"Speak Up, Mr. Hart...

fill the room with your intelligence."

Wow! The best law school series ever broadcast--Paper Chase--is about to come out on DVD.

Put this one up on your Netflix queue!

If you can get past the 70s hippy look of the 1Ls, you will love this series. Prof. Kingsfield is tougher than even Braveheart.

Property Videos Available Online

From the Volokh blog:

Institute for Justice Videos:

The Institute for Justice -- one of the nation's top libertarian law firms -- has some short videos out on their favorite constitutional law cases. IJ has long been first-rate not just at litigating their cases, but at using them to promote libertarian legal ideas to the public, so these should be much worth watching (and forwarding). Here are IJ's quick summaries, with links:

1. The Little Pink House & Property Rights: ... Susette Kelo in her historic fight against eminent domain for private gain.

2. Economic Liberty & the 14th Amendment: Should it take seven years and a team of lawyers to open as small business? That is the reality, so long as courts ignore the Privileges or Immunities Clause of the 14th Amendment.

3. Footloose in Arizona -- A Funny Look at Petty Government Actions: Can you imagine a government threatening fines of $500,000 on a small business for allowing patrons to dance outdoors? Enjoy this fun animated take on the Saga of San Tan Flat.

4. School Choice: Should Only the Government Get to Pick Your Kids’ School? Andrea Weck from Arizona is like millions of parents nationwide; she wants to get her children the best education possible, but finds some people think that only the government —- and not parents -— should select the schools children attend.

5. Free Speech & Campaign Finance Restrictions: Does the First Amendment protect the right to free speech? Not always. Today, campaign finance laws are being used to stifle political speech and participation.

6. Eminent Domain for Private Gain in New Jersey: Does the 5th Amendment protect private property rights? Lori Vendetti [talks] ... about eminent domain in her ocean-front town of Long Branch, N.J.

For more information on any of the cases related to these videos, visit http://www.ij.org/cases.

NASA "Global Warming" Satellite Crashes

Link. Excerpt:

VANDENBERG AIR FORCE BASE, Calif. – A rocket carrying a NASA global warming satellite has landed in the ocean near Antarctica after a failed launch.

The Taurus XL rocket carrying the Orbiting Carbon Observatory blasted off early Tuesday morning from California's Vandenberg Air Force Base. But launch managers say that several minutes later, the payload fairing, which shelters the satellite, apparently failed to separate from the launch vehicle.

Hmmm. This could have been a finders case if it had fallen on land.

I await the NY Times article claiming that global warming caused the crash (as well as the collapse of the NY Yankees in the 21st Century)!

New Book on Kelo

Over at the Volokh blog, Ilya Somin has an interesting review of a new book on Kelo (excerpt):

Telling the Kelo Story - Jeff Benedict's Little Pink House:

People interested in property rights issues generally or Kelo v. City of New London specifically should definitely read Jeff Benedict's new book, Little Pink House. Kelo generated a broader political backlash than any other modern Supreme Court decision, and Benedict's book is by far the most thorough account of the development project and condemnations that led to case.

Benedict doesn't focus much on the legal issues involved, which have already been beaten to death by a small army of legal scholars (myself included). He does, however, provide an in-depth account of New London's decision to condemn the plaintiff's homes and other property in order to promote "economic development" and the course of the political and legal struggle between the two sides. Although Benedict's sympathies are clearly with the property owners, he also conducted numerous interviews with the lawyers and officials on the other side, so their perspective gets extensive coverage in the book. For example, he provides a fascinating portrait of Claire Gaudiani, president of Connecticut College and of the New London Development Corporation - the quasi-governmental entity that decided to go forward with the condemnations.

More Schedule Changes

There will be no class on the following dates:

1. Wednesday February 18. I am teaching an "honors" undergraduate class on the Establishment Clause, so we won't meet on this date. Let's celebrate the life of Braveheart himself, William Wallace, a son of Alba and a lover of liberty.

2. Friday March 13, the Friday before Spring Break. Let's celebrate the life and ideas of one of my all time favorite home schooled philosophers and lovers of liberty, John Stuart Mill.

Sex Offender Residency Laws

From the PropertyProf blog:


"The New York Times has a story that describes the consequences of Iowa's sex offender residency rules:

The men have flocked to . . . rural motels and trailer parks because no one else will, or can, have them. A new state law barring those convicted of sex crimes involving children from living within 2,000 feet of a school or day care center has brought unintended and disturbing consequences. It has rendered some offenders homeless and left others sleeping in cars or in the cabs of their trucks."

Should we care? If so, what should we think about this?

Here is an excerpt from the NYT piece:

CEDAR RAPIDS, Iowa — One cornfield beyond the trim white farmhouse where the Boland family lives and a road sign warns, "Watch for children and dogs," is a faded motel.

For years a layover for budget-conscious motorists and construction crews, the motel has lately become a disquieting symbol of what has gone wrong with Iowa's crackdown on sexual offenders of children. With just 24 rooms, the motel, the Ced-Rel, was home to 26 registered sex offenders by the start of March.

"Nobody wants to have something associated with sex offenders right beside them," said Steve Boland, a farmer and father of two who learns about his newest neighbors every few weeks when sheriff's deputies stop by with photographs of them.

"Us showing the kids some mug shots sure wasn't going to help," Mr. Boland said. "How were they going to remember that many faces?"

The men have flocked to the Ced-Rel and other rural motels and trailer parks because no one else will, or can, have them. A new state law barring those convicted of sex crimes involving children from living within 2,000 feet of a school or day care center has brought unintended and disturbing consequences. It has rendered some offenders homeless and left others sleeping in cars or in the cabs of their trucks.

Happy Ronald Reagan Day!

Friday February 6 is Ronald Reagan's Birthday. The Gipper was a great President, the best of my lifetime!

Enjoy your day off!

"Above all, we must realize that no arsenal, or no weapon in the arsenals of the world, is so formidable as the will and moral courage of free men and women. It is a weapon our adversaries in today's world do not have." --President Ronald Reagan

"General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and eastern Europe, if you seek liberalization, come here to this gate. Mr. Gorbachev, open this gate. Mr. Gorbachev, tear down this wall!"--President Ronald Reagan winning the Cold War

Energy Policy and Property

Some interesting property issues in this recent Weekly Standard piece by Irwin Stelzer:

Looking Green, Feeling Blue
Environmentalist dreams collide with economic reality.
by Irwin M. Stelzer
01/27/2009 12:00:00 AM

The environmentalists, or at least some of them, have fired a warning shot across the bow of Obama's mighty ship of state as it sails "to the shores of need, past the reefs of greed," as Leonard Cohen's perversion of Wordsworth would have it. They have expressed extreme unhappiness with the failure of the stimulus package to include many of the 800 items they had hoped to see in it when they sat down in their office to unwrap it. There is, from the green point of view, worse. During the campaign and the transition Joe Biden promised that there would be no more coal plants built in the United States; greener-than-green Henry Waxman wrested the chairmanship of the House Energy and Commerce Committee from the sensible John Dingell; Carol Browner, "an acolyte of former Vice President Al Gore", according to the New York Times, was named White House coordinator of energy and climate policy (aka "czar"); Harvard University physicist John Holdren, a long-time advocate of measures to combat climate change was picked to be the President's science adviser; and Steven Chu, the Nobel prize-winning physicist and advocate of biofuels and solar power, was named to be Secretary of Energy. There are others, all of this green persuasion, all able, all darlings of the environmental movement, all expected to favor sun and wind over nuclear and coal. So far, so green. But responsibility brings with it doubts, and politics in the form of Democratic senators from coal-producing states brings with it moderation. So environmentalists were horrified when Dr. Chu told senators during his confirmation hearings that he planned to fast-track the development of nuclear plants, accept oil and gas drilling as part of an overall energy package, and would support new coal-powered electric-generating plants even before research into "clean coal" technology bears fruit. So here we are. Lots of talk about smart grids, solar and wind power, lots of environmentalist appointees -- and an administration still groping for an energy policy that is feasible -- allows for a sufficient increase in the supply of energy to sustain economic growth while at the same time reducing the emission of greenhouse gasses. This means that it is an administration that will soon be at war with part of the environmental movement, and learn that although it controls the White House and the congress, it cannot control environmentalists' use of the courts to stall and in many case kill the development of new sources of energy. Various environmental groups have already used the courts to force the cancellation of over 50 coal plants. They have used the courts to prevent the opening of the Yucca Mountain nuclear waste repository. Local groups in the not-in-my-backyard camp have used the courts to prevent the construction of wind farms, with the Kennedy-led opposition to Cape Wind, the project within sight of their Hyannis Port compound, the most famous. And they are increasingly concerned about the amount of land needed for large-scale solar installations. There is an additional obstacle to the new President's realization of his 25-25 goal: 25 percent of the nation's power to come from renewable sources by 2025. People do not tend to live in windy places, a few hardy Scots being the exception. Nor do they tend to seek out homes in the desert, unless, of course, they can have access to huge amounts of electricity to run super-sized, energy-guzzling air conditioning systems. In short, renewable sources of energy are remote from the population centers where that energy is needed. Which means that large, high-voltage transmission lines must be built from wind farms and solar sites to major cities, often across beautiful parts of states such as Virginia and Maryland. The enthusiasm of homeowners in those states for views of transmission towers is limited, to say the least. Michael Morris, CEO of American Electric Power, estimates that to supply 20 percent of the nation's electricity needs with wind by 2030 will require the construction of 19,000 circuit miles of extra-high-voltage transmission. Unless the Obama team is willing to use the right of eminent domain to over-ride all objections from local environmental groups, in the process antagonizing millions of voters, those transmission lines will never get built. Or built only after a 6-year long permitting process, the current average according to Morris. So, back to coal and nuclear. I would like to be a fly on the wall when Larry Summers explains these ugly facts of energy-sector life, the necessity for tradeoffs, to Ms. Browner and her colleagues. Or when Summers explains to the president that only a tax on carbon, to be offset by a cut in payroll taxes, can set the stage for efficient investment in renewables, and a reduction in greenhouse gas emissions that is not also a reduction in the overall efficiency of the economy. Irwin M. Stelzer is a contributing editor to THE WEEKLY STANDARD, director of economic policy studies at the Hudson Institute, and a columnist for the Sunday Times (London).

Another Great Ben Franklin Quotation For Our Times

"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote."

"Stern on the Legal Mythology of Home"

This post from PropertyProf blog has special relevance as we discuss issues of exclusionary single-family zoning laws:

Stephanie Stern (Loyola Chicago) has posted Residential Protectionism and the Legal Mythology of Home on SSRN. Here's the abstract:

Residential real estate has achieved an exalted status and privileged position in American property law. The notion of the home as a special object deserving heightened protection is widely accepted within the case law and scholarship. Influential scholars, most notably Margaret Radin, have argued that the home is critical for an individual's very identity and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting individuals in communities of close-knit social ties. Over the past century, there has been a proliferation of legislation creating special protections for owners of residential real estate such as homestead exemptions, tenancy by the entirety, property tax relief, and more recently foreclosure relief and state eminent domain legislation shielding residential real estate. This type of legislation imposes a variety of social costs including raising the cost of credit, skewing housing prices and incentivizing over-investment, and forcing less affluent homeowners to subsidize more affluent homeowners through regressive measures. One motivation for residential protection legislation is the desire to protect the special values attributed to the home, especially for families. More often, the impetus for such legislation is rent-seeking by special interest groups, competition between states to attract residents, actions by local home voters who attempt to externalize costs across localities, or grandstanding by politicians anxious to capitalize on the evocative chord of home protection. The belief that homes play a critical and irreplaceable role in the lives of individuals and families has provided a gloss of moral legitimacy to rent-seeking and greased the wheels of the residential protectionism machine. It is time for a critical reexamination of the importance attributed to the home. Drawing on the research literature in psychology, sociology, and demographics this paper argues that there is scant evidence to support a categorical theory of the home as a special object that constitutes individual identity or enables a rich web of social interactions. The psychology research illustrates the importance of social interaction and relationships (not possessions) for human functioning while the demographic research indicates that closely-knit, low-turnover, territorial neighborhoods are the exception, not the norm.

Class Schedule--No Class Friday February 6

The first of our 7 required cancellations will be Friday February 6, President Ronald Wilson Reagan's Birthday (February 6, 1911).

This would be a good day to schedule job interviews. Mark your calendars.

It was Mel Gibson's Braveheart, not the Gipper, who said this, but it captures the spirit of Reagan and of liberty:

"Fight and you may die. Run and you will live, at least
awhile. And dying in your bed many years from now, would you be
willing to trade all the days from this day to that, for one
chance to come back here as young men, and tell our enemies
that they make take our lives, but they will never take our freedom?"

Religious Land Use: A Global Perspective

Some of you may find this Religion Clause blog post of interest:

Burma Orders Christians and Muslims To End Worship Services In Private Apartments

In the heavily Buddhist country of Burma, both Christians and Muslims were ordered last week to stop holding religious services in residential apartments. Mizzima reported on Wednesday that in Rangoon, the Kyauktada Township Peace and Development Council held a meeting with nearly 50 church leaders last Monday to deliver their demand. The use of apartments for services has grown since authorities stopped issuing permits in the 1990's for churches to buy lands and construct buildings. According to a subsequent report by Mizzima, Muslim leaders were separately summoned by authorities on Monday and similarly ordered to stop holding worship services in private apartments. The unavailability of government permits to build mosques has led to use of private venues for worship.

"Supreme Court Review Sought In RLUIPA Case"

From Religion Clause blog:

Supreme Court Review Sought In RLUIPA Case

According to the Longmont (CO) Times Call, a petition for certiorari was filed with the U.S. Supreme Court last week in Rocky Mountain Christian Church v. Board of Commissioners of Boulder County, Colorado.  In the case, the 10th Circuit upheld a jury's determination that denial of a special use permit to a church violated the equal terms and unreasonable limitations provisions of RLUIPA. (See prior posting.) The 10th Circuit subsequently denied a rehearing after making minor changes in its original opinion. (See prior posting.)

December 2008 Mid-year Exercise Results

Here is the breakdown for the Midyear Exercise:

2 Students scored 100 points

9 Students scored 96 points

11 Students scored 92 points

7 Students scored 88 points

9 Students scored 84 points

6 Students scored 80 points

7 Students scored 76 points

5 Student scored 72 points

5 Student scored 68 points

2 Students scored 64 points

2 Students scored 60 points

4 Students scored 56 points

5 Students scored 52 points

1 Student scored 48 points

2 Students scored 44 points

The test median was 80 points

The average score was 78.28

This was good work. More than half of you scored above 80% on this short exercise.

As I said in class, don't read too much into your performance on the mid-term exercise. The final will count for 300 points, and things could change a lot based upon your performance on the final. Be neither discouraged nor overconfident.

Also, please ignore the "quartile" rankings that the Law College will provide pursuant to a new faculty rule. I consider these quartiles arbitrary at this point in the course, because I simply don't have enough data to make any judgment about your relative ranking in the class. I divided the scores into quartiles only because I was required to do so. As far as I am concerned in my professional judgment, everyone is presently in the first quartile.

I am generally pleased with the perfomance of the class as a whole.

Have a great break and come back ready to have a great second semester.

Merry Christmas or Happy Holidays

Have a great holiday and a great break. Here is the annual Duncan Family Christmas letter that we send to our friends and relatives:

Merry Christmas from the Duncans!

It’s a snowy day in mid-December as we belatedly sit down to write this year’s Christmas epistle on all things Duncan.

We’ve added another Duncan to the family! She’s a blue-eyed blonde named Elizabeth. The new year started with wedding bells at the Duncan household. Casey came home for Christmas last year and announced that he and Beth were going to get married – on New Year’s Day! Not even Jennifer Lopez could have pulled a fabulous wedding together as quickly as they did.

In August, the always adventurous Josh set out on a journey three exits west of Lincoln on the Interstate to Seward, Nebraska, home of Concordia University. Josh is grasping college life with open arms and has already become involved in theatre with a role in Kiss Me Kate, journalism with his own political column, and with “The Improvables,” an improvisational theatrical group that performs frequently on campus to full houses. And of course Josh continues to pursue his passion for art by majoring in studio art. On the downside for Josh, he was the victim of a serious crime when he came home one weekend to discover that all his property had been taken away in the dead of night – by his sister, Hannah, who wanted his basement suite. She promptly transformed this bachelor pad into a pink girly paradise and Josh had to settle for Hannah’s old room upstairs.

Becca is about to become Rick’s greatest fear – a teenage driver. She passed her driver’s test with flying colors and since then has been begging non-stop for a Mustang. As Rick likes to say, “You can beg for anything, but beggin’ ain’t havin’.” Becca is also now the tallest member of Duncan Clan, but she has rejected a career in basketball to sing soprano in Image, her high school vocal group. She is planning a trip with Image to Florida in March, and has been taking voice lessons from Professor Alisa Belflower at the University of Nebraska. She is also very active in theater, portraying an Amish teenager in the LCS spring musical Plain & Fancy and an Irish-American burro in the school’s fall production of Sacramento 50 Miles.

Rick cannot understand how our country can be in a recession what with Hannah spending money in amounts sufficient to bail out all of corporate America. In addition to confiscating Josh’s bedroom, Hannah has spent the last 13 months dancing in Hollywood, Topeka, St. Louis, Kansas City, Omaha, and New York City. Indeed, her dance trip to New York required us to extend our vacation on Sandbridge Beach from 2 weeks to 3 weeks so she could fly to New York City and still have some time to play on the beach. Her reign as Miss Nebraska Pre-Teen came to an end as she tearfully crowned her successor in August.

Katie won her first trophy this year – and it’s a big one. She showed a miniature mare named Melody at the Lancaster County Fair and won Grand Champion. Katie is a member of the Harmony Hill 4-H Club which is a group of girls who love to ride but who don’t own horses. In one of her writing assignments, Katie described her home as, “an acreage that needs, but does not have, a HORSE.” She’s already picked out the name if she gets one: Dreamer. Katie continues to be a songbird filling our house with music everyday and singing at church and in the Deo Gratias choir.

Kelly doesn’t know how she survived the year. Last Christmas she said that 2008 was going to be a challenge with “one reigning, one graduating and one getting married.” But she’s still standing thanks to God’s Amazing Grace. Serving as the Children’s Supervisor in Bible Study Fellowship has been her joy this year. Her most embarrassing moment of the year occurred just days ago at the Nutcracker when she went out to warm up the car and proceeded to lock her keys in the car with the engine running. As always, Rick came to the rescue laughing all the way to the Lied parking lot with the extra set of keys.

Rick had an interesting opportunity to be involved in a “real world” Takings case this year when Lancaster County government, no doubt impressed with Hannah’s seizure of Josh’s room, decided to take a strip of our front yard in order to accommodate more outsiders by widening 82^nd street. After one tense meeting with the land grabbers, Rick did the wise thing and turned the matter over to his lawyer. He loves playing in the waves at Sandbridge Beach with the kids and is already excited about the 2012 presidential election in which he hopes to support either Sarah or Newt and change he can believe in.

We’ll close with the words to the solo Katie sang in this year’s Christmas program:

What can I give Him, poor as I am?

If I were a shepherd, I would bring Him a lamb.

If I were a wise man, I’d sure do my part.

So what can I give Him? I’ll give Him my heart.

Question Session

I will be available for a question session next Monday (Dec. 8) at 1:30 -2:30 in Room 113.

RLUIPA and Takings

I had a great question after class today.

When the govt wishes to take a church for public use, does RLUIPA protect the church from what is effectively a forced sale imposed by law?

Well, what is the answer? What is the issue under RLUIPA?

Be prepared to tell me tomorrow!

For a previous post that dealt with this kind of taking, see here.

Recent RLUIPA Decision

ReligionClause blog has an interesting post:

In Third Church of Christ, Scientist v. City of New York, (SDNY, Dec. 2, 2008), a New York federal district court, applying the "equal terms provision" of RLUIPA, enjoined the city from revoking previously granted approval for a church to use its building for catering activities. The city argued that the catering activities were no longer an "accessory use." Rather they had become so extensive that use of the building as a church by the declining congregation's membership was no longer the building's primary use. The court was troubled that this interpretation would permit smaller religious groups to be treated less favorably than larger ones. Ultimately however the court said that it did not need to resolve the issue of "accessory use" because

the Equal Terms provision is squarely implicated by the City's decision to revoke its earlier granted pre-consideration for the Church when other food-service and catering businesses, associated with non-religious groups, operating in the same neighborhood as Plaintiff, also in violation of the Zoning Resolution, were given only a "Notice of Violation."

Finding that the 2nd Circuit had not interpreted the RLUIPA's equal terms provision, the court held that under either the 3rd or 11th Circuits' competing interpretations, Plaintiff would prevail. The court also expressed concern over the City's policy of investigating zoning violations only when a complaint is filed. This can lead to "unfair targeting of unpopular groups." Yesterday's New York Times reported on the decision. (See prior related posting.)

NYC Landmark Preservation Articles-NYT

An Opaque and Lengthy Road to Landmark Status


Preservationists See Bulldozers Charging Through a Loophole ("In a strategy familiar to preservationists, property owners rush to obtain demolition permits so their structures won’t receive landmark protection.")

Landmarking Churches and Religious Properties

"Barack Obama and Constitutional Property Rights"

An excerpt from the Volokh blog:

Columnist Steve Chapman quotes an interesting passage from Barack Obama's book The Audacity of Hope, where Obama praises constitutional property rights:

Our Constitution places the ownership of private property at the very heart of our system of liberty.... The result of this business culture has been a prosperity that's unmatched in human history.... Our greatest asset has been our system of social organization, a system that for generations has encouraged constant innovation, individual initiative and the efficient allocation of resources.

I. Judicial Protection for Property Rights and Obama's Legal Philsophy.

This is a fairly strong statement. Obama doesn't merely say that the Constitution offers some small degree of protection for property rights. He writes that it "places the ownership of private property at the very heart of our system of liberty." That implies that property rights should get more protection than the distinctly second-class status they have been relegated to under the Supreme Court's current jurisprudence.

Stronger protection for constitutional property rights would also be consistent with Obama's more famous statement calling for the appointment of judges who have "[t]he empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." As David Beito and I discussed in this article, African-Americans, the poor, and the politically weak tend to be the biggest victims of government violations of property rights. Since World War II, hundreds of thousands of people - most of them poor minorities - have been forcibly displaced by "blight" and "economic development" condemnations.

For more, go here.

"County Council Member Objects To Rezoning Because of Opposition To Church Policy"

From the Religion Clause blog:

Catholic News Agency reports today that Beaufort County, South Carolina Councilwoman Laura Von Harten has apologized for controversial remarks she made at a Council committee meeting last Monday. The Beaufort (SC) Gazette reported on Tuesday that the county's Land Management Committee, on which Von Harten does not sit, approved rezoning for expansion of St. Gregory the Great Catholic Church by a vote of 5-2. During discussion at the Committee meeting, however, Van Harten spoke to say she would not support the rezoning when it comes up for a full Council vote because of "human rights issues." She said that Catholic Church policies are an "affront to my dignity and all of womankind." She especially objected to the Church's ban on female clergy and her dislike of the way the Church wishes to "control women's uteruses." She said: "I don't want to support anything that will perpetuate that kind of ideology."

Apologizing on Tuesday, Von Harten said that her human rights concerns relate to "the Catholic Church as a political entity, with a seat at the United Nations, but I acknowledge that I offended individuals in my own community." She added: "Please be assured that I have been reminded of the importance of separation of church and state in matters of land use, and have learned a great deal from this incident." She now says she will abstain from voting on the St. Gregory zoning issue when it reaches Council.

Perhaps this is why Congress believed we need RLUIPA?

Hornbook Reading

A few of you have been worrying about concepts and terms used in the Hornbook readings that are beyond the scope of what we have read in the casebook or discussed in class.

The purpose of the Hornbook readings are to help you understand the concepts and issues from the casebook and class discussion. If the Hornbook raises additional issues that you find confusing, just ignore it. The purpose of the Hornbook is to help you understand our readings and discussion; not to add new concepts (like powers of appointment for example). So don't get bogged down or confused by the Hornbook. It is there to help you, not to confuse or frustrate you.

Using the Power of eminent domain to take a mosque

Here is a post from the Religion Clause blog:

"In a challenge to Wayne Township, New Jersey's attempted exercise of eminent domain, a federal court refused to permit developers of a mosque to add an additional count to their complaint. The Township is attempting to take the mosque's property as part of an Open Space Plan. (See prior posting.) In Albanian Associated Fund & Imam Arun Polozani v. Township of Wayne, 2007 U.S. Dist. LEXIS 87666 (D NJ, Nov. 29, 2007), the court rejected an amendment alleging that the planning board's decision was arbitrary and capricious. The court held that insofar as the claim is brought under state law, it should be decided in state court. Insofar as it is based on federal substantive due process grounds, the complaint does not give sufficient notice of the basis of the claim. The court however did grant plaintiffs' motion to supplement their complaint in connection with eight other counts."

If you can't zone them out, you can try to impose a forced sale using the power of eminent domain, bulldoze the mosque, and say it is all good because you are adding a beautiful green belt for all to enjoy.

A True Owner Who Did Return

From the PropertyProf blog:

A while ago, we noted a dispute between a contractor and a homeowner about a bunch of 1920s currency found in a wall. Classic finder v. owner of the locus dispute, right? Well, the publicity generated by the dispute brought the true owner's descendents out of the woodwork, and they'll get a share. Of course, the lawyers will probably get the biggest share.

Third Circuit RLUIPA Decision

I am not assigning this case, just passing on some info to show you how RLUIPA has become an almost daily development in the federal courts. This religious civil rights enactment is truly the most significant development in Property Law for many years. Here is the post from the Religion Clause blog:

"Yesterday the U.S. 3rd Circuit Court of Appeals issued a lengthy opinion interpreting the anti-discrimination provision of RLUIPA. The section prohibits land use regulations that treat religious institutions "on less than equal terms" than nonreligious ones. In The Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, (3d Cir., Nov. 27, 2007), the court, in a 2-1 decision, held that Long Branch, NJ did not violate the section when under a redevelopment plan it excluded churches and religious assemblies from an area zoned for entertainment and recreation.

The court held that the "equal terms" provision does not require a church to show that a "substantial burden" has been been placed on its religious exercise. However, it does require plaintiff to show that it was treated less well than a secular organization that has a similar negative impact on the aims of the challenged land-use regulation. Churches are not similarly situated because New Jersey law prohibits the issuance of a liquor license to establishments located within 200 feet of a church. The court also rejected plaintiff Lighthouse's claim under the First Amendment's Free Exercise clause, finding that its exclusion from a small area of the city did not burden its religious exercise, and that the redevelopment plan was a neutral regulation of general applicability. The court did however permit an award of damages under RLUPA for previous injury caused by a now-superseded zoning ordinance.

Judge Jordan, dissenting in part, argued that the "equal terms" provision of RLUIPA is violated when a zoning ordinance categorically excludes churches from an area where secular assemblies are permitted, without the church being required show that it is similarly situated in regard to the regulation's purpose."

"Making Apartments Smoke Free: Erosion of Private Property Rights?"

Check it out over at PropertyProf blog. Here is an excerpt (just click it to link to the NYT article):

The New York Times today reported that an increasing number of U.S. cities have enacted legislation restricting the ability of residents in multi-unit residential buildings to smoke inside their apartments. (It also discussed increased anti-smoking restrictions in public housing units.)

Get ahold of "portable property":Advice From Dickens For Bad Times

"They may not be worth much, but after all, they're property and portable. It don't signify to you, with your brilliant lookout, but as to myself, my guiding star always is, Get hold of portable property." Mr. Wemmick, Great Expectations

More on Hannah Montana

Remember our hypo--

Grutz conveyed "to John Walton and his heirs so long as Blackacre is used as a farm, then to Hannah Montana and her heirs if Hillary Duff is then alive."

We said that Hannah Montana's shifting executory interest is valid under the common law RAP, because it is certain to either vest or fail no later than the death of Hillary Duff, who is a life in being.

My question to you (which I will not answer--I want you all to struggle with this one on your own) is:

does the Grantor, Grutz, have any interest following this conveyance? If no, why not? If yes, what interest and how come?

Happy Halloween

Ohio Homes are Castles

Sunflower Field Near Hickman, Nebraska (photo by Rick Duncan)



From the Volokh blog:

Home Defense Law Takes Effect in Ohio:

Starting today, Ohio law embraces the "castle doctine" -- the idea that your home is your castle -- and homeowners who use force to protect their homes against intruders will be presumed to have acted in self-defense. More here.

As "Dirty" Harry Callahan likes to say:"Go ahead, make my day."

More Blogger Advice For 1Ls

Over at the Volokh blog:

here and here

Zoning and Religious Liberty

"Rabbi fights order to halt home prayer meetings" (link)

Here is an excerpt from the First Amendment Center:

A Hasidic rabbi is challenging an order by the city of Portland to halt weekly prayer meetings at his home because they violate zoning regulations.

Rabbi Moshe Wilansky, with the backing of the Maine Civil Liberties Union, has asked the Zoning Board of Appeals to annul the order because it violates his right to practice his religion.

“Even if there is some legitimate complaint, which I would dispute, this is a matter of fundamental religious liberty,” said Zachary Heiden, legal director for the MCLU.

The directive stemmed from a complaint by a neighbor and public works employees that too many cars park along Craigie Street during Saturday worship service and block snow plows and trash trucks during winter.

At issue is whether Wilansky’s home is a residence or a place of worship. The rabbi says it’s a house, but the city says Chabad Lubavitch of Maine, the nonprofit religious organization he heads, advertises it on its Web site, www.chabadofmaine.com, as a place of worship....

Because the Chabad Lubavitch movement, based in Brooklyn, N.Y., has no synagogues in Maine, Wilansky practices his brand of orthodox Judaism at home. His supporters say the Saturday morning prayer, the most important of the week, requires a group of 10 men to conduct. Because orthodox Jews are not supposed to drive on the Sabbath, his choices for a place to pray are limited, supporters said in a letter to the zoning board.

Noting that 15 to 20 worshippers, most of whom don’t drive, visited his house every Saturday, Wilansky said he couldn’t understand the fuss over a handful of cars on a street where a similar number are parked for Sunday football parties and holiday get-togethers.

“You see Craigie Street, there’s spaces for hundreds of cars on both sides,” he said.

Book For Law Students

From the Volokh Conspiracy:

Prof. Ward Farnsworth's The Legal Analyst:

Ward Farnsworth, a friend of mine who teaches at Boston University law school, has just published a new book, The Legal Analyst. It's an excellent book, especially for law students and incoming law students — thoughtful, well-written, and useful.

I'm delighted to say that Ward will be guest-blogging about the book
next week. For now, here's a brief summary from the Preface:

The book is a user’s guide to tools for thinking about legal questions.
It divides up the world of law according to techniques for thinking about it, then gives lots of examples of how the techniques work — a bit of criminal or tort law here, a bit of contract or constitutional law there, and so forth. In essence I’ve tried to take the most interesting ideas one learns about in law school — or should learn, or might wish to have learned --­ and explain them in ways that are clear and that convey why thinking about legal questions is an exciting, intellectually satisfying activity (or why some of us think so, anyway).

This might sound like a book for law students, or for people
heading to law school, and it is indeed meant to help them; when a new recruit asks me what they might find helpful to read during the summer before law school, I’ve never been sure what to suggest, and this book should be a help to them. But it is also meant for anyone else interested in law, professional or amateur. This is the book I would have liked before I went to law school, when I understood almost none of what it explains. It also is the book I would have
liked when I got out of law school, at which time I understood about half of it. It even is the book I’d like to have had at various earlier points during my teaching career, as when I wasn’t sure about the meaning of a stag hunt or the conjunction paradox.
See also the Table of Contents and these three sample chapters, all available at The Legal Analyst site.

Firethorn

I wanted to thank you all for the Firethorn Golf Shirt. I will get lots of use out of it when teaching the law of covenants.

Different classes have different personalities, and I have enjoyed your group a lot, because as a class you have a great collective sense of humor and enjoy a good laugh. Perhaps my favorite quotation from literature is Rafael Sabatini's description of Scaramouche (and, unknowingly, of me): "He was born with the gift of laughter, and a sense that the world was mad." That will be on my tombstone some day.

I am sure it cost you all much more than I am used to spending on my wardrobe. In fact, one of my recent purchases was a knit shirt I purchased at Kohls off the 90% off clearance rack (plus a coupon for another 15% off that already reduced price). I think I paid $2.25 for the shirt including tax.

My daughter Hannah, who is always trying to get me to do a wardrobe makeover, will be thrilled when she sees the Firethorn shirt.

Cheers, Rick Duncan

Mankind and Property: A Little Perspective As the Course Nears its Conclusion

Photo by Hannah Grace Duncan

Seven Ages of Man in Relation to Property


First Age: A child sees the earth

Second Age: He wants it

Third Age: He hustles to get it

Fourth Age: He decides to be satisfied with about half of it

Fifth Age: He would be satisfied with less than half of it

Sixth Age: He’s now content to possess a two-by-six foot section of it

Seventh Age: He gets it

(Source: I can't remember where I discovered this, but I think the author was unknown. I take no credit for this powerful insight other than title by occupancy)

Whoops! Schedule Update

I thought we had only two weeks of class left, but we actually have three. This is good news because we will not have to rush through the material.

Here is our schedule for the next three weeks:

Week One

Wednesday April 9: Snow v. Van Dam; Casebook p. 69-76; 587-595; Moore v. City of East Cleveland (Handout 9A)

Thursday April 10: Casebook p. 595-608

Friday April 11: Finish up covenant material

Week Two

Wednesday April 16 & Thursday April 17: Landlord/Tenant Material (Assignment 25)

Friday April 18: I will try to answer your questions as you prepare for the final exam

Week Three: No Class (the last three of our seven scheduled "no class" sessions). You should use this time to study for finals!

"Property Law in the Lord of the Rings"

From the Volokh Conspiracy. Here is an excerpt:

In addition to the primary property dispute over the ownership of the Ring,there are several other conflicts over property in the Lord of the Rings, such as the claim of Rohan's neighbors that the Riders wrongfully disposessed them of their land, the conflicting claims to ownership of Moria as between the Dwarves and the Balrog, and Aragorn's claims to inherit the lands and other property of his ancestor Isildur. The chapter on "The Scouring of the Shire" with its scathing portrayal of Saruman's "Gatherers and Sharers" and Saruman's nationalization of industry is a thinly veiled attack on socialism. None of this is to say that Tolkien was some kind of libertarian. He hated modern industry and capitalism. But he did have a conservative traditionalist's attachment to private property, and it comes through in the book at many points.

Copyright and Property

Over at the Volokh Conspiracy, Randy Barnett has a nice post about copyright laws as a clog on creativity. He also makes a point I made earlier this year:

We won't settle this here. Suffice it to say that there is an enormous difference between tangible and intangible property rights. With tangible property you control your stuff. With intangible property you control other people's stuff. (For more tentative thoughts along this line see here (pdf).)

By the way, the new Beatles re-mix Randy mentions is very interesting. I like it a lot.

Handout 9A Available

We won't get to it for a couple of weeks, but Handout 9A is now available in the Handout racks near the South Side faculty suite.

Oral Argument in Second Amendment Case

Not technically a property case, but the Second Amendment is a check on tyranny designed, in part, to protect property rights from being taken by tyrannical governments. A tyrant will think long and hard before oppressing a well-armed citizenry.

And, of course, handguns are a type of personal property, and thus laws that forbid the ownership of handguns restrict your property right to own a handgun.

From How Appealing:

1. Access online the transcript of today's U.S. Supreme Court oral argument in District of Columbia v. Heller, No. 07-290: The Court has posted it at this link.And C-SPAN has made its rebroadcast of the audio from today's oral argument available for on-demand viewing by clicking here (RealPlayer required).

2. "Supreme Court Majority Appears To Back Gun Rights": Robert Barnes of The Washington Post provides this news update.Michael Doyle of McClatchy Newspapers reports that "Supreme Court justices critical of D.C. gun ban."James Vicini of Reuters reports that "Conservative justices question D.C. handgun ban."And Greg Stohr of Bloomberg News reports that "Gun Rights Draw Support in U.S. Supreme Court Hearing."

Marketable Title Acts

Rather than spend our class time discussing the somewhat complicated facts of H & F Land, lets instead focus on the following hypo:

1/1/1970 Grutz conveys Blackacre in FSA to Lawson (+R)

1/1/1975 Grutz conveys Blackacre in FSA to Duncan (+R)

1/1/2008 Duncan enters into a Land Sales K with Willborn and agrees to tender a marketable title of record in FSA

Who owns Blackacre on 1/1/1975?

Who owns Blackacre on 1/1/2008?

Does Duncan have a marketable title of record to Blackacre for purposes of the land sales contract with Willborn?


1/1/1970 Grutz conveys Blackacre "to A so long as the property is used as a dairy farm." (+R)

1/1/1975 A conveys Blackacre in FSA "to Duncan and his heirs." (+R) Duncan takes possession and farms the land.

1/1/20008 Duncan agrees to convey a marketable title of record in FSA to Willborn.

No Class Friday March 14

Just to make it official, we will be using one of our 7 scheduled off days to cancel class this Friday, March 14. Think of it as an early St. Patrick's Day! Or as a day to remember the Red Sox 2004 World Championship! And remember the old Irish proverb about home ownership: "So long as I live I'll spit in me own parlor."

A Green Paradox

From the PropertyProf blog:

From CNN:
In an environmental dispute seemingly scripted for eco-friendly California, a man
asked prosecutors to file charges against his neighbors because their towering
redwoods blocked sunlight to his backyard solar panels.

But the couple next door insisted they should not have to chop down the trees to accommodate Mark Vargas' energy demands because they planted the redwoods before he installed the solar panels in 2001. . . .

After more than six years of legal wrangling, a judge recently ordered Richard Treanor and his wife, Carolyn Bissett, to cut down two of their eight redwoods, citing an obscure state law that protects a homeowner's right to sunlight.

The couple does not plan to appeal the ruling because they can no longer afford the legal expenses, but they plan to lobby state lawmakers to change or scrap the law.
The Solar Shade Control Act means that homeowners can "suddenly become a criminal the day a tree grows big enough to shade a solar panel," Treanor said.

The case marks the first time a homeowner has been convicted of violating the law, which was enacted three decades ago, when few homeowners had solar systems.

The law requires homeowners to keep their trees or shrubs from shading more than 10 percent of a neighbor's solar panels between 10 a.m. and 2 p.m., when the sun is strongest. Existing trees that cast shadows when the panels are installed are exempt, but new growth is subject to the law.

Hmmm. This is a paradox, no? Redwood trees or solar panels? Which one should a Green Guy choose?

No Class Friday Feb. 15

I am such a softee! In light of the intense lobbying from some of you, I have decided to use one of our 7 class cancellations for Friday February 15.

I am celebrating Mike Huckabee Day! You are free to designate this as the holiday of your choice.

Have a great weekend,

Rick Duncan

Handout 9

Its a-comin'!

I thought I had already distributed this one, but I haven't.

It should be in the Handout Racks near the South Side faculty suite by Monday afternoon.

Have a great weekend.

"Fair Housing, Free Speech and Choosy Roommates"

Adam Liptak has this article in the NYT. If that link doesn't work, try the link in How Appealing. Here is an excerpt:

Gene Kavenoki wanted to rent out a spare bedroom in his West Hollywood apartment and he had a few requirements.

“I am not looking for freaks, geeks, prostitutes (male or female), druggies, pet cobras, drama, black Muslims or mortgage brokers,” he wrote on Roommates.com.

Other users of the Web site were more adamant about their desires. “Must be a black gay male!” one said. “Please no flakes, deadbeats or white trash!” another said.

And some were a little creepy. A 57-year-old man said he was offering “free rent for the right woman” in exchange for “quiet companionship in an intimate place.” He preferred, he wrote, “a Hispanic female roommate so she can make me fluent in Spanish or an Asian female roommate just because I love Asian females.”

Those postings are part of a lawsuit by a fair housing group against Roommates.com, a matching service that does pretty much what its name suggests. The suit says the site violated fair housing laws, which forbid publishing real estate ads that indicate preferences based on race, religion or sex.

Fair housing is important, but so is free speech and so is the right to choose who is puttering around in your living room. Congress has taken two stabs at striking the right legal balance, but what it has created is a tangle of contradictions.

This article highlights the tension that sometimes exists between liberty and government-mandated equality rules. How should this tension be resolved? Do people have a right to choose their roommates? Or should the law forbid housing discrimination in roommate selection?

Spring Semester Schedule

UPDATE:

As I announced in class today, there will be no class on Friday January 25--I will be down at the Legislature testifying.


Property class will meet this semester on Wednesday, Thursday and Friday from 1 PM until 2 PM in Room 113.

Notice that this class meets for a full 60-minute hour. Therefore, we will meet 35 times (as opposed to the 42 class sessions for a 50-minute class). Thus, I will need to cancel 7 classes this semester to get down to 35 days of class.

Right now, the only class I have decided to cancel is Wednesday February 6, President Reagan's birthday.

I will probably cancel a few other Wednesday classes and we may finish up a week early. As I said, I need to cancel a total of 7 classes to get down to 35.

Lincoln Journal Star: "Neighborhoods with few home owners can reach 'tipping point'"

From today's National Paper of Record, here is an article about home ownership and social welfare. Here are some excerpts:


"One of the first things Michael Snodgrass’ teenage son noticed after moving to Lincoln this summer was how quiet it was at night. No gunshots.

Snodgrass had lived and worked for 15 years in one of the roughest parts of Kansas City. At his job, where he worked to improve the inner-city, most people called him White Guy.

He’d hear gunfire while walking from his car to his house.

He once came across the body of a man shot to death in an intersection.

As he was contemplating whether to return to Nebraska to lead NeighborWorks Lincoln, a 2-year-old in his neighborhood was accidentally killed in a drive-by shooting.

And while Lincoln’s inner city is nothing compared to Kansas City’s, Snodgrass immediately saw some big red flags after he arrived here. He’s surprised that so few Lincoln residents own their homes, particularly in older neighborhoods.

The average state and national homeownership rate is about 68 percent. Lincoln’s is 60 percent.

Experts say any neighborhood with less than 55 percent homeownership has reached a “tipping point,” meaning things could tip one way or another, for better or worse.

None of Lincoln’s core, older neighborhood rates are above 50 percent. And in one area south of the Capitol, only 6 percent of people own their homes.

Even given the impact of Lincoln’s college population, those are low numbers.

Renters aren’t bad people, but home ownership stabilizes neighborhoods. People who own their homes often take better care of the property and are concerned about property values.

Snodgrass says Lincoln is experiencing the doughnut effect — a hollowing out of the city core as people move to newer homes and apartments on the edge of the city. The rental-heavy city core is being pounded by vacancy rates in the double digits.

The effect is evident in the abundance of “for rent” signs. Apartment buildings that are half empty. Overgrown yards, broken windows, discarded furniture.

Some landlords are so desperate they’ll rent to almost anyone, says Lynn Fisher, who owns about 200 rental units and is head of the Real Estate Owners and Managers Association.

Criminal background checks fall by the wayside. Credit problems are overlooked. Sketchy renters move in, and scare away the good renters.

Landlords who can’t rent their apartments are less likely to be able to fix a leaky roof or moldy bathroom. Snodgrass says this “perfect storm” takes a toll on the heart of the city, where once-grand historic homes get neglected. Where the broken-window theory — that blighted property attracts crime —plays out.

The result of prolonged disinvestment and low homeownership rates can be seen in north Omaha and the core of Kansas City, Snodgrass says."

Read the whole thing if you are interested in urban housing, economic development, and social welfare.

By the way, although I find the court's opinion in Euclid troubling, perhaps the court understood that home ownership (as opposed to renting) is a legitimate concern for public policymakers.

Euclid and Nectow: Why Did they Come Our Differently?

The issue was the same in both cases--does the law being challenged bear a substantial relationship to a legitimate police power interest. Why did the cases come out differently?

Facial vs. as applied application.

Gotham Times on Free Trade and Importing Jobs

Interesting article in today's edition.

Nevada Supreme Court Determines Equitable Considerations Justify Claim for Per Se Taking of Airspace

Here

City Bans Religious Ministry From Feeding the Hungry On Public Property

From the Religion Clause blog another example of "Property and No Property":

"In West Palm Beach, Florida, two non-profit groups have sued to challenge the city's three-month old ordinance that bans their feeding of the hungry on public property at two locations in the city. Yesterday's Palm Beach Post reports that plaintiffs claim the ordinance is vague and overbroad. One of the plaintiffs, "Art and Compassion" is a religious group that says feeding the poor is part of their religious obligation to God. Referring to a recent grand jury report that found West Palm Beach Mayor Lois Frankel had created a "pay to play" environment in which developers felt pressure to contribute to city organizations and the mayor's campaign, plaintiffs in this law suit charge that a "pay to pray" system has been created. The lawsuit alleges: "Those who can pay for a building or pay money for the mayor's special projects or charities are granted the permission to pray and practice their religion as they see fit, but those who lack the funds to own a building. . . are told to go inside another's church in order to carry out their sacred duties outside the public view.""

Exams Results: Good Work!

Here is the breakdown for the Midyear Exam:

7 Students scored 100 points

9 Students scored 96 points

11 Students scored 92 points

7 Students scored 88 points

6 Students scored 84 points

13 Students scored 80 points

5 Students scored 76 points

1 Student scored 72 points

1 Student scored 68 points

4 Students scored 64 points

3 Students scored 60 points

1 Student scored 56 points

1 Student scored 52 points

1 Student scored 40 points

The average score was 83.44 points

The test median was 84 points

This was good work. More than half of you scored above 80% on this short exercise.

As I said in class, don't read too much into your performance on the mid-term exercise. The final will count for 300 points, and things could change a lot based upon your performance on the final. Be neither discouraged nor overconfident.

I am generally pleased with the perfomance of the class as a whole.

Have a great holiday and winter break.

See y'all soon.

Rick Duncan

From the Volokh Conspiracy--"Property Law in Jane Austen's Pride and Prejudice"

Once again, our class is on the cutting edge of Property legal education.

Here is the link.

Good Luck on the Exam and Merry Christmas (or Happy Holidays)

Good luck on the exam and Merry Christmas (or Happy Holidays). Here is the Christmas letter we send to our friends and relatives:



Merry Christmas from the Duncans!

Yes, Santa, there is a Virginia. We know this for sure because we spent 2 months living in a beach house on Sandbridge Beach while Rick taught Religion and the Constitution as a visiting summer professor at Regent Law School. We had a wonderful time swimming in the waves, walking along the beach at sunrise and reconnecting with good friends from our last trip to Sandbridge.

Our Queen-for-a-year, Her Majesty Queen Hannah of Hickman, spent the year basking in the glow of her success at last year’s Miss Nebraska Pre-Teen competition. She competed at nationals in November and won the talent competition. She also got to tour Hollywood, spend a day at Disneyland, and make lots of royal friends among the other competitors at the National America Miss competition in California. One benefit of her pageant experience was the opportunity to model professionally for SELECT Model Management; she has modeled regularly for Pamida ads including being a cover model on one of their circulars.

Our little one, Katie, has become quite the equestrian. She started riding lessons with a wonderful teacher, and now the highlight of Katie’s week is riding Dusty or Bravo, her two favorite horses. She also adopted yet another kitten – Prince Charming or “the Tigster” as Rick likes to call him, and, after visiting the vet recently for the kitten’s first exam, Katie made a major career decision upon seeing where vets occasionally have to insert their fingers. In fact, that very night she came home and announced, “I don’t want to be a veterinarian!” Katie also loves music and continues to sing in the Home School Prep Choir and take piano lessons. The only thing on her Christmas list this year is an electric keyboard.

Becca started high school with a bang this year. She is the only freshman girl ever to be selected by audition to be in Image, the premier singing group at Lincoln Christian School. She has been growing like a weed and now, at sixty-seven and one half inches, Becca is the second tallest person in Duncan Clan. She has become a beautiful and talented young woman and we are very proud of her. Becca has the earliest bedtime of anyone in our family, because she has decided that going to bed early is the only way she can get 9 hours of sleep a night and still be up for school in the morning.

It doesn’t seem possible that Josh is about to graduate from high school and head off to college. It all went by in a twinkle. He has had a great senior year at L.C.S. He is a National Merit Semi-finalist, President of the school drama and Journalism clubs, and has already won numerous college scholarships. It looks as though he will be attending Concordia College in Seward pursuing a degree in art and taking part in the school’s drama program. Josh is also excited about being eligible to vote in the next presidential election and early indications suggest that his political choices will make his dad look like a flaming liberal.

Casey continues to enjoy his job at University of Texas Law Library and plans to be home for the holidays with his fiancée Beth and their dog Tessie. We think we can figure out where Casey will bunk, but we’re not all that sure about sleeping arrangements for Tessie at the Duncan menagerie.

Kelly now has the distinction of being the “Queen Mum” and has spent the year catering to the royal needs of Her Majesty Queen Hannah of Hickman. She did enjoy an 8-day “vacation” in sunny southern California accompanying Hannah to the National pageant, but since it occurred over Thanksgiving week she was sorry to miss out on the holiday at home with the rest of the family. She continues to be active in Bible Study Fellowship as the Children’s Supervisor and enjoys the fellowship of other Christian women.

When Rick learned that he was responsible for preparing Thanksgiving dinner, he immediately went out and purchased a dozen ”Hungry Man” turkey pot pies. As he put it: “Heck, you got your turkey, you got your potatoes, you got your vegetables, you got your gravy, and you got your pie. What more do you need for a Thanksgiving feast?” Actually, Becca prepared a splendid meal that even impressed Granny and Becca’s non-royal siblings. And to his credit Rick helped with the mince pie and the baked ham. Rick’s movie recommendations for the year include Pursuit of Happyness and Amazing Grace—each of these films tells a great story and each also has a great message. And he continues to wait expectantly for the New York Times to run a Pulitzer Prize winning article blaming the collapse of the New York Yankees on global warming! Three cheers for those melting ice caps! The entire Duncan Clan wishes you a very Merry Christmas and Happy New Year. Throw another log on the fire!

What Should We Do About Homelessness

• Should we follow the suggestion of Prof. Ellickson and remove the homeless "from certain public spaces, and [create] a zone for them in other public spaces?" P. 1449 n. 103 Notice that this is a zoning approach which permits the homeless to "panhandle" and "bench squat" only in the "Red Zone" of town. What are the benefits and costs of this plan?
• RLUIPA is a law that helps religious ministries, including those aimed at the homeless and the destitute, deal with similar kinds of "Red Zone" issues, zoning laws that exclude religious land uses from certain commercial and/or residential districts. Is this good?
  
• Should we encourage and subsidize private giving designed to help the poor. What about a significant dollar-for-dollar tax credit for charitable contributions to private charities targeting the poor, such as homeless shelters and soup kitchens? For example, I could donate as much as, say, $2500 to the City Mission (or other similar charity of my choice) and get a dollar-for-dollar tax credit from the IRS. What are the benefits and the costs of this?
• What about a large tax increase to fund government programs to help the homeless?
  
• Some of us could support the tax credit legislation, but not the tax increase. Others could support the tax increase, but not the tax credit. Indeed, this might make it impossible to get either bill enacted. Why is this?
  

Property and "No Property"

UPDATE

If you have a few minutes, please write a comment or two about the "Property vs. No Property" article. Maybe we can discuss some of your comments tomorrow in class.

Here are a few questions I hope to discuss in class this week:

• Does property "enhance freedom" or does it limit freedom by giving property owners "imperium over...fellow human beings?" For example, as the owner of Blackacre, I have the right to exclude persons from trespassing on my land. Is this property right of mine best understood as a protection of my liberty (the freedom to use my land as I see fit) or as the power to control my fellow human beings? Is the liberty of property any different than any other liberty? Does my freedom of speech include the right to control others who wish to physically silence me? Does a woman's liberty of abortion include the right to be protected against interference from those who try to physically stop her from entering an abortion clinic? Does my liberty to walk on a public sidewalk include the power to be protected from those who try to prevent me from free use of the sidewalk?Isn't it always true that A's liberty to do X includes the power to forbid B from stopping A from doing X?


• But if we allow people to be free doesn't that mean that disparities of power will result? Freedom of speech tends to give more power to the eloquent and wise than to the tongue-tied and ignorant. The liberty of sexual autonomy provides greater dating and marriage opportunities to those whose gifts (physical gifts, intellectual gifts, and material gifts) are highly valued in the relationship marketplace than to persons who have less of these gifts. So to, the liberty of property results in "disparities of power that accompany disparities in wealth." Should we restrict all of these liberties to ensure greater equality?


• If property is essential to personhood, then must a government that respects personhood "guarantee citizens all entitlements necessary for personhood" and also "cease allowing one person to impinge on the personhood of another by means of her control over tangible resources?" But what does this mean? Where do these "entitlements" come from? Must we take part of A's personhood (by taxing away A's property) and transfer it to B? If B is homeless and walks into my house and takes possession of part of my home, must the government prevent me from excluding B from my home?


• What should we do about the extremely poor, those with very little or "no property?" Does it matter why they are so poor? Should society do more for the poor widow than for someone whose difficult situation is the result of poor choices they have made? In a free society, how much coercive redistribution is too much? What is the role of private charities including faith-based charities?

Recent 7th Circuit RLUIPA Decision

From the Religion Clause blog:

"Writing for the 7th Circuit in his usual engaging style, yesterday Judge Richard Posner in Digrugilliers v. Consolodated City of Indianapolis, (7th Cir., Oct. 30, 2007), reversed a district court's denial of a preliminary injunction in a religious land use case. At issue was whether in requiring a Baptist Church to obtain a variance in order to lease space for its religious services in a district zoned for commercial use, Indianapolis was violating the provision of RLUIPA that prohibits unequal treatment of religious institutions."

Print out that case and lets read it for next Friday's class (as part of Handout 7). Here is a direct link to the 7th Circuit's opinion.

Property and "No Property"

Here is the article I want you to read for class discussion on the last Thursday class (i.e. after we finish RLUIPA): Jane B. Baron, Property and "No Property," 42 Hous. L.Rev. 1425-1449 (2006). Here is a link to a PDF version of this article on Hein online. Print it out at your leisure and be prepared to discuss it two weeks from tomorrow.

Pursuit of Happyness

Here is a post I blogged around this time last year. It is my reflections on a great property movie, one worth renting over the Thanksgiving break:

My wife and I finally got out of the snow and in to Lincoln to see Pursuit of Happyness. It was a wonderful movie, a Rocky for the average guy struggling to take care of his family. I also had some very definite thoughts about how the film relates to Property as a fundamental human right. Here are some of my thoughts:

1. The first thing I thought about as I watched Chris Gardner struggle to survive with his son as a homeless single dad was Prof. Baron's article about Property and "No Property." If property rights are essential to personhood and human dignity, then to have "no property" is to exist as a non-person, as one who has no dignity. Of course, Chris Gardner was a strong man, a man who claimed personhood and human dignity in spite of his homelessness, but the point remains--he hit rock bottom when forced to sleep with his son in a public restroom and only his strength, and faith, and indomitable will enabled him to overcome these horrible circumstances.

2. I thought about RLUIPA as I watched Gardner survive with the help of a religious ministry whose mission was to feed and shelter the homeless. This is exactly the kind of religious ministry that often finds itself unpopular under zoning laws that are designed to protect the interests of single family neighborhoods and commercial districts. RLUIPA protects the right of ministries like this to locate where they can do the most good for people like Chris Gardner and his son.

3. What is the "pursuit of Happiness" that the Declaration of Independence declares to be an "unalienable right" given to each person by his or her Creator? Well, it is the right to pursue property, to pursue a livlihood, to pursue the means to support your family and to provide for your children. My salary makes me happy not because I love money, but because my income enables me to provide a home for my family, to pay tuition for my children's education at schools I believe in, to pay for my daughter's dance lessons to help her pursue her dream of being a ballerina, and to save to secure my children's future.

This movie is about one man's pursuit of happiness, one man's struggle to work hard to acquire the means to care for his son. Chris Gardner refused to stop pursuing his dream of a good job and the income (i.e. property) that job would provide, because he wanted to be able to afford a good home for his son, a good education for his son, and an easier road for his son than the one Chris had to walk. Property is not things, it is what enables us to meet our responsibilities to our children and families. And this is why property rights are so essential to the good life in a free society, because when government takes our property--whether directly or through taxation--it takes away some of our ability to acquire a home for our families, to educate our children in a school of our own choosing, and to save a nest egg to protect our families against an uncertain future.

4. Of course, this is not to say that there is no role for government to provide a safety net to protect the poor (those with little or "no property") from falling as far as Chris Gardner fell. But it is to say that when government takes our income, we should never forget that the tax funds extracted from us make our own pursuit of happiness that much more difficult. At least, that is how I look at taxes and takings. They are a necessary evil, but an evil nonetheless. I hope you didn't miss that scene in the movie where Chris Gardner's bank account is seized for taxes by the IRS, and as a result Gardner lost the little cushion ($600) he had to survive until he could finish the internship program.

5. I also appreciated what Chris said when he emphasized that we don't have a right to happiness, only a right to pursue happiness. In other words, the pursuit of happiness requires hard work, and each individual is responsible for pursuing his or her own happiness. The more effort, the more determination, the more likely you will succeed. But there are no guarantees.

Your comments are welcome. See you next week!