Recording of Today's Class (Thursday March 7)

Several of you missed class today because of snow. I asked Richard to record it:

Good Afternoon,

                Here is the requested link to your recording:

https://unl.box.com/s/3qxt57rx070zsmlsbinfiy2hfzayoiai

Richard McDermott

Link to Recording of Friday's Early Class

        Here is the requested link to your recording:

https://unl.box.com/s/wi1zu31g01ulo7b36g8xsna40oc67149

Richard McDermott

1L Scheduling Survey

Please comment below--we are interested in your views.

Here are some of the options:

1. Faculty is committed to ensuring that no more than 4 classes will be scheduled for any one day

2. Should classes be 50 minutes three times a week, 60 minutes three times a week, or 75 minutes twice a week.

60 minute classes allow 7 classes to be cancelled without make-ups.
75 minute classes allow zero classes to be cancelled--make-up classes (for snow days, holidays, days when professor has a conflict) will be required (probably on Saturdays or nights)

3. should International Perspectives course be moved to 2L year and Criminal Law moved to Spring Semester.

4. Any other scheduling concerns.

Class Friday March 1

This Friday (March 1) our class will meet from 12:15 to 1:15 (instead of from 1:15 to 2:15). I have to catch a flight to NYC for a debate at Fordham Law School.

I will have IT record the class and post a link for those of you who have a conflict.

Greetings From Texas

I am a poor selfie photographer, but here I am at the Joe Ely show just outside of Fort Worth, Texas.

I missed the snow, but I will be back next week.

I am in the Building! See y'all at 1:15

Snow doesn't bother me!

Liberty in an Age of Security

Rand Paul on airport security and our loss of liberty:

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?”

Quiet Prayer Meetings in Private Homes as an Actionable Private Nuisance

Once a week for 20 to 25 cars. Here is a general definition:

Private Nuisance

A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.
Examples of private nuisances abound. Nuisances that interfere with the physical condition of the land include vibration or blasting that damages a house; destruction of crops; raising of a water table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance may also disturb an occupant's mental tranquility, such as a neighbor who keeps a vicious dog, even though an injury is only threatened and has not actually occurred.

I am not aware of any case where a large, once-a-week social gathering of friends in a private home has been found to constitute a nuisance. A fraternity house that has many noisy parties dragging on late into the night, perhaps. But a quiet prayer meeting from 4 to 6 PM every Sunday, even if it brings 20 or 25 cars onto the public roads of a residential neighborhood, no way.

You could bring the action and pay a lawyer $200 an hour to represent you, but if you win I will root for the Yankees for the rest of my life. It is not the Murphys who are acting unreasonably here. It is their overly-sensitive neighbors.

Prove me wrong.

Interesting RLUIPA Case

Religious freedom includes the right to make wine and beer. Illinois county board settles suit under Religious Land Use and Institutionalized Persons Act allowing a Catholic organization a brewery and winery. Court lambastes objectors’ religious animus.

 

Link

Zoning Out Religious Use

Over at the Religion Clause blog there is an interesting post about the clash between zoning laws and religious land use.

Here is the post:

"An article in yesterday's Lancaster (PA) Sunday News raises an interesting religious land use issue posed by the apparently growing practice of churches renting out movie theaters for use for religious services on Sunday mornings. The zoning rules in Manheim Township, Pennsylvania permit theaters and other commercial uses in industrial zones, but not churches. Township zoning officials have issued a notice of violation to the owner of the Penn Cinema who rents out his theater each Sunday to the Crossings Church. Theater owner Penn Ketchum argues that renting out the theater for a church service does not change the character of the building. He argues: "While they're finishing up their service, we're literally opening our doors to the moviegoing public."... At no time do we cease to be a movie theater. We continue to be well within our parking ratios, as well as building capacity. The service still leaves literally 90 percent of the building unoccupied.... To me there's a big difference between a church and a church service.'"

There is a great deal of hostility in many communities toward religious land use, and a recent federal civil rights law has altered the playing field between regulators and religious land users. This is one of the most important and interesting property issues under modern law. Our study of this issue is one of the highlights of the course for me.

RLUIPA and the Compelling Interest Test

The key to understanding Constitutional Law is to understand the various "standards of review" the Court applies to various claims of constitutional rights. Consider this:

STANDARDS OF REVIEW


I. MINIMAL SCRUTINY (DEFERENCE)

Rational Basis Test - The government classification need only be rationally or conceivably related [Means] to any legitimate state interest [Ends].


II. INTERMEDIATE SCRUTINY (SKEPTICISM)

Intermediate Scrutiny Test - The government restriction must serve important governmental objectives [Ends] and must be substantially related to the achievement of those objectives [Means]. ["Intermediate scrutiny always asks is there some less restrictive alternative available?" Epstein, Takings at 138.]


III. STRICT SCRUTINY (CYNICISM)

The governmental restriction must be necessary (i.e., the least restrictive means) [Means] to achieve a compelling state interest [Ends]. See Nowak at 530.

Rabbi With a Zoning Dispute

Small religious assemblies also have zoning problems.

Later this week, we will be studying clashes between religious liberty and property regulations. Here is a case from a few years ago.

From the Religion Clause blog:

This week's New Jersey Jewish Standard reports on a zoning dispute in Teaneck (NJ) over the use by a rabbi of his home for religious services. The house was purchased in October 2007 by Etz Chaim of Teaneck which hired Rabbi Daniel Feldman as its leader and rented the house to him. Feldman began in November to hold services in his living room. Neighbors petitioned the township, but it took no action, apparently in reliance on a 1985 New Jersey Superior Court case, Farhi v. Comm'rs of Deal [Lexis link], that held the state's constitution prohibits a municipality from using its zoning power to prohibit the free exercise of religious activity in the privacy of one's home.

On July 18, Feldman moved the services from his living room to his family room. The township's zoning ordinance requires a zoning permit where there has been a "change in use" of a piece of property. Neighbors filed a second petition saying that the July 18 move of the services-- now attended by 20 to 25 families-- was a change in use. Feldman says that the services on Friday evening and Saturday morning (as well as holidays) only total about 5 hours per week-- about 3% of the time-- too little to constitute a change in use. In a letter, however, the Teaneck zoning officer told Feldman to cease and desist from using the premises as a house of worship or place of public assembly. Feldman, who argues that this is still merely a protected private prayer group, has filed an appeal with the township zoning board.

Snap Quiz on The Godfather and Exactions

 "Some day, and that day may never come, I will call upon you to do a service for me. But until that day, consider this justice a gift on my daughter's wedding day."

Don Corleone did indeed call on Bonasera to do a service for him. What service did Bonasera perform for the Don?

Stuck Inside of South Bend With the Lincoln Blues Again

My flight home from Notre Dame today was cancelled due to bad weather.

Thus, no class tomorrow (Wednesday January 23).

Stay warm and safe.

Let's Vote

                                           Justice Thomas at Nebraska Law


Today (Wednesday January 16) you vote to choose the date we will cancel to make up for last Thursdays double class.

Choose well.

Poletown Lives Documentary

In case you missed today's class showing of Poletown Lives, here is a link from the library you can use to access it online:

Poletown Lives:
https://unl.box.com/s/rz2hh2hb2kzf75v9k48gdxem5ufekbrv

A Modest Proposal

Sunset Meadows photo by Hannah Duncan
 

Why not change the law of Takings to require more than "Just Compensation" when property is taken without the consent of the landowner. Why not adopt a rule requiring government to pay some multiple of fair market value (perhaps twice or thrice)? This would recognize that when landowners are evicted from their own property they suffer more than mere economic loss; they also suffer dignity harm and what tort lawyers would call "pain and suffering and emotional distress" damages, which in fairness should also be compensated. What are your thoughts?

Evolution or Creation?

Some commentators reject an originalist theory of interpreting the Constitution in favor of a theory that views the Constitution as a living, breathing, evolving organism. For example, Prof. Erwin Chemerinsky says that "nonoriginalists believe that the Constitution's meaning is not limited to what the framers intended; rather, the meaning and application of constitutional provisions should evolve by interpretation." Justice Stevens seems to be adopting this theory of interpretation in Kelo when he talks about the "always evolving needs of society" producing a "more natural" interpretation of "public use" as "public purpose." See p. 795.

Is this really a theory of evolution? Or is it more honestly a theory of creation? How does the Constitution "evolve" into a new species in so brief a time? Surely, the sudden appearance of new constitutional rules in the fossil record is best explained by a theory of intelligent design, of Creation if you please, by shifting Supreme Court majorities. Thus, when Prof. Chemerinsky says that new constitutional rights "evolve by interpretation" what he means is these new constitutional species are called into being by judicial decisions (intelligent design) written by a Creator consisting of no fewer than 5 unelected lawyers serving lifetime appointments on the Supreme Court.

When the Court speaks of the Constitution evolving is this really an attempt to mask or conceal "what's really going on" as Marvin Gaye might have put it? Why doesn't the Court simply admit that it is making up new constitutional provisions when it calls into being some new rule never intended by the Framers?

Is the Supreme Court's job to amend or re-write the Constitution? Or should the Court faithfully apply the written Constitution ratified by we the People?

Mid-Year Exam Results: Fall 2018

                                               Justice Gorsuch (Art by Josh Duncan)


                                       


Here is the breakdown for the Midyear Exercise:

  3 Students scored 100 points

  4 Students scored 96 points

  5 Students scored 92 points

  2 Students scored 88 points

  7 Students scored 84 points

  3 Students scored 80 points

  9 Students scored 76 points

  5 Students scored 72 points

  9 Students scored 68 points

  3 Students scored 64

  5 Students scored 60 points

 

  6 Students scored 56 points

  2 Students scored 52 Points
 

  2 Students scored 48 Points

  1 Student scored 44 Points

The test median was 74 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.

Thursday Jan 11--Let's Play Two for Ernie Banks

Notice--Thursday Jan. 10-- we will have a double class session (from 12:15 until 2:15).

We will watch a Takings film and then discuss the public use requirement under the Takings Clause.

Poletown Case

Here is a brief summary of the Poletown case from Wikipedia (link):

Poletown East is a neighborhood area of Detroit, Michigan bordering the enclave city of Hamtramck. The area was named after the Polish immigrants who originally lived in the area. A portion of residential area known as Poletown became the Hamtramck auto assembly plant in 1981 with those residents relocated by the city of Detroit which claimed eminent domain in order to make way for an automobile plant.[1]

First settled in the 1870s when the first waves of Polish immigrants came to Detroit, Poletown was the heart of Detroit's Polish community for many years. The nucleus of the community was the St. Albertus Catholic Church, which opened in 1873 and closed in 1990. Poletown experienced its greatest period of growth during the 1920s and 1930s as thousands of Polish immigrants came to Detroit in search of jobs in auto plants and the slaughterhouses that were in the area. Poletown was not only home to Poles, but also to Italians and Blacks. During the 1950s and 60s however, Poletown fell on hard times as freeway construction and urban renewal projects destroyed the neighborhood.

In 1981 the neighborhood was cleared to make way for the construction of the heavily subsidized General Motors Detroit/Hamtramck Assembly plant. The city of Detroit spent some $200 million on land acquisition. It used the power of eminent domain to evict the 4,200 people who lived in the area, along with their 1,300 homes, 140 businesses, six churches and a major hospital.^[2] The plant was built at the boundary of Hamtramck and Detroit as a BOC factory (Buick-Oldsmobile-Cadillac) and became known as the "Poletown Plant". However, the rosy projections of 6000 jobs did not materialize. Employment at the new plant never exceeded half of that number. In the long run, General Motors had to file for bankruptcy.

The displaced residents sued the city to prevent the taking of their properties, arguing that this was a taking for private purposes, not for "public use" as required by the [Michigan] Constitution. However, a divided Michigan Supreme Court ruled that economic development was a permissible use of eminent domain. Public resistance especially from one Catholic parish led to national news attention and the involvement of Ralph Nader and the Gray Panthers. A 29-day sit-in at the Immaculate Conception Church came to an end on July 14, 1981 when police forcibly evicted 20 people from the church.

The decision of the court became a landmark case for "public use" eminent domain matters, and simultaneously a poster child for eminent domain abuse. The decision was overruled by the Michigan Supreme Court in the 2004 decision County of Wayne v. Hathcock. (Although the 2005 United States Supreme Court decision in the case of Kelo v. City of New London states that the use of eminent domain to promote economic development is constitutional on a federal level, the opinion in Kelo cites the Hathcock decision as an example of how states may choose to impose their own restrictions on the taking of property.)

And here is another brief summary of the Poletown decision and its subsequent overruling by the Michigan Supreme Court (link):

The Poletown case
In 1981, the Michigan Supreme Court decided one of the most controversial cases involving eminent domain. In that case, the city of Detroit had seized thousands of homes, businesses, and churches in an area called Poletown (named for the large Polish population in that area) so that General Motors could build a plant on the site. The city claimed that the “public use” limitation was met by virtue of the fact that the new plant would “create jobs” and increase the city’s tax base. Opponents contended that this wasn’t truly a “public use” because the property owners’ property was simply being taken from them to be given to General Motors.
The Michigan Supreme Court ruled in favor of the city, and the effects of that decision rippled out nationwide. As an article posted on NationalReviewOnline entitled “This Land Is Your Land,” by Timothy Sandefur, observed,

Eminent domain, once limited to public uses like roads or post offices, was unleashed in the service of any well-heeled private party able to persuade the local government to see things its way. In the years since Poletown, eminent-domain abuse has exploded nationwide. As Ramesh Ponnuru has pointed out, powerful corporations frequently send representatives to lobby cities for “free” real estate. The city takes a neighborhood, usually of modest homes, and gives it to a developer or a megastore, and then rakes in the higher taxes. The only losers are the home- and small-business owners, who lack the political influence necessary to persuade local officials to respect their rights. Poletown has become the leading symbol of eminent-domain abuse.

In other words, what began as a power to seize property on which to build courthouses and police stations was extended to seizing and redistributing property to alleviate “blight” and then extended again to seizing and redistributing property to improve the economy and the government’s tax base. Of course, a cynic would be forgiven for concluding that the power was being used to take property from those who lacked political influence in order to give it to well-heeled, politically powerful friends of government officials.

A trend toward property rights
In July 2004 the Michigan Supreme Court overturned its infamous decision in the Poletown case. In Wayne County v. Hathcock, the county had condemned private property for the purpose of giving it to a private developer, arguing that the project would serve the public good through jobs and economic prosperity. The court held that the Poletown case had been wrongly decided and that the “public use” power could not encompass the taking of one person’s property for the purpose of giving it to another person. The August 4, 2004, issue of the Detroit News editorialized,

Michigan’s Supreme Court restored the sanctity of private property rights by reversing a quarter-century-old ruling that allowed the city of Detroit to uproot families and businesses in the Poletown neighborhood so General Motors Corp. could build a factory on their land. The original case was a blow to constitutional protections. The new, unanimous ruling restores the concept that government can’t just take away private property because it thinks someone else might use the property better. . .. Municipalities and developers can adjust. Wayne County is going ahead with the Pinnacle Park project. The developers will now have to work harder to obtain rights to land from private owners and pay a higher price. But few constitutional rights are as important as private property rights. The court, in bringing Michigan back into compliance with the intent of the Constitution, served Michigan property owners well.

Property Review Videos

Prof. Dale Whitman, one of the great Property scholars, has released a series of review videos on 1L Property topics. I have not had a chance to watch these, so I can't personally vouch for them. But Prof. Whitman is top-notch. Here is his description of them:

The videos are mostly 15 to 20 minutes in length, and are in the form of narrated slide shows. They might be helpful to law students in reviewing a topic immediately after it is covered in class, or in preparation for an exam. Below is an index of all of the videos posted so far.

1. Adverse possession – introduction
2. Adverse possession – elements
3. Adverse possession – conditions that inhibit or prevent AP from arising
4. Adverse possession – tacking, constructive AP, and AP of personal property
5. Interests in land
6. Fee simple absolute and defeasible
7. Fee tail and life estate
8. Introduction to future interests
9. Remainders and executory interests
10. Class gifts
11. Executory interests
12. The Rule against Perpetuities
13. Review of estates and future interests
14. Restraints on alienation
15. Waste

I hope you will find the videos useful, and if you feel so inclined, will recommend them to your students. Please feel free to check out one or more of them in order to evaluate their quality.

I’ve used the title “ProfDale’s Property Videos” to describe all of the videos, and you can easily find them all by searching on YouTube for “ProfDale”. (It’s not case-sensitive.) Here’s a link to one to get you started:

https://www.youtube.com/watch?v=FzyxNCMupJY&t=217s&list=PLgEQKqmnB5J6n35DByEBB1_6JDJUcgcfS&index=3

And here’s a link to a playlist that contains all of the videos:

https://www.youtube.com/playlist?list=PLgEQKqmnB5J6n35DByEBB1_6JDJUcgcfS

I’ll keep adding to that playlist as I produce additional videos.

I post them for your consideration. If they help you, great. If not, move on. I am not assigning them.

Exam Review Session

 Chief Justice John Jay says "Property Review Session has been scheduled"

Sunday December 9 at 1 PM in Room 113.

Landmark Preservation Laws: Something To Read Over The Break

Now New York City wants to make it official by declaring the Strand’s building, at the corner of Broadway and 12th Street in Greenwich Village, a city landmark.

There’s only one problem: The Strand does not want the designation.

Nancy Bass Wyden, who owns the Strand and its building at 826 Broadway, said landmarking could deal a death blow to the business her family has owned for 91 years, one of the largest book stores in the world.

So at a public hearing on Tuesday before the city’s Landmarks Preservation Commission, her plea will be simple, she said: “Do not destroy the Strand.”

 Here is a link to the article:

Gotham Times on Landmarking The Strand Bookstore


Here is another article on this issue.

Hornbook on Assignments and Subleases

It may help you to read sections 6.67 through 6.71 in the Hornbook.

I did not specifically assign these sections, but you may find them helpful.

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.