Originalism vs. The Living Constitution: Questions for Discussion

 

1. What is original meaning originalism? What is The Living Constitution? Prof. Gary Lawson says "Interpreting the Constitution is no more difficult, and no different in principle, than interpreting a late-eighteenth-century recipe for fried chicken." Suppose your great-grandmother's written recipe for fried chicken calls for half a teaspoon of "pepper." But maybe you like rosemary more than pepper. If you substitute rosemary for pepper, are you being faithful to great-grandma's recipe? Or are you amending it? How does the Constitution provide for amendments? Suppose your will provides a legacy for "Planned Parenthood." Would it be legitimate for a judge to re-interpret your will by substituting "National Right to Life" for Planned Parenthood because she prefers the former to the latter? If we are faithful to the rule of law, how should we interpret recipes, wills, statutes, and the Written Constitution?

2. Justice Scalia says that originalism is the lesser of two evils, the librarian who speaks too softly rather than the librarian who speaks too loudly. He argues that the greatest defect of the Living Constitution—its total reliance on the subjective moral and philosophical preferences of the nine unelected lawyers who serve on the Supreme Court from time to time—is its incompatibility with the Rule of Law, “the very principle that legitimizes judicial review of constitutionality.”

What do you think he means by this? What is the Rule of Law and how does it differ from the Rule of Man?

3. Defenders of the Living Constitution argue that the Living Constitution is consistent with the Rule of Law because it has developed as a kind of common law system under which the "content" of constitutional law "is determined by the evolutionary process that produced it."  It is evolution, not creation, and therefore the Supreme Court does not act as a Creator, or Ruler, but merely as a body of judges presiding over this "evolutionary process through the development of a body of precedents." 

 

Or is this a theory of "turtles all the way down," the idea that the earth rests on the back of a giant turtle. But what supports that turtle? Of course, the answer is a larger turtle which itself is part of a column of increasingly large turtles that continues "all the way down." Today's judicial decree is supported by yesterday's judicial decree which is supported by earlier judicial decrees all the way down. The written constitution is replaced with an evolutionary process of judicial amendments which bind Congress, the fifty state legislatures, and all 330,000,000 American citizens!

4. Proponents of the Living Constitution say that this approach is necessary because it is too difficult to amend the Constitution under Art. V, and thus common law evolution is necessary to provide the flexibility that is necessary in order for the law to keep up with the changing needs of contemporary society.

Which constitution is more flexible? The original Written Constitution? Or the living, evolving, common law constitution?

5. When the Court comes up with a novel new doctrine, ask yourself this question: Was there ever a time in American history when this new doctrine could possibly have been ratified by three-fourths of the states (38 states today)? In 1789? In 1868 when the 14^th Amendment was ratified? In 2018? Ever? If your answer to this question is "no"--a doctrine like this could never have been ratified by we the people in the states (whose act of ratification is what gives legitimacy to the Constitution)--what does this tell you about the legitimacy of the Court's new doctrine?

 

6. "In a world where individuals have very imperfect barometers of the good—both because of passions and limited perspective—it is better to rely on the meaning of a constitution created by consensus, at least until another consensus is forged to change it." --Prof. John McGinnis Do you agree or disagree? Why?

The Librarian Who Speaks Too Softly or Too Loudly

 Justice Scalia argued that Originalism was the lesser of two evils, the librarian who speaks too softly rather than the librarian who speaks too loudly. What do you think he meant by this?

I think Judge Posner's defense of the Living Constitution as a common law constitution perhaps best explains Scalia's view. Judge Posner recently explained that constitutional law is a body of law that is "legislative in character, [with] the judges being the legislators."

Do you agree with Posner's view of the Living Constitution and the role of the judiciary in legislating constitutional law by a common law process?

Is this view consistent with the Rule of Law? Or is it the Law of Rulers?

Is there any objective way to critique living constitutional decisions? If the Living Constitution is subjective, whatever 5 Justices say it is, how can a lawyer argue that the decision is wrong as a matter of law? You can say "I don't like the result" but how can you say the decision is legally wrong?

 If the Constitution is not law, just subjective results, why should citizens respect the Court's decrees?

What is the difference between a common law constitution and the common law of property, torts, and contracts?

Exam Review: A Second Chance

 Today, Monday January 19, I will walk the class through the Fall exam. 

I know several of you have tested positive for Covid and can't be in class today. I am not recording today's class because of exam security. However, in a couple of weeks I will do this again for those of you who are unable to attend today. Probably sometime in early February I will schedule Room 113 for a second hour and that second hour will be your second chance exam review session for those unable to attend today.If you are unable to attend today--and if you wish to walk through the Fall exam with me--make sure you attend the second chance exam review session.

Judge Bork on "The Temptaion of the Judiciary"

 Consider this gem from Judge Bork:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Is the Living Common Law Constitution consistent with this role of the judge in a democratic republic?

In Person Classes Back On!

 Nevermind!

I feel silly having to change things again, but the University has now adopted its 4th Covid policy in the last 10 days. The new policy permits teachers to teach unmasked as long as they can maintain a 6-foot distance from students. Dean Moberly has informed me that he is “fine with [my] teaching without a mask in 113 as long as [I] keep 6 feet from the students. The floor is marked.”

So, forget about Zoom classes; we are back live and in person in Room 113 every class.
Thanks for your patience. See you in class! And stay 6-feet away from me!

Rick Duncan

Can the Supreme Court Violate the Constitution?

 We have a written constitution and it binds all branches of government. Consider this excerpt from Paulsen & Paulsen (p. 26):

No branch of the federal government--not the Congress, not the President, not even the Supreme Court--can legitimately act in ways contrary to the words of the Constitution...Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy. In America, no branch of government is supreme...The Constitution is supreme....Departures from these limitations are unconstitutional.

In Marbury v Madison, Chief Justice Marshall said "that the framers of the constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature." The idea here is that of the supremacy of the Written Constitution, not of the Supreme Court. In other words, even (particularly) SCOTUS is bound by the text of the Constitution.

It is the text of the Written Constitution that has been ratified by we the people in the states. Supreme Court decisions are only legitimate if they are faithful applications of the constitutional text.

Something to think about as we take our first look at the Written Constitution.

Mid-year Exam results Fall 2021

                                                       

                                                           I Love This Sign

 

 Everyone qualified for 25 points for attendance. Here are the results of the Midyear exam (out of a possible 100 points):

1 Student scored 100 points (Bravo!!!)

2 Students scored 96 points

3 Students scored 92 points

10 Students scored 88 points

 8 Students scored 84 points

 4 Students scored 80 points

 4 Students scored 76 points

 7 Students scored 72 points

 12 Students scored 68 points
 

10 Students scored 64
 

2 Students scored 60 points

 

6 Students scored 56 points

2 Students scored 52 Points
 

2 Students scored 48 Points

3 Students scored 40 Points

 

1 Student scored 28 points

 

1 Student scored 24 points

The test median was 68 points. The Mean was 70.64.

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.  

We will go through the exam on our first class back in Spring 2022.

Two Things For Spring Semester

 I just had an opportunity to read the evaluations, and I am quite pleased that most of you enjoyed the class. That’s great because it gets better! Or at least the issues we cover become more relevant to contemporary life. The first half of Spring Semester is a mini-course in constitutional law as it impacts on issues of property. So, get ready for a great ride.

I want to focus on two things several of you commented on—“organization” of reading assignments and outside office hours.

1. Some of you would like the syllabus to list particular dates for particular readings (instead of just telling you to always stay one full assignment ahead). I get this, but the problem is there is no way I can predict how long it will take to get through each assignment. I don’t move on to the next assignment simply because the clock runs out. I teach until I feel the class is ready to move on. So, one assignment on RAP might take 2 to 3 class sessions. I will try to make sure you know where we are on the reading—maybe a blog post after each class telling you where we are going tomorrow (I usually tell you that at the end of class, but I will try to get out a quick blog post as well). But the default rule will always be "stay one full assignment ahead." In other words, if we got half-way through assignment 10 from the syllabus today, make sure you have read through assignment 11 for tomorrow.

2. Outside office hours in the courtyard. Some of you want office hours in my office. I get that. But due to all the mandates, I work mostly from home. My thoughts for Spring (aka Winter) Semester are two-fold. I will hang around at the front of the room after each class for maybe 15 minutes or so. If you want to talk, don’t approach the desk (you gotta stay 6-feet away from me), but wait until the room clears out and sit in the second row or so. Then we can discuss your questions in Room 113 and I can teach from a 6-foot distance without wearing a mask. Second, I gave you my cell phone number and I am always available—night or day—for a telephone conversation. Do not hesitate to call me. Text me first, and I will call you back immediately or suggest a time for the call. I do not mind being called. I enjoy talking with students, so you should not hesitate to call me if you have a question or want to discuss something.

Just a note on courtyard office hours--my impression is more students took advantage of courtyard discussions this year than of regular "office hours" in past years. It was a rare day no one came to the courtyard, and we would often still be chatting an hour after the end of class. I really enjoyed these sessions. Even after Covid is a distant memory, I will have courtyard office hours during the Fall and the warmer part of Spring semester. I really enjoy chatting with y'all. And no office is as good as the great outdoors in beautiful Nebraska!

$30 Trillion

As our national debt is about to hit $30 trillion, I looked to Charles Dickens for wisdom.

And I found it in chapter 12 of David Copperfield. In the words of Copperfield's friend, Mr. Micawber:

'My other piece of advice, Copperfield,' said Mr. Micawber, 'you know. Annual income twenty pounds, annual expenditure nineteen nineteen six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the God of day goes down upon the dreary scene, and--in short you are forever floored.'

New Year's Resolutions For Students

 Prof. Robby George of Princeton, offers these resolutions for his students:

Students: May I suggest a couple of New Year's resolutions? 1) If you don't have a smart friend who disagrees with you about important things that you deeply care about, make one. 2) Resist groupthink and self-censorship. Think for yourself; seek the truth; speak your mind.

 

Great advice from one of the greatest political philosophers of his generation.

Con Law Seminar Blog

Link

 

Canvas

Dobbs v. Jackson Women's Health Organization and the Abortion Liberty: Something to think about over the break

 I am not--not--assigning this for our course. But I know many of you are very interested in this case and in the abortion liberty. Here are some resources you may wish to consult over the Winter Break.

Here is a link to Oyez on Dobbs

This includes a link to the oral argument in the case. The oral argument was very interesting. It runs about 2 hours, but it is worth your time.

And here is how Oyez summarizes the case:

 

Facts of the case

In 2018, Mississippi passed a law called the “Gestational Age Act,” which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order (TRO). After a hearing, the district court granted the TRO while the litigation proceeded to discovery. After discovery, the district court granted the clinic’s motion for summary judgment and enjoined Mississippi from enforcing the law, finding that the state had not provided evidence that a fetus would be viable at 15 weeks, and Supreme Court precedent prohibits states from banning abortions prior to viability. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Question

Is Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age unconstitutional?

 

The Supreme Court will decide the case in 2022, probably at the end of June or early July.

And remember, both sides of this issue are pursuing social justice and life, liberty, and equality for all. They just have competing visions of what is at stake, competing understandings of the good. The mission of the Law College does not pick ideological sides. We  encourage all of our students to pursue life, liberty, and equality based upon your own vision of social justice.

 

Art Can Speak Volumes Without a Single Word

Updated Version of Edward Hopper's Nighthawks: Fear vs living life without demanding zero risks

Merry Christmas and Happy Holidays.

Violent Political Protest and the State's Obligation to Protect Private Property

 As we get ready to enjoy our Winter Break, let me ask you this question: Is violent political protest--burning buildings, looting stores and shops, and assaulting those who disagree with you--a legitimate form of political protest? Ever? Sometimes? When? To protest police brutality and racism when an unarmed suspect is killed by police? When protesting the violent death-by-abortion of 60 million unborn children? When protesting the results of an election?

 Should government stand down, stand by, and allow such politically-motivated violence to take place? 

Sadly, this is a question that must be posed in contemporary America. It directly relates to property and the obligation of the state to protect our property and our businesses from unlawful violence and destruction. When protest takes the form of violence, it is no longer political speech protected by the First Amendment; it is criminal behavior that destroys the property, businesses, and livelihoods of others.

Please think about it as you prepare to become inclusive leaders protecting the rule of law and  justice-for-all.

Mid-year Exam Announcements

 

 

1. I have scheduled a Q & A session for Monday December 13 at 6 PM in Room 113. It is, of course, optional. But if you have questions, please come and I will try to answer them.

2. On the first class of Spring semester (Wednesday January 19, 2022), we will go over the exam so you can see what you got right and what you got wrong. There will be no assignment for that class.

See you on December 13!

Lol: Plumber Finds $600,000 Buried In Bathroom Wall At Lakewood Church Could the plumber have claimed, finders keepers?

 Here is Prof. Josh Blackman's article (dated today--12/3/21):

https://reason.com/volokh/2021/12/03/plumber-finds-600000-buried-in-bathroom-wall-at-lakewood-church/

Optional Reading Over the Winter Break

 In Spring Semester, we start off with a fairly deep dive into some constitutional law topics relating to property. The first topic we will will discuss is what some call the great debate between Original Meaning Originalism and the Living Constitution. Ilan Wurman has written an excellent introduction to originalism that should help you understand contemporary battles in the Supreme Court.

I am not assigning this book, just suggesting it for some good reading over the Winter Break. The book is both short and readable (and inexpensive). Here it is (Ilan Wurman, A Debt Against the Living: An Introduction to Originalism):

https://www.amazon.com/Debt-Against-Living-Introduction-Originalism/dp/1108412165/ref=sr_1_1?keywords=Ilan+Wurman%2C+A+Debt+Against+the+Living%3A+An+Introduction+to+Originalism&qid=1637711519&qsid=137-0178584-2236403&s=books&sr=1-1&sres=1108412165&srpt=ABIS_BOOK

You Did It!

  

                                         My Twin Grandchildren, Delaney and Duncan Carlson

 

 You survived the First Semester of Property. No class tomorrow, which means we are done for the semester.

I really enjoyed this year's Property class. This might be the last time I teach Property, and it has been a lot of fun. I am impressed with what I have seen so far, and I look forward to learning how you all do on the midyear exercise.

Keep watching the blog for an announcement of our pre-exam Q & A session.

Have a great Thanksgiving. Spend time with family and friends.

Mercer v. Wayman (p. 428)

 This case once again demonstrates the need for wills. Do you suppose John Mercer, who died intestate survived by 5 sons, two daughters, and his widow, would have wanted his farm to be owned in cotenancy by so many heirs? 

Or would he have wanted the farm to go to his son, Fred, maybe with a life estate for his (i.e. John's) widow (Fred's mother)? 

I don't know, but it would have been nice if John Mercer had a lawyer advise him about estate planning and then draft a will carrying out John's estate plan.

Notice the issue in this case involves what the law requires when one cotenant claims his sole possession of the property amounts to adverse possession against one or more of his cotenants. The issue is primarily about when the possession of one cotenant becomes "open and notorious" as to other cotenants.

Laura v. Christian and Economic Relations Between Cotenants

 We could spend several weeks studying all the complexities of the economic relations between cotenants.

In general, when a cotenancy comes to an end—usually in a partition action—there will be an accounting to settle up the economic relations among the cotenants. Some may have contributed more than their share to the upkeep of the property; some may have collected more than their share of the rents or profits. And all of these economic matters will be settled equitably by the court, as part of the accounting, when the property is sold and the proceeds of the sale are distributed to the cotenants.

Basically, that is all you need to know for purposes of this course. Just be aware of the need to settle all accounts equitably when the cotenancy is terminated.

Laura v. Christian (p. 420)

Pl (Laura) and three others owned Blackacre as tenants-in-common subject to a mortgage. The parties defaulted on their mortgage payments and the mortgagee (probably a bank) instituted an action to foreclose the mortgage. A foreclosure sale was ordered and Laura paid off the mortgage loan in full in order to protect the property from a forced sale upon foreclosure.

Who is suing whom for what in this case?

What is Laura's position? What is Christian's (Laura's co-tenant) position?

Exam Instructions

 

Final Examination

Wednesday, December 15, 2021

One (1) Hour Thirty (30) Minutes Exam 4 - CLOSED mode

BE SURE YOUR EXAMINATION IS

COMPLETE

 

Exam Number                    

 

 

 

 

 

 

 

INSTRUCTIONS

 

1.              This is a 90 minute closed book examination. You may not have any written or printed materials with you while taking the examination nor may you consult any written or printed materials before turning in all portions of the examination.

 

This exam should be taken using Exam 4 in CLOSED mode.

 

No cell phones or other unauthorized electronics are allowed in the exam room.

 

2.              Be sure that you have all pages of the examination question sheet.

 

3.              Be sure to place your examination number (not your name) on page 1 of this question sheet and on the answer sheet.

 

4.              Part II of this examination consists of multiple choice questions that must be answered in Exam 4 by clicking on the Multiple Choice tab at the top of the screen. Click the “Hide” button to toggle back to the essay page for Part I of your exam.

 

5.              If you finish the exam more than five minutes early, you can turn in your exam in the Dean's Office. Otherwise, you must turn in your exam in this room -- regardless of where you take the exam.

 

6.              You must return the exam questions.

 

7.              It is an Honor Code violation to reproduce or retain a copy of any portion of this exam.

 

  8.              Unless otherwise indicated in the questions, answer the questions in accordance with traditional common law rules and principles. In particular, unless otherwise indicated, you  should consider the following to be in force:

--Statute De Donis Conditionalibus

--Statute of Uses

--Statute Quia Emptores

--Rule in Shelley's Case

--Doctrine of Worthier Title

--Destructibility of Contingent Remainders

--Doctrine of Merger

--Rule Against Perpetuities

--Ordinary deed capable of creating any type of future interest which could be created by a conveyance operating under the Statute of Uses.  

 

9.              Your score will be based solely on the number of correct answers. It is therefore to your advantage to answer all questions. This examination counts for a total of 100 points and each question is of equal weight.

 

1.      

Remember there will also be 25 points allocated for attendance. So the exam counts for 100 points, but an additional 25 points can be earned by affirming attendance. Part I of the exam is where you will be asked to affirm your attendance.

 

1.     

Thinking versus Feeling: Something to Ponder Over the Weekend

Prof. R.C. Sproul has written something I think captures the essence of real education:

"I used to get cantankerous with my...students when I would ask for their opinion about a particular issue and they would answer 'Well. professor, I feel such and such is the truth.' I would reply, 'I did not ask you how you feel about it; I am asking what you think.' Conviction of truth is not a sensual matter; it is primarily the assent of the mind."

Something to think about as we enjoy a 3-day weekend.

Have A Great Weekend

 Remember, no class tomorrow. Let's celebrate a belated Veterans Day holiday tomorrow.

And vets in the class--thank you for your service and your sacrifices!

Wednesday November 10 Is Evaluation Day

 On Wednesday November 10, I will leave you alone for the first 15 minutes of class to give you time to complete the evaluations.

I will show up at 1:30 PM.

Profs. Robby George and Cornel West on Truthseeking and Democracy

 

 

 

If you are looking for something to do over the 3-day weekend, here is a link to an intresting program at Cornell Law School:

Truth-Seeking, Democracy, and Freedom of Thought and Expression

Check it out! Robert George and Cornel West discuss Truth-Seeking, Democracy, and Freedom of Thought and Expression as part of The Peter ’69 and Marilyn ’69 Coors Conversation Series. Click here to view the recording.

Exam Tip: Take Advantage of the Blog Posts

 

As I have said before, I am not a big fan of outlines. I think outlines are overly simplistic and don't provide what you really need to know to prepare for a law school exam. I have never written an outline in my life!

I am a big fan of good notes, notes that are based upon our class discussions. So, I really encourage you to take good notes, and to copy and paste helpful excerpts from the blog posts. In the old days, those blog posts were just rough notes that I used to discuss in class. Some people were able to take good notes on our discussions and hypos; but some were not able to do so. It is difficult to listen and write at the same time. So, I wrote my notes up into what I hope are lucid blog posts, and everyone gets equal access to what I am trying to teach. One good study habit is to transcribe your notes soon after the class in which you took them (while still fresh in your mind). And consolidate your notes with helpful excerpts from the blog posts. 

If I were taking the exam in my course, I would take advantage of the blog. That is the first place to go when you are trying to master a case, an issue, a doctrine, or a particular estate or future interest that we have studied in this course.

Friday October 29: Assignment

For tomorrow, please read assignment 14:

 14. Casebook p. 355-370; Handout 6; Hornbook P. 97-113 (Sections 3.17 to 3.22)

Don't spend too much time on the Shaver case (p. 361). It raises issues about options to renew leases which we will not be getting into. We will not cover this case in class nor will I hold you responsible for it.
The only thing to notice about this case is FN 24 on page 363 which quotes the Uniform Statutory Rule Against Perpetuities.

Schedule: Pre-Made-Up Days

 Let's use 2 of our pre-made-up days to cancel these two Friday classes:

1. November 5

2. November 12 

You can go home and visit your family for a nice long weekend!

Executive Summary: The Doctrine of Worthier Title

 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.

Notice it is a rule of construction not a rule of law. Thus, if the Grutz conveys “to A for life, remainder to my heirs in Fee Simple Absolute,” the rule should not apply and Grutz’s heirs should take a contingent remainder.

Nebraska Law: Inter Vivos Branch of Doctrine Of Worthier Title

76-115. Inter vivos conveyance to the heirs or next of kin of the conveyor; effect.

When any property is limited, in an otherwise effective conveyance inter vivos, in form or in effect, to the heirs or next of kin of the conveyor, which conveyance creates one or more prior interests in favor of a person or persons in existence, such conveyance operates in favor of such heirs or next of kin by purchase and not by descent.

Suppose Grutz conveys "To Denicola for life, then to my [i.e. Grutz's] heirs"

What is the state of the title under this statute?

Under the Doctrine of Worthier Title?

Intersting Article Today in NYT

 Today's Times has an article by Thomas Edsall about differences between Liberals and Conservatives that strikes me as relating quite a bit to issues of property and wealth issues. Here is the link:

 https://www.nytimes.com/2021/10/20/opinion/conservatives-liberals-happiness.html

 And here are some interesting passages that relate to property and equity issues:

 

Liberals, Schlenker and his co-authors agree,

have become less happy over the last several decades, but this decline is associated with increasingly secular attitudes and actions (e.g., less religiosity, less likelihood of being married, and perhaps lessened belief in personal agency).

They go on:

Conservatives generally score higher on internal control as well as the Protestant Work Ethic, which emphasizes the inherent meaningfulness and value of work and the strong linkage between one’s efforts and outcomes, and is positively associated with achievement. Liberals, on the other hand, are more likely to see outcomes as due to factors beyond one’s personal control, including luck and properties of the social system.

These differences have consequences:

Perceptions of internal control, self-efficacy, and the engagement in meaningful work are strongly related to life satisfaction. These differences in personal agency could, in and of themselves, explain much of the happiness gap.

So too, in their view, does the liberal inclination to view morality in relative, as opposed to absolutist, terms, have consequences:

A relativist moral code more readily permits people to excuse or justify failures to do the ‘‘right’’ thing. When moral codes lack clarity and promote flexibility, people may come to feel a sense of normlessness — a lack of purpose in life — and alienation. Further, if people believe there are acceptable excuses and justifications for morally questionable acts, they are more likely to engage in those acts, which in turn can create problems and unhappiness.

Perhaps most significant, Schlenker, Chambers and Le found that while both liberals and conservatives place a high value on fairness, they have diverging definitions of the concept:

Liberals define fairness more in terms of equality (equal outcomes regardless of contributions) and turn to government as the vehicle for enforcing social justice and helping those in need. Conservatives define fairness more in terms of equity (outcomes should be proportional to contributions), rely on free markets to distribute outcomes, and prefer individuals and private organizations, not government, to contribute to the care and protection of those in need.

 

A few things to think about when we get tired of mastering remainders.

Class Schedule: Cancellations

 As we have discussed, we have an extra 9 scheduled class hours that need to be canceled. Here are some dates I already know about for cancelled classes:

1. Wednesday October 13 (I am speaking at BYU Law on Tuesday and taking a red-eye home)

2. Thursday October 14 (by class vote)

3. Friday October 15 (I am speaking at the Nebraska Bar Annual Meeting)

4. My current plan is to cancel the last week of class to give you additional time to get ready for exams)

 

Have a great Fall Break from Property next week.

Estates and Future Interests

Some of you are looking for an additional reference for estates and future interests. Perhaps the best book on estates is:

Sheldon F. Kurtz, Moynihan's Introduction to the Law of Real Property (5th ed. 2011).

This should be available in the library at the Reserve desk.

By the way, the subject of the picture immediately above is Blackacre of Hickman, my all-time favorite estate in Fee Simple Absolute.