Good Hypo

In a past year, a student asked me a very interesting hypothetical question involving the following grant: G conveys "to A for life, but if A uses the property for commercial purposes, then to B and his heirs."

What interst does A have?
What interest does B have?
What interest does G have?

Let's discuss this!

How about this one?

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

What does A have?

What does Grantor have?

Answer:

A has a life estate subject to a condition subsequent

Grantor (Grutz) has both a reversion and a power of termination. One commentator explains that: "The interest in the Grantor is more than a reversion. The [power of termination] does not become effective automatically, but only at the will of the grantor. Therefore, the interest is best described in its two parts."

Yesterday's Last Hypo

I just want to make sure that we are all clear on this one:


4. Suppose Grutz conveys "to A for life, then to B and his heirs, but if B dies before C, then to C and his heirs."

What is the state of the title?


A has a life estate
B has a Vested Remainder Subject to Complete Defeasance in Fee Simple Absolute
C has a Shifting Executory Interest in Fee Simple Absolute


Now suppose A dies and both B and C are still alive? 


Upon A's death his life estate terminates.

B's remainder takes effect and he now has a Fee Simple Subject to an Executory Limitation
C has a Shifting Executory Interest in Fee Simple Absolute


What happens if B dies and C is still alive?

B's interest is divested because he died before C, the title thus shifts to C, who now owns Blackacre in Fee Simple Absolute.


What happens if C dies and B is still alive?


B now has a Fee Simple Absolute.

C's Executory Interest has failed (because C died before B) and thus B's Fee Simple is no longer subject to an executory limitation.

Braswell v. Braswell

James J. Braswell conveys "to Nathaniel for life, then to the heirs of his body, but if N dies without heirs of his body, the land shall revert to the Grantor or his heirs."

The doctrine of worthier title, when applied to an inter vivos conveyance of property, prefers a construction of language that would otherwise create a contingent remainder in the grantor's heirs as the retention of a reversion by the Grantor.

Thus, Grutz conveys "to B for life, then to the Grantor's heirs."

What is the state of the title without the rule?

B--life estate
G's heirs--contingent remainder

With the rule?

B--life estate
G--reversion
G's heirs--nothing

Suppose G conveys his reversion to me? What do G's heirs get on his death? Nothing: I own G's reversion in Fee Simple Absolute.

Back to Braswell.

What result if we construe the conveyance as "to Nathaniel for life, contingent remainder to his surviving descendants, but if he is not survived by descendants, reversion to the Grantor"?

Since Nathaniel survived the Grantor James Braswell (who died intestate in 1932 "leaving surviving him, as his sole heirs at law" Nathaniel and his two brothers), Nathaniel and his two brothers each inherited a 1/3 interest in the Grantor's reversion, and Nathaniel has devised his 1/3 share to Pl, Charles Braswell.

Now, what result if we construe the original conveyance as "to Nathaniel for life, contingent remainder to his surviving descendants, but if he dies without surviving descendants, then to the heirs of the Grantor who survive Nathaniel"?

Now, Nathaniel's two brothers, as the surviving heirs of James Braswell, each take 1/2 when their contingent remainder vests on Nathaniel's death "without issue" in 1952. Pl Charles Braswell takes nothing under Nathaniel's will because therre was no reversion for Nathaniel to inherit.

The Court holds that under the Doctrine of Worthier Title, the original deed creates a reversion instead of a contingent remainder in the Grantor's surviving heirs. Thus, Charles prevails in this lawsuit and gets his 1/3 share of Blackacre. See casebook at 332.

Do you see how this works?

Class Today--See you at 1:15 PM in Room 113

We will have our regularly scheduled class today after the Lane Lecture.

The law of Estates is difficult for many students, so you should make an extra effort not to miss class.

Lane Lecture: former U.S. Solicitor General Don Verrilli

On Friday September 28 at noon in the auditorium, former U.S. Solicitor General Don Verrilli will be giving the Lane Lecture. Verilli has argued many cases before SCOTUS.

I am assigning this lecture as part of our Property course. It will be in lieu of a makeup if we need to cancel a class later in the semester. Much of Spring Semester of Property will focus on the constitutional law of Property and SCOTUS cases.

Berger vs. Duncan on Trump SCOTUS & Kennedy's Legacy

This Wednesday at Noon in the Auditorium Prof. Berger and I will discuss the Trump SCOTUS & Kennedy's Legacy.

Not required just some fun.


These little debates between Eric and me are always fun, both for us and for the students who attend.

You are all welcome.

Law Prof. Channels Hamilton

U Chicago Law Prof William Baude channeled Hamilton in remarks to new 1Ls : "The following remarks were delivered by William Baude, the Neubauer Family Assistant Professor of Law, at the Entering Students Dinner, September 22, 2016"


Link

 
  I am not the only one.

Common Law Lawyering

Now that we have read a number of cases in one area of Property law, re-read Justice Scalia's thoughts on the common law--link

Let's Play 2! Doubleheader on Friday August 24

This Friday we will meet from 12:10 until 2:15 for a double class session. We will read Casebook p. 113-124 (Popov v. Hayahsi ) and enjoy an in-class in class screening of Up For Grabs, a documentary about the Popov case. BYOP (bring ytour own popcorn).

Judge McCarthy and King Solomon

Would King Solomon approve of Judge Kevin "You're So Vain" McCarthy's decision to give each of the parties a one-half interest in the Bonds home run ball?

Property and Liberty

Some people view property as an evil (as in "money [property] is the root of all evil") that must be regulated and restrained.

I have a different view. I think property is inextricably intertwined with liberty--with the liberty to raise a family, with the liberty to educate children, with the liberty to worship, with the liberty of free speech--and these (as well as other) fundamental liberties are vulnerable in a society that does not value property rights.

For example, one way to restrict my liberty to educate my children in a private religious school is to require all students to attend secular public schools only. The Supreme Court of the United States invalidated an Oregon law that required public education for all school-aged children as violating the constitutional right of parents to direct the education and religious upbringing of their children. May government do indirectly (through zoning laws that restrict private schools from locating in the community) what it cannot do directly (by prohibiting non-public education of children)? May the state use zoning laws to prevent churches from opening in certain locations? May the state use zoning laws to zone out "adult bookstores?" Or abortion clinics? May the state use zoning laws to prohibit homeowners from conducting regular prayer meetings in their homes?

As you can see, it is easy for the state to restrict our most sacred (as well as some not-so-sacred) liberties merely by restricting the property upon which we exercise those liberties.

Look for these kinds of issues to arise throughout the course.

Finders cases are lots of fun, but we will have bigger fish than these to fry!

Should the Courts "Do Justice" or "Apply the Law"?

Judge Learned Hand

Justice Holmes

There is a great, old story in the law about two great judges. Here is one writer's account:

"There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, 'Do justice, sir, do justice.' Holmes stopped the carriage and reproved Hand: 'That is not my job. It is my job to apply the law.'"

Hmmm. What is the point Holmes was trying to make? This has come up recently because President Obama says that he believes Justices should decide cases with "empathy." What does that mean? Should judges overlook the law when their personal sense of empathy tells them to do so? Or should they follow the law where ever it takes them, even if they don't like the result the law requires? Think about this as you begin your careers in the law.

Review Session Tuesday May 1 Room 113 at 1:15 PM

                                      My Glove on Monstah At Fenway


We will have a review session (question and answer session) on Tuesday May 1 at 1:15 PM in Room 113.

Red Sox jerseys are optional but strongly recommended.

Is that a great picture or what? In another life, I coulda been a contender at photography!

Thursday April 19

Today (Wednesday) we will get through Assignment 25.

Tomorrow we will read Assignment 26-27. I will skip around a bit and try to cover as much as we can.

Wonderful SCOTUS Preview Next Wednesday April 11

 

An old friend of mine, Jordan Lorence of Alliance Defending Freedom, will be speaking at the law school on “Of Weddings, Babies and the Freedom of Speech” next Wednesday, April 11 at noon in the Auditorium.

Jordan is one of the leading constitutional law litigators in the country and also an excellent speaker.

This event is sponsored by the Christian Legal Society at UNL.

This will be a fabulous opportunity to learn about con law from someone who does this work every day.

Here is some info on Jorden:

Jordan Lorence serves as senior counsel with Alliance Defending Freedom where he plays a key role with the Advocacy Research and Innovation Team. His work encompasses a broad range of litigation, with a primary focus on religious liberty, freedom of speech, student privacy, conscience rights of creative professionals, and the First Amendment freedoms of public university students and professors.
Lorence argued before the U.S. Supreme Court in the precedent-setting Southworth v. Board of Regents of the University of Wisconsin System case in 1999, challenging the university’s requirement that forced unwilling students to contribute to campus activist groups. He led the challenge to New York City’s ban on private worship services after hours in vacant public school buildings in the long-running Bronx Household of Faith v. Board of Education of the City of New York case.

Summer School--2018

The pier at Sandbridge Beach (photo by Becca Duncan)



I have had a few questions about Summer School, so I thought I would post this short description of the course I am teaching this coming summer during the Second Summer Session.

The course is Con Law II: Religious Liberty and Freedom of Speech. It is a First Amendment course that focuses on religious liberty under the First Amendment--Establishment Clause, Free Exercise Clause and Free Speech as it impacts on ordinary people and groups (for example, public school students, government employees, and speakers wishing access to public fora) who find their speech restricted by government because of the content or viewpoint of the speech.

If you enjoyed our brief discussion of RLUIPA, you should really enjoy this course.

Here is why I am mentioning this: although the course is called Con Law II, please be aware that Con Law I is not a prerequisite. Con Law II is completely independent of Con Law I, and it is perfectly okay to take Con Law II before taking Con Law I. In fact, taking Con Law II in the summer of 2018 may help you hit the ground running when you take Con Law I in the Fall of 2018.

As much as I enjoy teaching Property, Con Law II: Religious Liberty and Freedom of Speech is my favorite class to teach. The issues are extremely interesting and important, and because the law in this area is in a constant state of transition and the Supreme Court is delicately balanced right now, this course is an intellectual feast.

Please don't hesitate to discuss this course with me if you have any questions.

Question for Today--Disproprtionate Impact & EPC

Should the Court hold that any law that has disproportionate racial effects constitutes racial discrimination  which triggers strict scrutiny under the Equal protection Clause? Why or why not?

Hobby Lobby as a Land Use Case

"Hobby Lobby as a Land Use Case: Charting For-Profit RLUIPA Claims" 
NYU Journal of Law & Liberty, Vol. 10, No. 2, 2016, Forthcoming

ROSS CAMPBELL, New York University (NYU), School of Law, Students
Email: rrc323@nyu.edu

Hobby Lobby has provoked much discussion. However, scarce attention has been given to its potential impact on RLUIPA litigation, particularly, the novel possibility of for-profit corporations asserting claims under this statute. There is little reason to suppose that Justice Alito's opinion on the scope of RFRA would not similarly apply to RLUIPA. Therefore, closely-held businesses, from big-box franchises to mom-and-pop shops, may be able to invoke federal protection against zoning decisions that burden their owner's religious exercise. How this complicates the balance of American federalism — by increasing federal interference with traditional state prerogatives over zoning, yet also generating new dialogue on the scope of individual rights — should be discussed and revealed in time.

You Are Invited to See a Legal Theatrical Play

As you may have guessed, I love both the law and the theatre. And what could be better than a theatrical play about Justice Scalia and his debates in chambers with one of his law clerks who disagrees with him about practically everything. And yet they respect each other.

So, I am showing a streaming version of The Originalist for my Con Law Seminar this Thursday at 4:30 PM in Room 113. I saw this play performed live (from the front row) in DC, and I have also viewed the streaming version. Both were excellent.

 With the permission of my seminar class, you (my Property class) are invited to attend. It will start at 4:30 PM on Thursday February 8 in Room 113.

This is optional of course. Just something to attend if you think you might enjoy this.

Handouts Available

The Handouts for Assignment 10. (RLUIPA Handouts 8, 8A and 8B) are available in the Handout Racks near the South Side Faculty Suite. We will not get to these materials until next Thursday or Friday. So, no hurry.

Notice I have also deleted from Assignment 10 the link to the Hobby Lobby case--although it deals with much the same tests under RFRA that we will focus on under RLUIPA, the opinions are just too long and I have decided not to get you bogged down there.

Elvis Is In The Building

I conquered my fear of insurance companies and made it to the Law School.

See you at 12:20 for either Poletown Lives or Blue Hawaii starring Elvis.

Mid-year Exam Results: Fall 2017

 

 

Mid-year Exam Results

Here is the breakdown for the Midyear Exercise:

0 Students scored 100 points

4 Students scored 96 points

2 Students scored 92 points

11 Students scored 88 points

 5 Students scored 84 points

 2 Students scored 80 points

 5 Students scored 76 points

 1 Student scored 72 points

 3 Students scored 68 points

 2 Students scored 64

 4 Students scored 60 points

 

 2 Students scored 56 points

 2 Students scored 52 Points
 

2  Students scored 48 Points

2  Students scored 44 Points

The test median was 80 points.

Pay no attention to the arbitrary "quartiles."  They are meaningless. Totally meaningless. The only thing that "counts" is the number of points you scored out of a possible 100 points.

Akhil Amar's Lane Lecture Friday October 20

Instead of our regular class on Friday October 20, I am assigning you to attend the Lane Lecture by Professor Akhil Amar,  on Friday October 20 at noon in the auditorium.  The title of his talk is “The Constitution Today.”

We will be spending a significant amount of time studying the constitutional law of Property next semester. Prof. Amar is one of the major Con Law scholars in America, and I want to make sure you have an opportunity to hear what he has to say to us.

Attending this lecture is in lieu of our normal class, but I will show up to class at the normal time to discuss your questions and comments on Prof. Amar's lecture.

Here is some more about Prof. Amar's Lecture (from dean Berger):

"This Friday (October 20) Professor Akhil Amar from Yale Law School will be delivering the Lane Lecture at noon in the auditorium.  Professor Amar, who is Sterling Professor of Law and Political Science at Yale University, is one of the leading constitutional scholars in the country.   

 

His talk is entitled “The Constitution Today.”  Here is a brief summary:

 

For the first time in our lifetime—and for one of the few times in modern history—all four major federal institutions of power were in play in the last election.   When the two national conventions met in 2016, Democrats had a real chance to win control of the House, Senate, Presidency, and Supreme Court.  Instead, the Republicans swept the field and now control all four institutions, even though Donald Trump lost the (legally irrelevant) national popular presidential vote.  In this Lane Lecture, based in part on his recently released book, The Constitution Today, Yale Law Professor Akhil Reed Amar will discuss the constitutional significance of all this and will touch upon a wide range of modern cases and controversies—from gun control to gay rights, from the electoral college to campaign finance to filibuster reform. Come prepared to ask any question you like about America’s constitutional system—past, present, and future."

 

Hugh Hefner's Life Estate Ends

See link

The Wall Street Journal reports that Hugh Hefner sold the iconic Playboy Mansion for $200 million, but retained a life estate.

The sale comes with one unusual condition: Mr. Hefner, 90 years old, will be able to remain in the home as long as he lives. After Mr. Hefner’s tenancy ends, Mr. Metropoulos intends to connect the two estates into a combined 7.3-acre compound, a representative for him said.

Hefner’s wife and other heirs will take nothing. When he dies, the purchaser will receive the house in fee simple.

Class Schedule Update--We Played Two for Mr. Cub, Ernie Banks

Now you get to vote on which class to cancel to compensate for the doubleheader we played last Friday.

So let's vote.

Today's Class

1. We are having a doubleheader today--Class starts at Noon and ends at about 2 PM.
2. Please feel free to bring your lunch or popcorn or candy.
3. Be prepared to discuss the Popov case
4. Bring your baseball glove if you wish

Two Things

1. We will have a pre-exam Q & A session on Thursday April 27 (t5his Thursday) from Noon until whenever in Room 113.

2. For those of you who are taking my Summer Con Law II class, the Assignments will be available at my Con Law class blog--Con Law Blog

Exam Info

The final exam is a 3 hour closed book examination.

No written or printed or digital or other materials allowed.

The essay portion of the exam must be answered on a computer using Extegrity Exam 4 "Closed Mode" software which you must have previously downloaded.

FYI: Nebraska RLUIPA Case Settled

US Justice Department just settled two significant RLUIPA cases including one out of Norfolk:

Justice Department Closes Investigation After Zoning Change Allows Church to Move Into New Facility

On February 13, the Justice Department closed its RLUIPA investigation of the City of Norfolk, Nebraska, after the city amended its zoning code to treat places of worship equally with various nonreligious uses.  The Department had opened the investigation after the city denied Our Savior Lutheran Church permission to move into a building it had purchased in an industrial zone.
In the fall of 2015, Our Savior Lutheran contracted to purchase a 60,000-square-foot former warehouse in an industrial zone in Norfolk.  The church had outgrown facilities it had occupied in Norfolk since the 1960s.  The city told the church, however, that it could not move into the site because it was a church, and churches are not permitted in the industrial zone.  However, the city permits various nonreligious assemblies operate as of right in the industrial zone, including business and civic associations, labor unions, daycare centers, athletic clubs, dance halls, and movie theaters.
In October 2016, the Department of Justice opened an investigation of the City of Norfolk under RLUIPA.  Section 2(b)(1) of RLUIPA states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 
On December 20, the City Council passed an ordinance that made several changes to the City’s zoning laws.  Among other things, the ordinance amended the land use matrix so that religious assemblies are now permitted as of right in the I-1 zoning district.  In light of these changes, Our Savior Lutheran Church is moving ahead with its plans to renovate the distribution warehouse and, after reviewing the changes, the Department closed its investigation. 

And another involving a mosque:

Justice Department and City Resolve RLUIPA Suit Over Mosque Denial

On March 10, a federal court in Michigan approved a settlement of the United States’ suit against the City of Sterling Heights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which alleged that the city illegally denied a mosque approval to build in the city.
The United States had filed suit on December 15 alleging that the city discriminated against the American Islamic Community Center (AICC) on the basis of religion when it denied AICC zoning approval for a mosque. The suit also alleged that the denial imposed a “substantial burden” on AICC’s religious exercise in violation of RLUIPA. The AICC, currently located in Madison Heights, Michigan, sought the Sterling Heights location because it is more centrally located for its members and its current space has become too small to accommodate its worship, educational and social needs.
On the day the settlement was announced, Acting Assistant Attorney General Tom Wheeler noted that “Federal law protects the right of faith communities to build places of worship without discrimination or unreasonable burdens on their religious exercise.  We commend the city of Sterling Heights for agreeing to approve the AICC’s mosque, so that it can serve its members and contribute to the surrounding community.”
RLUIPA provides a number of protections for places of worship, religious schools, and other religious uses of land from discriminatory or unreasonable zoning restrictions.  Further information about RLUIPA, including reports on its enforcement and Questions and Answers about its various provisions, may be found at the Civil Rights Division Housing and Civil Enforcement Section’s RLUIPA page.

Link

Class Cancellations

                                              My Chicago Descendant Celebrates a Pennant


             
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. Plus, with our extra class this week for the Poletown Documentary, we need to cancel 8 classes.


I am taking Con Law on the road to a number of law schools this Semester, so some of our cancellations will be used for these trips. Here are some dates that we will be cancelling class:


1. Wednesday Jan 25
2. Thursday Jan 26
3. Wednesday Feb 22
4. Wednesday March 8
5. Friday March 17 (per class vote)
6. Wednesday March 29
7. Wednesday April 5 (probably)
8. Thursday April 6

I just wanted to give you an advance heads up.

Schedule Adjustment

The Dean's Office needs Room 113 on Friday March 3 for a Law College Event.

So there will be no class on Friday March 3.

Instead, we will have a doubleheader on Thursday March 2: from 1:15 PM to 3:15 PM.

Sorry. Not my call.

Kanye West on Economic Liberty

@kanyewest recently tweeted a profound insight:

"What is your definition of true freedom? There is no true freedom without economic freedom."

He got over 25,000 likes.

 

SCOTUS Grants Cert in Important Takings Case

                                                    Art by Josh Duncan


By the way, Justice Scalia's death may lead to a 4 to 4 vote in  Murr v. Wisconsin, the denominator case I believe some of you are working on.. A tie vote in SCOTUS would result in affirming the state court decision in the case (but it would not be considered a SCOTUS precedent). That means the property owners would lose in this particular case, and the denominator issue would remain unresolved until a future case arises.



I am sure many of you are aware of this, but here are some links:

1. ABA Journal

2. PLF Press release

And here is a substantial quote from the ABA article:

Four siblings who own a vacation cabin by Lake St. Croix in Wisconsin will have their takings case heard by the U.S. Supreme Court.

The court agreed to hear the case earlier this month, the Milwaukee Journal Sentinel reports. The siblings are represented by the Pacific Legal Foundation.

The cabin and lot were purchased by the siblings’ parents in the name of the family business in 1960, according to the cert petition (PDF). The couple bought an adjacent land parcel in their own names in 1963 that, at the time, was sufficient for development. Zoning changes enacted in 1975 barred development on the adjacent parcel because of its size, but a grandfather clause created an exception for parcels that have separate ownership from adjoining land.

Because the siblings own both parcels, the second parcel is not eligible for development under the grandfather clause. The ordinance also prevents the siblings from selling the adjacent lot unless it is combined with the cabin lot.

The siblings claim the adjacent lot is the only relevant parcel for takings purposes, while the government says the combined lots are the relevant parcel.

PLF principal attorney John Groen commented on the case in a press release.

“We’re challenging a practice that is all too common among land use regulators, where they tell a landowner she can’t use her property, based on the excuse that she also happens to own a neighboring parcel,” Groen said. “By accepting this case, the Supreme Court has an opportunity to make it clear that government can’t cut off landowners’ constitutional rights based on how much land they own.”

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.