Diversity, Inclusion, Freedom of Speech, and Academic Freedom: My Policy

 Each member of this class is welcome. No one is more welcome than anyone else, and no one is less welcome than anyone else. Each of you is equally welcome. Each of you is privileged to be entering into a noble profession and vocation in the law. You should be proud of this privilege because you have earned it by hard work, good choices, and by making the most of your natural abilities. Welcome!

Diversity, Inclusion, Freedom of Speech, and Academic Freedom: The gold standard for diversity and inclusion is intellectual and viewpoint diversity in a wide-open academic marketplace of ideas. Here are my thoughts (quoted from the Princeton statement) on diversity, inclusion, freedom of speech, and academic freedom in academia:

Education should not be intended to make people comfortable; it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom. Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn.

I also endorse this statement (Link) from University of Chicago:

Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

This commitment demands that the University create a climate of respect, civility, and inclusion. We must be an intellectual community where all scholars feel welcome, heard, and encouraged to do their best work. Students, faculty, and staff all play pivotal roles in creating this environment where ideas are challenged, new fields of inquiry are defined, and [both] conventional wisdom [and new theories] are questioned.

That is how I try to teach my classes. All views relevant to the issues we are discussing are welcome. But all views are debatable. In a country as diverse as ours, there are competing versions of social justice, competing versions of what is true, what is good, and what is beautiful. 

The way to deal with ideas you disagree with is counter-speech, not censorship. Inclusion means inclusion, not exclusion. To be an inclusive leader you must always be open to the ideas of others. Debate yes. Censorship never. As the editors of Public Discourse have said: “We believe that disagreement is not something to avoid. In fact, a real and productive disagreement is an accomplishment. Civilization, in the end, is formed by men and women ‘locked together in argument.’”

The worst form of censorship is self-censorship, when you silence yourself because you fear being bullied or cancelled by your "friends." Inclusive leaders in the law don't self-censor. The best advice I have ever heard about when to speak out is this: Be silent when you want too badly to speak, and speak out when fear whispers "be silent." Always be civil but always be unafraid to speak out when you have something to say.

But remember, education is about debate and critical analysis of ideas. Persuasion--not censorship--is the goal of education. The cancel culture is anathema to academia, and to the values of diversity and inclusion. As Aaron Burr sings in Hamilton: An American Musical: "I should've known the world was wide enough for both Hamilton and me; the world was wide enough for both Hamilton and me."

Something to Think About As You Prepare for the Study of Law

  "Chesterton says that a society is in decay when common sense has become uncommon, when straightforward ideas start to appear strange and unfamiliar, and the crooked conventions of the day and the fads and fashions of the moment seem more acceptable, even more urgent."--A Wise Commentator

Now consider this statement from Orwell's great novel, 1984: 

"Freedom is the freedom to say that two plus two make four. If that is granted, all else follows."

But suppose an authoritarian government decides that two plus two make five, compels citizens to affirm this governmental newthink, and forbids anyone to deny it. Can you think of any examples of this in the modern world?

Inclusive leaders read banned books

 

 

The new book burning is when Amazon or another tech oligopolist cancels a book (or other expression) that offends cultural elites. As one commentator has said, in a way this is "a good sign because it means books have power. When people burn books, it's because they're afraid of what's inside them.”

You should buy and read canceled books. Don't let Amazon control what you read and what you can learn. Inclusive leaders read banned books. 

 "Where they burn books, they will also ultimately burn people."--Heinrich Heine

For new 1Ls: "How to Read a Legal Opinion: A Guide for New Law Students"

You can download a free copy of Orin Kerr's article on reading cases at this link: here

Review Session--Saturday April 27 at 1:15

                                      Me at Notre Dame, Paris 2015


We will have an exam Q & A session on Saturday April 27 in Room 1:13 at 1:15 PM.

Exclusionary Zoning and Little League Baseball

Here is a link to an incredible article about exclusionary zoning and, incredibly, little league baseball.

Here are some money passages from the article:

In one of the country's richest towns — where Mercedes, BMWs and Land Rovers cruise tree-lined streets of multimillion-dollar homes — a man who proposed building more accessible housing says angry neighbors took out their frustration on his son: a 9-year-old boy who was demoted to a lower-level Little League team.

Christopher Stefanoni says in a federal lawsuit that residents of Darien are so worried that affordable housing will draw black people to town that they'll do just about anything to stop it, including using his son to retaliate against him. Town and Little League officials say that's completely false.

Stefanoni said he has had three affordable housing proposals rejected by the town. They include a 16-apartment complex with five affordable units and a 30-apartment development with nine affordable units. A court sent both of those back to the town's planning and zoning commission for review and approved a third. The commission cited traffic safety and other concerns.

The lawsuit includes allegations about city officials blocking affordable housing applications to keep blacks from moving into town, claims identical to those in another pending federal lawsuit against the town by a different affordable housing developer whose project was rejected.

Rob Williamson, owner of Uncle's Deli in downtown Darien, said he doesn't believe the town is being discriminatory in rejecting affordable housing applications.

"The town's small, very tight knit," the resident of nearby Stamford said. "That doesn't mean we want to keep anyone out. It's a small, little New England town and I think they want to keep it that way."

 Now, don't rush to judgment. Maybe the kid can't hit a 40 mph fastball. All we have at this stage is Dad's allegations. But still....

Restrictive Covenants Barring Residence by Convicted Sex Offenders

Over at the PropertyProf blog, there is a very interesting post about covenants being used to forbid convicted sex offenders from living in residential developments. Here is a key excerpt:

Common interest community covenants against registered sex offenders appear to be spreading like wildfire -- I've seen quite a few press reports about them in the past couple of months. As far as I know, only one case has considered the validity of such a covenant, Mulligan v. Panther Valley Property Owners Assn., 766 A.2d 1186 (N.J. App. Div. 2001).

In Mulligan, the court rejected what essentially was a facial challenge to the covenant, but left open the possibility that an anti-sex-offender covenant might (or might not) be found to be invalid in a case with a more developed record if the plaintiff could show that "a large segment of the housing market [was] unavailable to one category of individual" or that "the Association performs quasi-municipal functions, such that its actions perhaps should be viewed as analogous to governmental actions in some regards."

 The post also contains a well-drafted covenant of this type.

Recording for April 4 & 5 Classes

A number of you called in sick today (and for tomorrow as well) so I asked IT to record the classes.

Good Afternoon,

                Here is the requested link to your recording (April 4):

https://unl.box.com/s/k1lvatiqmvcd0vbmiuvq16oe7lphmced

Richard McDermott

- Technology Support Specialist - University of Nebraska College of Law


 

                Here is the requested link to your recording (April 5):

https://unl.box.com/s/qmd6wrrwi5olzqwlmnpwq2vdao3olt48

Richard McDermott

A Word About Easements and Licenses

                       Hayes Carll "Bad Liver and a Broken Heart" Live in Chicago May 2019


I am aware that we went through this material fairly quickly.

My goal was not to go into great depth about the details of all the rules and doctrines, but rather to expose you to the basic types of easements and the legal vocabulary. I also wanted to use the cases to show you how easement issues can arise because of inattention and sloppiness when land deals are put together.

I think we accomplished those goals, and the Hornbook ought to provide some extra coverage of the basic rules and doctrines.

On to a discussion of covenants running with the land, a subject I approach from the perspective of liberty.

Gotham Times Article on Increased Housing Segregation

link

Here is a money quote:

As a report by Kendra Bischoff of Cornell and Sean F. Reardon of Stanford pointed out last year: “The proportion of families living in affluent neighborhoods more than doubled from 7 percent in 1970 to 15 percent in 2009. Likewise, the proportion of families in poor neighborhoods doubled from 8 percent to 18 percent over the same period.”

This is consistent with a 2012 Pew Research Center report that found, “Residential segregation by income has increased during the past three decades across the United States and in 27 of the nation’s 30 largest major metropolitan areas, according to a new analysis of census tract and household income data.”

The report added, “The analysis finds that 28 percent of lower-income households in 2010 were located in a majority lower-income census tract, up from 23 percent in 1980, and that 18 percent of upper-income households were located in a majority upper-income census tract, up from 9 percent in 1980.”

As Richard Florida wrote in The Atlantic last month, “The poor face higher levels of segregation in larger, denser metros.” In affluent cities, he said, “The segregation of poverty is more pronounced,” adding, “The poor also face greater levels of segregation in more advanced, knowledge-based metros.”

According to a study published last year in the journal Education and Urban Society, “Students are more racially segregated in schools today than they were in the late 1960s and prior to the enforcement of court-ordered desegregation in school districts across the country.”

In fact, a report last month by researchers at the Civil Rights Project of the University of California, Los Angeles, found, “New York has the most segregated schools in the country.”

Martin Luther King Jr.’s dream about the coming together of children of different races seems, in some ways, to grow more faint.

Today--5 Minutes Late

I will be about 5 minutes late for class today.

I have a short task I have to perform at 1:15.

Willard Diagram

Estoppel and Part Performance

Assume A orally agrees to grant his neighbor, B, a perpetual right-of-way easement over A's property Blackacre from B's property Whiteacre. B spends $5000 grading the right-of-way and putting down some gravel. After a few years, A informs B that he is no longer allowed to use the right-of-way on Blackacre.

The doctrines of estoppel and part performance are equitable doctrines which take an oral easement out of the Staute of Frauds. In other words, the oral easement will be recognized in equity which, in order to do justice, will "block the Staute's application." (Hornbook at 457).

Estoppel Theory

Hornbook p. 458: "If this theory is employed, one reasons as follows: the oral grantor represented to the grantee that he had an easement...upon the grantor's land; in reliance upon the representation, the grantee expended money or labor or made improvements upon or with reference to the easement...--detrimental reliance; and therefore, the grantor became estopped to deny the easement."


Part Performance Theory

Hornbook at p. 458: "The same facts that invoke the estoppel theory will usually support the equitable part performance theory. Here the reasoning is that the oral grantee's acts, making improvements of a kind one would make if one had an easement...,give tangible evidence, independent of the spoken words, that such an interest exists. The acts themselves 'speak of' an easement...; the trier of fact need not rely on the oral statements alone." In other words, the acts of part performance substitute for a writing to demonstrate or prove the existence of the easement.

Oral Licenses

But now suppose the oral promise is "I hereby give you permission, revocable at will, to use my land for a right-of-way." The licensee spends money constructing the right-of-way. The above doctrines allow an oral easement to be given effect in accordance with the oral promise notwithstanding the Statute of Frauds. But should those doctrines be used to transform a revocable oral incense into an irrevocable perpetual easement? Does justice require forcing a "grantor" to give much more than he promised to give?

As Prof. Clark Once put it: "Instead of the picture of the licensor prevented by the courts from taking advantage of his own fraud, it is suggested that a truer picture is that of a kind, neighborly individual who finds himself outwitted, under this rule of law, by a clever land-grabber."

What do you all think?

Pound Lecture Wednesday March 27 at Noon!!!!

I am requiring the class to attend the Pound Lecture on Wednesday March 27 at Noon in the Auditorium. The lecture is property related--Corporate Purpose in a Populist Era, by one of the leading Corporate Law Profs in the country, Prof. Stephen Bainbridge.

Note: By a unanimous vote of the class, we will account for the required Pound Lecture by cancelling class tomorrow--Thursday March 14.

HAPPY SPRING BREAK

"Ryan the Lion" at the Bar

This was an ad I saw on a bus in Dallas over Spring Break.  No comment.

Class Schedule

                                               Katie Duncan with her Paint, "Easy" Duncan

We have 8 classes that need to be canceled (7 because of our 60-minute classes and 1 because of our double-header for Poletown Documentary).


Here is what I know so far about class cancellations:

1. Wed-Fri February 20-22
4. Friday March 15
5.Wednesday April 3
6.Wednesday April 10
7. 
8.


The class we missed last week due to my flight being cancelled (Wednesday January 23) will be made up with a review session we will have shortly before our final exam. And also by your attending The Pound Lecture in March (which I am requiring).

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.