

1 Student scored 28 points
 

The test median was 80 points.  Pay no attention to the arbitrary "quartiles."  They are meaningless.

Litigation About a Taking of Raisins

If this isn’t a taking, what is?

Q & A Session Wednesday December 3

I will be there tommorrow--same time same place--to try to respond to your many questions about Property law.

National Debt hits $18 Trillion!!!

That is $18 Trillion with a big, fat capital T!!!

How much of this debt is your share? Just divide $18 trillion by 300 million Americans and you will get your share of this debt. Just add it to your student loan debt and get ready to pay, pay, pay!

Canned Immunity--New Rule

I strongly support the concept of canned immunity--feeding the hungry is a very good thing to do--but I apply a slightly different version of the rules in my classes.

True charity is freely given from a thankful heart, not from a desire to escape justice. Moreover, to buy your way out of being called on with a can of food is a bit like the game of beggar-your-neighbor--you escape the guillotine, but your neighbor without a can must takes your place at the chopping block.

So NEW RULE.

I will call on whomever I call on, and everyone else receives mercy that day. All of you who receive mercy (all of you who are not called on) should give a can or multiple cans to the program out of thankfulness for being spared the guillotine.

Everyone wins. The Food Bank gets more food (because everyone who is spared gives out of thankfulness); the class moves along at a smooth pace; and no one is required to take her neighbor's place at the guillotine simply because her neighbor has paid for immunity.

Please do give to the program.

Marriage and Domestic Partnership Law In Nebraska

Since the casebook mentions the recognition of "domestic partnerships" and "civil unions" in a few states, I thought you might be interested in the Nebraska law. The Nebraska Constitution (art. I, sec. 29) provides:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416.

Notice that this law does not forbid same-sex couples from entering into committed relationships or from having their relationships blessed as "marriages" by their religious authorities. It merely provides that the State of Nebraska will not give legal recognition or validity to same-sex partnerships or unions, such as in the form of tax benefits, inheritance rights, or other legal incidents of marriage.

But notice that wills, insurance policies, contracts, and property arrangements (such as joint tenancies) can be employed to provide same-sex couples with much of the economic security of marriage.

When you represent gay clients, you need to be extra attentive to make sure that they have wills, insurance policies, powers of attorney, and similar legal protections for their partners.

Property and the "Knee Defender"

Gotham Times reports (link):

I have a set of Knee Defenders, the devices that hook onto the tray table of an airliner seat back and prevent the seat from reclining.

When I mention this to people, they express shock, as if it is something beyond the moral pale, like taking candy from children or not tipping above 15 percent.

It’s an even a worse offense in the eyes of my colleague Josh Barro, who argued this week for the primacy of the economic rights of the recliner. He calls using a Knee Defender theft.

The real problem is undefined property rights over the same four or five inches of space. People don’t agree on who has the rights. The airlines leave it foggy.

“As for what customer has the ‘right,’ I think what we can say is the in-flight experience is much better when passengers are courteous to each other and flight crews,” said Paul Flaningan, a spokesman for American Airlines.

The person who wants it most will end up owning the rights, but the person with the recliner button holds an advantage. The Knee Defender reallocates the rights. Now I can claim the four inches in front of my face.

The problem seems akin to people walking on a 48-inch city sidewalk with those ridiculous 54-inch-wide golf umbrellas. Or is a better analogy the range wars of the American West in which cattlemen try to stop the farmers until Shane fights back with his ivory-handled Colt revolver?

Using a Knee Defender may seem uncivil, but it is not: It just evens the playing field. Instead of having the guy in front of you slam the seat back and wait for $50, as Mr. Barro suggests, with a defender you can now negotiate.

“It gives you the chance to be human beings,” says Ira Goldman, the inventor of the Knee Defender, who has seen traffic to his online store rise 500 times above average since an altercation last weekend on a United flight involving his device. “Do you want the conversation to start before the laptop screen is cracked or after it is cracked?” he asks. “Like Max Bialystok and Leo Bloom in “The Producers,’ the airlines sell 200 percent of that space.”

The airlines have also failed to establish property rights for armrests, but there is a generally understood code for that: The person in the aisle has room to stretch, the person in the window seat has the fuselage to lean against, and the person in the middle has nothing, so he or she gets the armrests.

Most reasonable people agree, although I once had a seat mate on the aisle who insisted the armrest was his. After a little jockeying for ownership, he began pulling hairs from his nose and lining them up on the armrest. “You win,” I said.

But I have a moral code for users of the Knee Defender. If those in front of you never notice or care, then no harm done. When they do notice, what usually happens is that they complain to a flight attendant that the seat is broken. The flight attendant will know immediately what’s up. In that case you remove them at once and, if necessary, apologize. (No major airline condones their use because they can cause a ruckus in the cabin, as happened last Sunday when a pilot had to divert a plane to eject two unruly passengers.)

Mr. Goldman, a former Senate aide who got the idea during a long flight, says people don’t want to use his devices but have no other solution. He offers a card on his website that he suggests you give to the person in front of you. It says, in part:

If you would like to recline your seat at some point during the flight, please let me know and I will try to adjust myself and my Knee Defender so that it can be done safely.

I realize that this may be an inconvenience. If so, I hope you will complain to the airline. Maybe working together we can convince the airlines to provide enough space between rows so that people can recline their seats without banging into other passengers.

Thank you for your understanding.

That card, with its passive-aggressive tone, is just asking for trouble. And it cannot change the reality: The way the system is now designed, the recliner has every incentive to push the button and recline. The Barro pay-me solution gives the recliner even greater incentive to always do so.

Airlines could solve the problem by declaring themselves Reclinists or Knee Savers, and passengers could choose which airline to fly based on that (or at least would know what to expect on board).

Until then, the Knee Defender reallocates the property rights. Using it makes you no more or less of a jerk than the person who always reclines.

Excuse me now while I go online to order the Kid Bagger for that toddler who will be kicking the back of my seat with her steel-toed Mary Janes.

Q & A Session: Saturday May 3 at 1 PM Room 113

              ?  ?  ?  ? ?  ?  ?  ?  ?  ?  ? ?


I know many of you will have questions as the exam approaches.

So I will be in Room 113 tomorrow at 1 PM for a Q & A.

Spread the word to your classmates when you see this post!

Rand Paul on Liberty in an Age of Security

Rand Paul on liberty and airport security:

Harvard Law School professor Noah Feldman has asked, “The next time airport security tells you to put your hands over your head and hold that vulnerable position for seven seconds, ask yourself: Is this the posture of a free man?”

Here is the Bork Quotation I Mentioned in Class

Bork on Temptation of the Judiciary:


The late, great Robert Bork once brilliantly explained how a judge can be tempted to follow his own views of justice rather than to do his duty and follow the law:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held views 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.

Tuesday March 4--Required Attendance at Pound Lecture

We have a very special Property speaker coming to the Law College on Tuesday March 4. Prof. Epstein is the leading authority on Takings and the Takings Clause. I am requiring the Property class to attend his Pound Lecture at the Law College on Tuesday March 4 (this is in lieu of our regular class on Wednesday March 5). Here is the information about the Pound Lecture:

 

 

The Upside Down World of Financial Takings

Speaker: Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law

 

DATE: Tuesday, March 4, 2014
TIME: 12:00 - 1:00pm
College of Law, Auditorium
Approved for 1 CLE credit hour

DESCRIPTION:

Modern takings law tends to concentrate on the distinction between physical takings by occupation and regulations of land use.  Financial claims fit only uneasily into this two part landscape. The lack of a coherent theory of how financial liens and contract claims should be treated has led to some serious confusion in the area.  There are many cases, such as the recent dispute over the private stock holdings in Fannie Mae and Freddie Mac where courts often do not supply enough protection to property interests against confiscation, and other cases, like the pension claims by union workers against the state, where the constitutional protection is too strong.  In this lecture Professor Epstein will develop a unified approach to government takings to explain why today's dominant legal approach has it backwards.

California Couple Finds $10M Buried Treasure in Back Yard

Yikes! Here is the link.

Poletown Movie

Thursday's class will concern a showing of the documentary on the Poletown case.

We will meet from 2:10 until 4:10 PM.

As a result of the double length class on Thursday, there will be no class on Friday.

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.