Today's Discussion on Covid Mandates

I enjoyed our discussion today about the Covid mandates vs. liberty and holding onto the things that make life worth living. Thank you for sharing so many good thoughts. 

Whatever your views about the mandates, I hope that you will not become too used to having your life so heavily regulated by government for such a long period of time. It is like boiling a frog slowly; you get used to the warm water as the heat slowly increases and the next thing you know you are boiled alive. Here is something Jefferson wrote to Abigail Adams in 1787:

"The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the Atmosphere."

 And here is something Reagan said along the same lines:

“Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men [and women] were free.”

See you tomorrow in class.

 

Green vs Green: Redwoods vs Solar Panels

 

Consider this property rights battle between next-door neighbors in the town of Sunnyvale, California. I am taking this story from Heller & Salzman's book entitled Mine! (at p. 153-160).

The Bissetts are environmentalists who love Redwood trees. Their neighbor, Mark Vargas, is "an equally proud green" who drives "an electric car and installed solar panels on his rooftop."

Can you sense what's coming?

Vargas installed his solar panels 5 years after the Bissetts planted their Redwood trees. But when the Redwood trees grew taller, they began to shade the solar panels on Vargas's rooftop. Vargas demanded that the Bissetts cut off the tops of their redwoods. The Bissetts refused.

How should the law resolve this conflict between two neighbors who wish to make ordinary but incompatible uses of their property? Should the law require the Bissetts to cut down their redwood trees? Or should the law permit the trees and leave Vargas to figure what to do about electricity for his home?

Great Resource for 1Ls

Legal Theory Blog: Legal Theory Lexicon

Money quote:

If you are a first-year law student, you might make a habit of asking yourself questions like the following:
Is the rule in the case I've just read, just or fair from an ex post perspective?
Will the rule produce good consequences (as compared to the alternatives) from an ex ante perspective?

Costs of Covid Restrictions and Mandates

Covid restrictions imposed great costs on many interests, including on property.

When thinking about Covid restrictions, we should focus not only on the benefits, but also the costs. Health "experts" tend to focus only on the benefits when proposing various restrictions. But what have been the costs?

All of the following are uncounted costs of the Covid Restrictions and Mandates adopted by government:

1. Right to Worship

2. Right to travel

3. Right of Social Contact (especially during the lockdowns when families were unable to come together)

4. Freedom of Expression (mask mandates literally cover your facial expressions--your smile, your frown)

5. Medical Privacy (take a look at your "Safer Community" app)

6. Livelihoods were destroyed

7. Small businesses were forced to close (some forever)

8. What are some others?

How long should these restrictions continue? Two weeks to flatten the curve? Two years? A decade? As Justice Gorsuch put it so eloquently in one of the church lockdown cases: “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.” 

Now think about this:

What about the litigation right now in which rental property owners are seeking to have the “eviction moratorium” declared unconstitutional?

Which side of this litigation is the social justice side?

What happens to a small landowner—maybe a retired mom and pop who own 10 apartment units and rely on rental income for their living—when their tenants stop paying rent and they cannot evict them because of the moratorium?

Who decides wherein lies social justice?

The Law College?

The ABA?

Or each lawyer fighting for his or her own idea of the common good and justice?

 

Assignment for Class 3 (Friday)

 Casebook p. 103-113 (Goddard and Eads) 

https://hoorayproperty.blogspot.com/2007/08/carol-rose-on-possession-as-origin-of.html 

Blog Posts For Class Two (Thursday)

 https://hoorayproperty.blogspot.com/2013/01/justice-scalia-on-1l-year.html

 https://hoorayproperty.blogspot.com/2007/08/should-courts-do-justice-or-apply-law.html

https://hoorayproperty.blogspot.com/2016/08/property-and-liberty.html 

https://hoorayproperty.blogspot.com/2013/08/does-label-ownership-have-any.html 

Masks, Liberty, and Personhood (Assignment For Class Number 2)

Masks--both physical masks and the "masks of the law"-- are actually a big part of the law of property. This is a huge social justice issue because legal masks have been used (in both the past and the present) to treat persons as non-persons. Our law school's values encourage us to include social justice issues in our classes so... Let's talk about this issue on Day Two of class. 

There may be sound reasons for mask mandates during a pandemic, but there are costs as well as benefits to such mandates.

David Marcus has this article.

And here is a powerful quotation:

One way to describe societies that decide to scrub away individual liberty is faceless; people are identical cogs without unique features. Here we move from the symbolic to the literal as people hide their faces from the world. The most important thing about these people is now that piece of fabric and the compliance it indicates. There will be no smiling.

Mask mandates seriously (and literally) abridge the freedom of expression.

Imagine emoji faces—frowning, smiling, laughing, angry—now imagine if the law required all emoji faces to be covered by masks. If all emojis were required by law to be masked, there would be no emojis. Just identical, faceless ink blots. 

 

We used to say that a "face to face" meeting is an in person meeting (as opposed to a teleconference); but a zoom meeting without masks is much more face to face than is a masked (literally faceless) meeting.

There are physical masks and there are masks that the law creates--legal fictions--to conceal the person beneath the legal mask.

These masks of the law are used to conceal the humanity of those the law wishes to treat harshly. Slaves were masked as "property" to conceal their humanity. Unborn babies are masked as "potential lives" by Roe v Wade and the abortion liberty. Masks--whether physical or legal--conceal the face (and thus the humanity and individual personhood) of the person behind the mask. 

Here is a video of a CLE I gave last year--at the Nebraska Bar's Annual Meeting--on how the masks of the law can be used to treat persons as nonpersons (as property) when the law wishes to act harshly and unjustly:

https://use.vg/jQuD5e

 In this video (which I am assigning), I discuss how the masks of the law enabled slavery in the past and abortion in the present. The idea is not so much to debate legal abortion as to understand how the masks of the law can be used to obscure the reality and human dignity of human persons. Let's discuss these issues of "persons masked as property" on our second class in Property.

Also read Casebook p. 1-18 (for background) for this class.

Assignment For our First Class: Let's Talk About Diversity, Inclusion, Free Speech, Academic Freedom, Justice, and Courage

I want to start off Fall 2021 with a class discussion about whether diversity includes viewpoint "diversity" and whether inclusion means "inclusion" of everyone, left, right, and center. Meriwether v. Hartrop is especially important because of its powerful protection of free speech on campus and in the classroom. Your first assignment will be to read and think about the following linked blog posts. Here are the links:

https://hoorayproperty.blogspot.com/2021/04/developing-inclusive-leaders-in-law.html

https://hoorayproperty.blogspot.com/2021/04/prof-robert-george-on-slipping-into.html

https://hoorayproperty.blogspot.com/2021/04/meriwether-v-hartrop-compelled-pronoun.html

https://hoorayproperty.blogspot.com/2021/02/social-justice-and-property-law.html

https://hoorayproperty.blogspot.com/2021/02/philadelphia-statement-on-free-and-open.html

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

 

 https://hoorayproperty.blogspot.com/2021/05/if-you-are-censored-or-cancelled.html

 

https://hoorayproperty.blogspot.com/2021/05/inclusive-leadership-two-hypos-for-1ls.html

 

https://hoorayproperty.blogspot.com/2021/06/how-inclusive-leaders-can-disagree-with.html 

 

Let's have a great discussion!

The Little Red Hen (Folk Tale Classics) (Paul Galdone Classics)

 My all time favorite Property book for children is The Little Red Hen by Paul Galdone. I bought a copy for my grandchildren. This book is more important today than ever!

Here is the Amazon summary:

 

 Little Red Hen is a time-tested cautionary tale about how we reap what we sow. When the hen asks a cat, dog, and mouse for help planting some wheat, she gets no takers: "‘Not I!’ said the cat. ‘Not I!’ said the dog. ‘Not I!’ said the mouse." They won’t water, cut, or grind the wheat . . . or help bake a cake with it, either. So guess who eats the cake by herself in the end? Caldecott Honor artist Paul Galdone’s delightfully detailed ink and wash illustrations—packed with charming details—add plenty of sly humor to the well-loved story that not only offers a sage message but also shows children what it takes to make a cake from the ground up!

Link

Covid Protocols Fall 2021

 I am copying below the new Covid protocols announced today by Chancellor Green.

Since I am fully vaccinated, I will not wear a mask in class. Wearing a mask makes it almost impossible for me to teach to the best of my abilities. However, anyone who wishes to wear a mask (or two masks), is welcome to do so.

Here are the new guidelines:

Use of Personal Protection

As noted previously, our classrooms will return to full in-person capacity this Fall, as will our dining halls, Campus Recreation, Unions, Libraries, and other public spaces.

Those who are fully vaccinated are not required to wear face coverings, but are strongly encouraged to do so indoors. You have likely read that the CDC recently advised fully vaccinated individuals to wear face coverings indoors in areas of substantial or high transmission (which is the current status in Lancaster County). As cases of the Delta variant increase in Nebraska, we will continue to closely coordinate with LLCHD and will adapt if needed and necessary should directed health measures change.

Anyone who is unvaccinated remains susceptible to infection, particularly the highly transmissible Delta variant, and is expected to wear a face covering. If you are unable, or unwilling, to protect yourself and others with a vaccine, it is critically important that you utilize other protective measures.

We know that there are many in our community who have family members who are unable to be vaccinated. Instructors who face these circumstances (e.g., with family members too young to be vaccinated) may request that face coverings be worn in their classes.

People may choose to wear a face covering for a variety of reasons, so no one should assume that someone who wears one is unvaccinated. Respect and grace for each other have been essential elements of our successful management of the pandemic thus far. I ask everyone in our community to continue to show goodwill toward others as we continue to face this challenge together.

 

At the end of the day, the best thing anyone can do to maximize individual liberty and minimize the risks of Covid is to get vaccinated. 

I try to always remember: "People willing to trade their freedom for temporary security deserve neither and will lose both." --Ben Franklin