Kelo Soapbox

Ladies and gentlemen, here is your chance to express yourselves about Kelo and "eminent domain abuse." Is it an abuse of power to take land in order to improve the community by economic development?

Which of the opinions in Kelo did you find most persuasive? Why? Is this an activist decision?

I hope many of you will get up on this soapbox and write a comment.

Speak up. Fill cyberspace with your intelligence!

New Assignment

For next Thursday (Feb 2--Groundhog's Day), I want to focus on a brief overview of what some call "The Law of Sprawl," a body of law that is a very hot topic among "progressive" Property scholars who don't like the way people have migrated from urban areas to suburban communities.

Our assignment is to read Michael Lewin's article, "Teaching Law Students About Sprawl." Here is a link to the article (scroll down and download the full text of the article in PDF format from the Social Science Research Network).

The Spirit of Liberty on the March

From the Volokh Conspiracy blog:

BB&T, the nation’s ninth largest financial holdings company with $109.2 billion in assets, announced today that it “will not lend to commercial developers that plan to build condominiums, shopping malls and other private projects on land taken from private citizens by government entities using eminent domain.”

In a press release issued today by the bank, BB&T Chairman and Chief Executive Officer John Allison, said, “The idea that a citizen’s property can be taken by the government solely for private use is extremely misguided, in fact it’s just plain wrong. One of the most basic rights of every citizen is to keep what they own. As an institution dedicated to helping our clients achieve economic success and financial security, we won’t help any entity or company that would undermine that mission and threaten the hard-earned American dream of property ownership.”

A private lender taking a principled stand in favor of liberty. Wow! Global warming, schmobel warming. Hell just froze over!

Kelo

Update

I changed the date on this and moved it to the top so you can find it easier.

As you read the opinions in Kelo for Friday's class, ask yourself which opinion you find most persuasive, Justice Stevens' majority opinion, Justice O'Connor's dissent, or Justice Thomas' dissent.

Also think about this. We hear a lot these days about "judicial activism." Do you think Justice Stevens and the majority are acting as activists in Kelo? Is it activism when a court defers to the legislature? Is it activism to refuse to follow an express constitutional text designed to protect individual liberty? What is activism? Is it merely the way you describe the Court when it does something with which you disagree?

The opinion of the Supreme Court in Kelo is here.

Here is a recent NYT article that notes that:

They have still not moved out. Not Susette Kelo. Not the Derys. Not Byron Athenian or Bill Von Winkle or the others.

Five months after the United States Supreme Court set off a national debate by ruling that the City of New London could seize their property through eminent domain to make way for new private development, no one has been forced to leave.

No bulldozers have arrived to level the last houses still standing, and none are expected soon.

Even though the holdouts lost their case, and the development that would displace them finally seems free to go forward, construction has not begun, and some elements of the project have been effectively paralyzed since the court ruling prompted a political outcry.

The transcript of the oral argument in the case is here.

Here is a link to a recent NPR program on the post-Kelo flurry of legislation protecting property rights. Some say that this results in too much protection of private property rights (but can you really have too much of a good thing?).

Here is an article on Kelo by law prof Richard Epstein.

And here is an interview from Reasononline with Kelo's attorney Scott Bullock on what lies ahead for property rights in the wake of Kelo.

I am only assigning the opinion in the Kelo case. The other links are supplied for those who are interested in more depth.

Great Article About Baseball, Life Estates, and the Iran Hostages

You know how much I love baseball. This is a great article from the Washington Post about how a gift of a lifetime pass from Major League Baseball "helped Iran hostages reconnect with America." It is worth reading over the weekend.

What is the Source of our Rights and Liberties?

In the Palazzolo case, Justice Kennedy refers to an argument made by the State of Rhode Island that takes the position that "Property rights are created by the State" (p. 809) and, thus, what the State giveth the State can taketh away.

Do you agree with this view of the source of our liberties? Are our rights to freedom of speech, religious liberty, and equality also the mere creatures of the State?

Consider what the Declaration of Independence says about this issue:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

What are your thoughts?

Beach Day--Tomorrow

Hey, dudes. Forget about Christmas in July; tomorrow is day at the beach in January!

For tomorrow's discussion of Nollan v. California Coastal Commission you are all encouraged to come dressed for a day at the shore. Feel free to wear an Hawaii Print Shirt or bring a boogie board.

Also, think about the relationship between ends and means of a regulatory scheme. What does it mean when the Court says that there must be an "essential nexus" between the ends or goals of a restriction on beachfront development and a condition imposed on the grant of permission to rebuild?

Suppose I go to my doctor for, say, strep throat, and he treats me by putting a band aid on my big toe. Do the means (the treatment) bear a reasonable relationship to the ends (curing my strep throat)? In other words, is there an "essential nexus" between the treatment and the goal of curing my strep throat? What would happen to a doctor who practiced this kind of medicine? [Would he end up serving on the California Coastal Commission?] Think about my big toe when you prepare for our discussion of Nollan.

Welcome Back!

Welcome Back for 1L Spring Semester: The Sequel. To get you off to a cheerful start, here is a link to some great lawyer jokes. And here is one you may especially enjoy:

A paralegal, an associate, and a partner of a prestigious New York law firm are walking through Central Park on their way to lunch when they find an antique oil lamp. They rub it and a genie comes out in a puff of smoke.

The genie says, "I usually only grant three wishes, so I'll give each of you just one."

"Me first! Me first!" says the paralegal. "I want to be in the Bahamas, driving a speedboat, without a care in the world."

Poof. He's gone.

"Me next! Me next!" says the associate in astonishment. "I want to be in Hawaii, relaxing on the beach with my personal masseuse, an endless supply of piña coladas, and the love of my life."

Poof. She's gone.

"You're next," the genie says to the partner.

The partner says, "I want those two back in the library after lunch."

Nyuknyuknyuk!

Syllabus and Handouts

Available in the racks on South Side of second floor.

Additional Assignments

UPDATE --First Assignment For Spring Semester

For our first class next week, lets pick up where we left off. I believe we had covered through the Keystone case, so lets be prepared to discuss First English and Euclid and Nectow.

For those of you who want to read ahead a bit (something I don't recommend by the way), the next major assignment after we complete the Takings assignments, will be the Recording System (pages 1069-1127).

14. U.S. v. Causby (casebook p. 669-677)
15. Mahon case (casebook p. 745-749); Penn Central (casebook p. 754-769)
16. First English (casebook p. 749-754); Keystone (Handout 8)
17. Euclid and Nectow (casebook p. 693-706)
18. Loretto and Lucas (casebook p. 769-784)
19. Nollan and Dolan (casebook p. 784-803)
20. Palazzolo (casebook p. 803-814); Casebook p. 814-815
21. "Poletown Lives!!" documentary; Midkiff case and Poletown case (casebook p. 714-720)
22. Kelo (download opinion from link provided above)

Exam Info

Here is some information I mentioned at the review session yesterday.

The exam is closed book--you may not bring any written or printed materials to the exam.

Also, be sure to read the exam instructions carefully. Thery include a list of legal doctrines and rules that you should assume are in force (i.e.,default rules) unless a question otherwise indicates.

Good luck!

James Madison's Essay on Property

Here is a link to Madison's short, but very interesting, essay on Property and property rights.

Thanksgiving Assignment

Remember, we don't meet again until Wed. Nov. 30, when we will have a question /review session.

Here is your special assignment for Thanksgiving Day:

1. Sleep in
2. Spend time with family and friends
3. Eat lots of Turkey (or, roast lettuce if that is what you crave)
4. Watch lots of football (or if you prefer baseball, I heartily recommend the DVD of the 2004 ALCS featuring the greatest comeback in the history of baseball)
5. If you must work, watch the Hugh Grant-Emma Thompson version of Sense and Sensibility and brush up on the fee tail.

The New "Chief"

Since we are now reading opinions of SCOTUS (Supreme Court of the United States), I thought you might enjoy this article, by Linda Greenhouse in the NYT, about the impact of the new Chief Justice, John Roberts, on the culture of the Court.

Class Schedule

Update: Please notice additional class (Mon. Oct. 31) on which we will not meet (see below):

As we discussed earlier, because our class meets for 60 minute hours, we have 7 class periods to cancel. Here are 5 dates on which we will not meet:

1. Tuesday October 4

2. Wednesday October 12

3. Monday October 31

4. Monday and Tuesday November 21 & 22 (Thanksgiving Week)

Astros in Six

Sorry, Prof. Lenich, but I think the Astros will win the WS in no more than 6 games. They have an edge in starting pitching (Clemens, Pettitte, Oswalt) and a substantial edge in the bullpen.

It will be Astros in 5 or 6 games!

1917 is still a magic number.

Great Legal Blog

The one "must read" blog every day for a lawyer wanting to stay informed is Howard Bashman's How Appealing. Check it out and, if you like it, bookmark it.

Katrina and "Price Gouging"

Over at the Volokh Conspiracy, Todd Zywicki has an interesting post:

Walter Williams on "Price Gouging":

The people's economist, Walter Williams, patiently explains once again why limits on "price gouging" are counterproductive (I noted Georgia's "crackdown" on price gouging a week or two ago):

The fallout from Hurricane Katrina has featured a lot of ignorance and demagoguery about prices. Let's look at some of it. One undeniable fact is that the hurricane disaster changed scarcity conditions. There are fewer stores, fewer units of housing, less gasoline and a shortage of many other goods and services used daily. Rising prices not only manifest these changed scarcity conditions, they help us cope, adjust and get us on the road to recovery.
Here's a which-is-better question for you. Suppose a hotel room rented for $79 a night prior to Hurricane Katrina's devastation. Based on that price, an evacuating family of four might rent two adjoining rooms. When they arrive at the hotel, they find the rooms rent for $200; they decide to make do with one room. In my book, that's wonderful. The family voluntarily opted to make a room available for another family who had to evacuate or whose home was destroyed. Demagogues will call this price-gouging, but I ask you, which is preferable: a room available at $200 or a room unavailable at $79? Rising prices get people to voluntarily economize on goods and services rendered scarcer by the disaster.

He also explains why the cost that the service stations paid when the bought the gasoline is simply irrelevant:

What about the house you might have bought for $50,000 in 1970 that you're selling today? If you charged me $250,000 for it, today's price for its replacement, as opposed to what you paid for it, are you guilty of price-gouging?

What are your thoughts?

Property Rights

I believe that the institution of private property--and the vigorous protection of economic liberties and property rights--are what make men and women truly free. No liberty is safe in a society in which government controls property, because in such a society your ability to pursue happiness, support a family, work, have a home, and even worship God often depends upon the grace of those who from time to time hold the reins of political power. How much political freedom do you have in a society in which "getting ahead" economically depends upon your towing the party line of those who wield political power?

On the other hand, Professor Ely once said that "an absolute right of property...would result in the dissolution of society." What do you think Prof. Ely means? What kinds of social restraints on private property rights are acceptable in a free society? Which do you think is more important in a free society--economic autonomy or sexual autonomy? Why?

In this course, we will focus on the acquisition of property rights and on the "sticks" in the bundle of private property rights--possession, use, development, control, and transfer. We will also focus on the "public law" of private property: the constitutional protection of private property under the Takings Clause of the U.S. Constitution, as well as a number of federal civil rights laws protecting certain property rights from being abridged. I hope you enjoy the class!

By the way, what is property?