The Buffalo Who Lives Next Door To Blackacre

My Neighbor Buffy the Bison Photograph By Kat Duncan

Fall 2010 Property

Property students--as you scroll down here you will find a syllabus for Fall Semester as well as some hopefully helpful and interesting posts about Property (and a few about law school generally). Don't scroll past posts dated August 2010 (we will eventually get to some of the older posts, but right now I just want you to look at the newer ones)

See you all in class next week.

Rick Duncan

Good Advice For New 1Ls

Over at the Volokh blog (link) . Here is another link.

Welcome to the UNL College of Law. You are in for a wild ride that lasts 3 years!

No Comment

Here is a past post from Ilya Somin at the Volokh conspiracy:

Great Moments in Education - Of Legos, Private Property, and the Tragedy of the Commons:
Teachers at the Hilltop Children's Center in Seattle decided to use Legos to teach children that private property is evil:
[T]he students had been building an elaborate "Legotown," but it was accidentally demolished. The teachers decided its destruction was an opportunity to explore "the inequities of private ownership." According to the teachers, "Our intention was to promote a contrasting set of values: collectivity, collaboration, resource-sharing, and full democratic participation."
The children were allegedly incorporating into Legotown "their assumptions about ownership and the social power it conveys." These assumptions "mirrored those of a class-based, capitalist society — a society that we teachers believe to be unjust and oppressive."
They claimed as their role shaping the children's "social and political understandings of ownership and economic equity ... from a perspective of social justice . .. "
Legos returned to the classroom after the children agreed to several guiding principles framed by the teachers, including that "All structures are public structures" and "All structures will be standard sizes." The teachers quote the children:
"A house is good because it is a community house."
"We should have equal houses. They should be standard sizes."
"It's important to have the same amount of power as other people over your building."
The teachers were also disturbed that "some kids hoarded the "best" pieces, denied their classmates any access at all to the pretend town they were building."
The heavyhanded idiocy of the teachers speaks for itself. Even some of the little tykes weren't taken in:
Not all of the students shared the teachers' anathema to private property ownership. "If I buy it, I own it," one child is quoted saying.
However, as a property professor I should point out that the teachers' experiment in common property legos may have some educational value, though not the kind that the teachers intended. Giving Legos to a large group of children without allowing any kind of private ownership rights is a great way to demonstrate the dangers of what we law and economics types call the tragedy of the commons.
If kids are not allowed to "hoard" Lego pieces, it is unlikely that an impressive-looking Lego town can be built in the first place. If there is no right to exclude of the kind decried by the teachers, any Lego town that does get built is likely to be quickly destroyed by other children looking for Lego pieces to use for their own projects. Avoiding tragedies of the commons is one of the main reasons why private property is an essential social institution, and the Seattle teachers have, however unintentionally, stumbled on a new way to teach children about it.
UPDATE: There is an obvious irony in the teachers' position on private property. According to its website, the Hilltop Children's Center is a private school that requires parents to pay tuition, as well as a $50 fee just for getting on the waiting list for potential future admission. In order to support itself and pay the teachers' salaries, Hilltop relies on private property and its associated right to exclude - exactly the institutions that the teachers are trying to indoctrinate the children against.

No Classes Next Week

Katie's Horse Easy

Except:

I will show up at the usual time (2:10) next Thursday, April 22 for a question and answer session.

This session is optional--hopefully it will be helpful, but your attendance is optional.

FYI: A Nebraska Covenant Case

Fenway Park Before the Crowd Arrives (from Peter Abraham, Boston Globe)


Nebraska Law Review on: Skyline Woods Homeowners Ass’n v. Broekemeier

Prof. Amar's "Tips for Students Taking Law School Exams"

Here

I moved this forward to give you another chance to look at it.

They are mostly relevant to essay exams, but some pretty good tips.

Good Luck!

Orin Kerr Gives Exam Writing Advice

Over at the Volokh Conspiracy, Prof. Orin Kerr posts about Bad Answers, Good Answers, and Terrific Answers

You may find his advice very useful soon.

"Town Will Change Law To Permit Small Churches To Meet In Residences"

From the ReligionClause blog:

Tuesday, March 16, 2010

Town Will Change Law To Permit Small Churches To Meet In Residences

Responding to an appeal (full text) filed by the Alliance Defense Fund with the Board of Adjustment, the Gilbert, Arizona Town Council announced yesterday that it will move quickly to change the town's zoning code to permit small church groups to meet in individual homes. The Arizona Republic yesterday describes Council's statement as "extremely apologetic." The issue arose when Gilbert's zoning administrator upheld a cease-and-desist order issued to the Oasis of Truth Church. The administrator said that the church's religious services for 10 to 15 people on a rotating basis at the pastor's home constitute a "religious assembly" under the town zoning ordinance, and that Bible study, church leadership meetings and fellowship activities were "church-sponsored activities," all of which are prohibited in single-family residences. To show their concern over the order issued to Oasis of Truth, the town's mayor and acting town manager attended Sunday services there this past week end.

"Eminent Domain Battle in Virginia"

Here is an interesting item from the PropertyProf blog:

Eminent Domain Battle in Virginia

Fox News reported yesterday about an eminent domain battle in Virginia over the amount properly awarded in just compensation. The city that condemned the property offered approximately $20 million, but the landowner claims he received market offers for more than twice that amount prior to the condemnation. In addition to the differing numbers, though, the story raises the larger question of whether property owners are truly made whole by awards limited to fair market value only. Finally, the story reveals an interesting fact that I did not know -- in Virginia, jurors in an eminent domain case must be property owners.

No Class Friday Feb. 26

I am on the Honor Court and we have two hearings this Friday.

Thus, I am using one of our seven cancellation days to cancel class this Friday, Feb. 26, 2010.

This is the fourth of our seven cancellation days.

Recent Gallop Poll on Attitudes About Socialism

Link

Excerpt:

PRINCETON, NJ -- More than one-third of Americans (36%) have a positive image of "socialism," while 58% have a negative image. Views differ by party and ideology, with a majority of Democrats and liberals saying they have a positive view of socialism, compared to a minority of Republicans and conservatives....

Socialism had the lowest percentage positive rating and the highest negative rating of any term tested. Still, more than a third of Americans say they have a positive image of socialism.

Exactly how Americans define "socialism" or what exactly they think of when they hear the word is not known. The research simply measures Americans' reactions when a survey interviewer reads the word to them -- an exercise that helps shed light on connotations associated with this frequently used term.

There are significant differences in reactions to "socialism" across ideological and partisan groups:

• A majority of 53% of Democrats have a positive image of socialism, compared to 17% of Republicans.
• Sixty-one percent of liberals say their image of socialism is positive, compared to 39% of moderates and 20% of conservatives.

Just an interesting factoid for your information. I get the love affair between the Left and Socialism, but who in the heck are these "conservatives" (20%) who dig socialism? Gotta be Yankee fans, no?

William Wallace Snow Day--No Class

There will be no class today, Friday February 5 (our first of seven cancellation days).

Since discretion is the better part of valor, let's celebrate my favorite hero of Alba, the one known as Braveheart, William Wallace.

Speaking of sons of Scotland, one of my favorite folksingers is Dick Gaughan, whose music is available on emusic. Here are some lyrics of one of my favorite Gaughan tunes, a wee songie called Tom Paine's Bones (written by Graham Moore):

As I dreamed out one evening
By a river of discontent
I bumped straight into old Tom Paine
As running down the road he went
He said, "I can't stop right now, child,
King George is after me
He'd have a rope around my throat
And hang me on the Liberty Tree"

But I will dance to Tom Paine's bones
Dance to Tom Paine's bones
Dance in the oldest boots I own
To the rhythm of Tom Paine's bones
I will dance to Tom Paine's bones
Dance to Tom Paine's bones
Dance in the oldest boots I own
To the rhythm of Tom Paine's bones

"I only talked about freedom
And justice for everyone
But since the very first word I spoke
I've been looking down the barrel of a gun
They say I preached revolution
Let me say in my defence
That all I did wherever I went
Was to talk a lot of common sense"

But I will dance to Tom Paine's bones
Dance to Tom Paine's bones
Dance in the oldest boots I own
To the rhythm of Tom Paine's bones
I will dance to Tom Paine's bones
Dance to Tom Paine's bones
Dance in the oldest boots I own
To the rhythm of Tom Paine's bones

And here is another lyric I love to hear Gaughan sing, a wee bit from Both Sides the Tweed:

Let virtue distinguish the brave
Place riches in lowest degree
Think them poorest who can be a slave
Them richest who dare to be free

Have a safe and a good weekend.

"The War of Winds"

Here is a recent article from the ABA Journal. Here is an excerpt:

It is a bright mid-September day. Hal and Judy Graham are sitting in the living room of their restored 19th century farmhouse, which looks out over the still-green rolling hills near Cohocton, a rural community in the Finger Lakes region of upstate New York.

The pastoral view is punctuated by two 420-foot-high structures. The sleek towers, almost alien in appearance, are wind turbines. One of them stands 1,000 feet from the farmhouse, on a neighbor’s property. The second is 2,000 feet away on the Grahams’ own land.

On this afternoon in the late summer of 2009, the twin Goliaths are still. One was shut down last winter after a flurry of attempted repairs, and the other has unaccountably been shut down for just a couple of days. But the Grahams expect it to be only a temporary respite. When the winds are high and the turbines are spinning fast, “it sounds like a jet engine taking off in your backyard,” says Judy Graham. “Only it never stops.”

In 2004, the Grahams signed a contract that permitted a company named UPC Wind (since renamed First Wind) to construct and operate a wind turbine on their property as part of a 50-turbine “farm” that stretches across a number of properties. Later, the town of Cohocton passed an ordinance that effectively exempts leaseholders from any noise controls.

“They told us that the noise at 900 feet would be no louder than the hum of a refrigerator,” says Hal Graham. But he says the reality has been far different. “We can’t sleep. We can’t watch TV. This has been a disaster for us and our neighbors.”

Wind power is one of the current darlings of the movement to find alternative energy sources, and in 2008 the United States surpassed Germany as the world’s leading producer of electricity generated by wind. “With the right government policies, this cost-effective source of energy could provide at least 20 percent of the nation’s electricity by 2030, create thousands of jobs, and revitalize farms and rural communities—without consuming any natural resource or emitting any pollution or greenhouse gases,” says the American Wind Energy Association on its website.

But an increasingly vocal minority says there is another, more sinister, side to wind power. They acknowledge that, from a distance, the towering sentinels seem to spin lightly and noiselessly in the wind. But closer up, they insist, turbines emit stomach-jarring whooshes and rumbles, and an impossible-to-ignore rhythmic hum that disrupts sleep and causes headaches, nausea and fatigue in some people.

Another problem is shadow flicker, caused when the spinning blades chop up sunlight, creating a swooping pattern of shadows that some people say makes them woozy and sick.

It is getting harder and harder to be green in the New Age!

Should Government Outlaw Surburban Living

in order to fight "global warming??

It's one thing to use a green light bulb, but quite something else to give up the American Dream about a little house and a little piece of land in a quiet suburb or acreage.

Here is a recent post from the Property Prof blog:

LaCroix on Land Use and Climate Change

Catherine J. LaCroix (Case Western) has posted Land Use and Climate Change: Is it Time for a National Land Use Policy? on SSRN. Here's the abstract:

During the past few years it has become apparent that the challenge of climate change requires us to rethink fundamental aspects of the way we live. Already we have focused on the power industry, the way we fuel our cars, and the extent to which we may conserve power through green buildings and more efficient lighting. This opinion piece asks us to consider another step in the process: the development of a national land use policy to restrict sprawl and encourage more energy-efficient land use patterns. Traditional land use policy is based on Euclidean zoning that separates land uses and encourages sprawl. Land use regulation is fragmented in the hands of thousands of local governments. The American Planning Association has argued that the division of metropolitan areas into individual autonomous regulatory kingdoms defeats rational planning and leads to sprawl, traffic congestion, and environmental degradation. Once land is developed along low-density suburban patterns, reliance on mass transportation is doomed and auto dependency is guaranteed. The paper suggests that we consider development of a national land use policy that sets goals or perhaps standards and guidelines for smart growth programs nationwide, with federal funding for states that choose to abide by these prescriptions.

Hmmm. Let's get rid of local control and have Washington tell us where to live! Sounds like a good plan, no?

WWPHD: What would Patrick Henry do?

Just Compensation

Someone last year asked me for a reference, and here is an article that may be of interest:

Christopher Serkin, The Meaning of Value: Assessing Just Compensation for Regulatory Takings, 99 Northwestern L.Rev. 677 (2005). Here are some excerpts:

The author notes that the "valuation problem has been hidden behind a veil of apparent consensus...compensation...is measured by the fair market value of the property taken."

"Fair market value excludes, for example, consequential damages and compensation for any of the real but subjective harms suffered by the property owner. This contributes to the popular intuition that fair market value provides inadequate compensation for takings."

Richard Epstein on Kelo

Over at thepolitic.org, Prof. Richard Epstein, one of the leading scholars on the law of Takings, has the following article:

Lessons from Kelo v. City of New London

By Richard A. Epstein

Richard Epstein LAW ’68 is a professor at the University of Chicago Law School and a senior fellow at the Hoover Institution. His many books include Takings: Private Property and the Power of Eminent Domain.

Many important cases before the United States Supreme fail to excite the popular imagination. But among the raft of technical decisions on federal preemption, bankruptcy, securities, and taxation lies the occasional constitutional law case that grabs the public imagination. One such case...was Kelo v. City of New London, which the Supreme Court handed down in June 2005. There the Court held that the City of New London could invoke its comprehensive plan for economic redevelopment as the sole reason for condemning about a dozen private homes located within the proposed development zone.

A Notorious Decision

The instantaneous and widespread of outrage toward Kelo stemmed from two sources. First, the public had a clear sense that the Supreme Court had strayed beyond the acceptable boundaries of constitutional interpretation by treating private economic development as a taking “for public use.” If Kelo counts as a public use, then the public use language is a dead letter, for no one could identify any use of state or local condemnation power that violates the provision.

The second reason relates less to text and more to popular conceptions of government power. Most people think that government power to take property for redevelopment menaces the peace and security of the community. Thus Justice Sandra Day O’Connor struck a raw nerve when she declared simply that Kelo allows any local government to condemn a Motel 6 in order to put a Ritz Carlton in its place. Her homey example crystallized the oft-forgotten sense that private property is a bulwark for the little man, not the plaything of the rich. It was no surprise that poll after poll gave Kelo disapproval ratings over 80 percent numbers that no working politician could live with.

The one silver lining in this sorry tale was that Justice Stevens’s majority opinion made took pains to say that it was just an interpretation of the Takings Clause of the United States Constitution. At the federal level Congress could pass legislation that limited the use of the eminent domain. Similarly, states could impose limits on their own power, either through their own constitutions or through state legislation.As expected, a large cottage industry developed in the aftermath of Kelo as Congress and the states grappled with this issue. At least one state, Ohio, invoked its state Constitution to limit takings of the Kelo variety. Simultaneously, the many opponents of Kelo sought both by legislation and referendum to overturn the decision. At the federal level, there has been no movement to date. In some states, moreover, stout political resistance from local governments and some developers has bottled up all reform measures. Nonetheless, a popular groundswell has produced legislation of varying strength in thirty-four states. (For a summary, see Castle Coalition, Legislative Action Since Kelo: http://castlecoalition.org/pdf/publications/State-Summary-Publication.pdf.) Some states, including Alabama and Florida, have placed a substantial crimp on the power of state and local government to order condemnations for economic development only. In other states, such as California a close popular vote on Proposition 90 defeated a measure that would both limit the power to take for economic development, and the power to regulate land use through zoning.
The Political Economy of the Public Use Question
These three state responses to Kelo tell an instructive tale. When public use issue is raised in isolation, voters tend to support some restriction on the use of government power. But where the Kelo issue is tied to any proposal, as in California, that also attempts to limit the power of state and local governments to impose zoning restrictions most commonly by requiring compensation for the loss of land values popular sentiment shifts in the opposite direction. The straight public use measures can pass. The combined public use and anti-zoning measure fails.
This dichotomy raises something of an intellectual puzzle. As a simple descriptive matter, the local zoning power is invoked far more frequently than the condemnation power. In addition, its effects are often quite substantial on the regulated landowners who can easily lose 80 percent of their land value to zoning restrictions. Why then do voters frown on condemnation for economic development, but tolerate or even embrace zoning regulations of all sorts and description? Part of the answer turns on questions of constitutional interpretation. It is easy to see why taking land for private development does not count as a public use. It is much harder to understand why even the extensive regulation of land use counts as a taking of private property. It is necessary to have a clear understanding that a single plot of land contains multiple interests in order to make the case that land use restrictions take a key stick out of a property owner’s bundle of rights. That of course is a mouthful that requires some explanation, even if the line between takings and regulation cannot survive careful scrutiny. But it is just this extended detour into the law of easements and restrictive covenants that insures for ordinary people the zoning issue will never achieve the dramatic clarity of the public use question.
A second explanation looks more to political economy and less to the fine points of property and constitutional law. The key inquiry asks who bears the brunt of various kinds of government actions and, conversely, who profits from them. The usual public use situation follows the pattern found in Kelo. Long-term residents within the community fall within the cross hairs of government agencies, which then transfers the property to out-of-town developers whose projects will provide homes and stores for persons who do not already live in the community. The insecurity faced by the eminent domain threat is local; its benefits are widely diffused. There is little wonder that ordinary citizens are quick to see the looming peril.The political economy of zoning is quite different. The first principle of zoning law makes it very difficult to cut out existing uses, so that local residents and businesses rarely do face displacement. The restrictions on local land use, however, tend to hurt the current owners of undeveloped land. Often they do not live locally, and even when they do, they are easily outnumbered. The persons most hurt by the restrictions on new development are outsiders, with little voice in the local politics. The political calculus thus changes because citizens are willing to support measures, at least in the short run, that advance their particular interests. Hence the relatively high local satisfaction with most zoning regimes, most of the time.
From a constitutional perspective, there is something decidedly awkward about the current treatment of public use and zoning issues. The usual rationale for the protection of property rights is that political majorities should not be allowed to vote their own interests at the expense of embattled minorities. Accordingly, it looks as though zoning, which is directed toward outsiders, should receive at least as much if not greater judicial scrutiny than outright condemnation, which is directed against present residents.Public Use and Zoning Together
There is, of course, today, no evident public groundswell against local zoning activities, which have become, if anything, more intrusive over time. Most people think that zoning and condemnation raise separate issues that do not have to be considered together in evaluating local use regulation. But this position is in fact short-sighted because when the two different types of government action are intimately related.Zoning has strong effects in both the short and long-run. In the short-run, those cities and towns with strong zoning law get lots of kudos when neighbors celebrate their ability to keep out a new apartment complex or shopping mall. But the long-term consequences are dire when the forces of exclusion prevail in case after case. These cumulative short term victories erode the long term health and tax base of the community, especially if outside developers shy away from the municipality because of an anticipated hostile response. In the end, therefore, towns like New London suffers from economic stagnation and lose out to nearby communities with more receptive land use policies.
At this point, local governments, like the City of New London, find it difficult to answer the wake-up call. No private developer wants to duke it out with the local planning commissioners. Instead savvy developers want their deals sealed in advance. There is only one way to do this. Have the local government condemn the land which it then transfers to the developer under a long term agreement that provides advance approval for the project. Just that sequence defined the New London experience.
Now, the tight connection between public use and zoning issues becomes clear. Any local government that uses heavy zoning restrictions courts public use fiascos down the road. A constitutional regime that curbed the excesses of local zoning would give greater security of property rights to insiders and outsiders alike, and thus obviate the need for government land grabs like Kelo. Regrettably, our Supreme Court has washed its hands of oversight for both zoning and public use decisions. But state courts, and state legislators should work to rein in these dangerous tendencies, which requires a stronger and more systematic defense of private property. To get this right, we must disabuse ourselves of the supposed conflict between private property and some ill-defined notion of the public interest. These two are not in opposition. In the long run, the systematic protection of private property advances any viable conception of the public interest.

"Property Rights and Eminent Domain: The Mighty Myths of the Kelo Case"

If you are interested in the views of a supporter of Kelo and a broad meaning of "public use," here are the views of John Nolon.

Mid-Year Exam

Quite a few of you want to review the questions you missed on the exam. I have a procedure for this that I think works best at actually accomplishing something. Here is basically what I ask students to do before meeting to review their exam performance:

First, look at your exam in the Dean's Office and see what questions you missed. Vickie has your test sheet and the answer key in the Registrar's office.


Second, do a little work reviewing the areas you missed (e.g., if you had trouble with defeasible fees or RAP, re-read the casebook and blog posts and handouts and hornbook on these areas and try to figure out what it is you don't understand).


Then, when you have specific questions about areas you don't understand, let's get together and try to figure out how to get you up to speed. We can look at the questions you missed on the test at this session, but only after you have tried to figure out what your specific difficulties are.


Basically, the exam was very straightforward. You either knew it, or you didn't. If you missed several questions, it is because you did not know those areas. It is almost like a vocabulary test in a foreign language class. If you miss, say, 6 vocabulary words, it is probably because when you studied you just did not master those words. The way you fix it is by going back and studying those words and their definitions until you master them.

After you have had a chance to review your answer sheet and do some work figuring out what specifically you don't understand, stop by my office and we will try to get you back on track. Just stop by or shoot me an email when you are ready to go to work.


I know this requires you to do some work and take some responsibility for the areas you missed on the exam. But I believe that is the best way for you to actually improve, and trying to improve is the only reason to review the questions you missed.

For those of you who have gone through these procedures and are ready to meet with me, I will be available the next two Wednesdays after class from 3:15 to 4:00 PM to meet with you. Once you are ready to meet, shoot me an email and reserve a slot on one of those days.

The Spirit of Liberty: Refusing To Sell

PrawfsBlawg has a very interesting post about "an elderly woman who held out against private development because she just didn't want to sell, at any price." How do you like the above picture of her house after everything went forward?

Here is the post:

Just to follow up on my post on gentrification, here's an article from the Seattle Times about an elderly woman who held out against private development because she just didn't want to sell, at any price. When she wouldn't sell, developers simply built around her (see photo, also from the Times story).

From the article:

Last time I saw Edith Macefield, she threatened to sue me. Then she smiled and invited me in. It was in 2006. I had written a column about how old Edith had refused to leave her tiny home in a filthy, industrial Ballard neighborhood, saying "no" to a nearly million-dollar buyout offer from a developer.

Her house was valued as a worthless tear-down by the government. But to her it was priceless. When I stopped by later to check on her, she said she was angry that I had written about her. More than anything, she said, she wanted to be left alone.

But Edith, I said. You're a folk hero. I showed her some of the 200 e-mail messages I'd gotten from readers, some from as far away as Seoul, South Korea. They hailed her for valuing something other than money. For being a lone holdout against relentless Seattle yuppification. "She's about the last thing left with any soul around here," said a typical one.

That's when she invited me in. Turns out she had gotten 60 similar letters, some hand-delivered with flowers. As she showed them, she dismissed all the fuss as hooey.

"I'm no hero," she said. "I meant it. I just want to be left alone." Edith died Sunday, at 86. She died in the tiny cottage she had refused to leave, not for a million bucks. "She got what she wanted," said Charlie Peck, a longtime friend. "She wanted to die at home, in the same house, on the same couch, where her mother had died. That's what she was so stubborn about."

Merry Christmas and Happy Holidays

Hannah Duncan as the Jester in the Nutcracker


Have a great Christmas and a great break.

I will post new assignments for Spring Semester soon right here on Hooray Property!

Best wishes, Rick Duncan

Property Restrictions and Religion: View From Switzerland

From the Religion Clause blog:

Swiss Voters Approve Ban On Minarets

Swissinfo.ch reports that voters in Switzerland today approved an initiative supported by the right- wing Swiss People's Party and the Federal Democratic Union imposing a ban on the construction of minarets in the country. The final tally showed that 57.5% of the voters and a majority of the cantons backed the initiative. The government, and most political parties, churches and businesses had all opposed the ban. A government statement after the vote said that the Federal Council respects the decision of the voters. New minaret construction is now banned. The four existing minarets will be permitted to remain. Swiss Justice Minister Eveline Widmer-Schlumpf, who strongly opposed the ban, said the initiative was really a proxy for opposition to perceived creeping Islamicisation and sharia law. Opponents fear the vote will fuel extremism and tarnish Switzerland's reputation in the Muslim world. Switzerland has around 350,000 Muslim immigrants (4.5% of the population), mostly moderates from the former Yugoslavia and Turkey. It is estimated that there are 160 mosques and prayer rooms in the country, mainly in empty factories and warehouses.

UPDATE: The London Telegraph has more detailed vote results: 57.5% in favor (1.534 million people), 42.5% against (1.135 million people), with 22 of the 26 cantons in support of the initiative.

Minarets are "distinctive architectural features of Islamic mosques. Minarets are generally tall spires with onion-shaped or conical crowns, usually either free standing or taller than any associated support structure." See Wikipedia.

NYT editorial here.

"The Creed in the Deed"

The PropertyProf blog has a very interesting post about deed restrictions involving both religious and political creeds. Here is a link. Here is an excerpt in which the professor discusses using property conveyances as a means of expressing deeply held beliefs:

Isn't amazing the intersection of our deeply held values with the tangible things we hold. This strikes me as very similar to the article Al Brophy wrote several years ago on covenants against Yankees: Whistling Dixie: The invalidity and unconstitutionality of covenants against yankees,10 Villanova Environmental Law Journal 57. One of the covenants uncovered by Brophy and Gnosh in that article was this one:

The property shall never be leased, sold, bequeathed, devised or otherwise transferred, permanently or temporally, to any person or entity that may be described as being part of the Yankee race. "Yankee" . . . shall mean any person or entity born or formed north of the Mason-Dixon line, or any person or entity who has lived or been located for a continuous period of one (1) year above said line.

Brophy's account traces the unlikely tale of a recent southerner who had not forgotten the war (at least as late as 1998) who attempted to enforce a covenant against yankees in the sale of certain property in Georgia. Like this case, certain church members used the courts (or so I am told) to enforce these creeds against apostates of the faith. Church folk, like Southerners after the war, are greatly invested in their larger normative beliefs, and for some, the best way of expressing it is through the material intrusions of this world -- like property.

Recent Scholarship on Pierson v. Post

Miss Sassypants (rescued and photographed by Kat Duncan)


From the PropertyProf blog:

The History of Pierson v. Post

Daniel R. Ernst (Georgetown) has a fantastic summary of the recent scholarship on the history of Pierson v. Post in the Green Bag.

Harry Potter and the Half-Crazed Bureaucracy

Concerning Harry Potter and the law, is J.K. Rowling trying to convert a new generation of anti-government libertarians? Prof. Benjamin Barton's recent law review article says perhaps.

Here is the link. Just scroll down past the abstract and you can print out the article in its entirety.

And here is a money quote:

"Rowling taps into the current general distrust of government in the US and the UK and creates a Ministry of Magic that simultaneously echoes and critiques our own governments. On the one hand she creates a government that is repulsive in its structure, personnel, and actions. On the other, she crafts this government to appear closely related to our own government. This juxtaposition creates a powerful and subtle critique of government."

Sigh

It breaks your heart. It is designed to break your heart. The game begins in the spring, when everything else begins again, and it blossoms in the summer, filling the afternoons and evenings, and then as soon as the chill rains come, it stops and leaves you to face the fall alone. You count on it, rely on it to buffer the passage of time, to keep the memory of sunshine and high skies alive, and then just when the days are all twilight, when you need it most, it stops.

-A. Bartlett Giamatti (hat tip BoSoxLady on SOSH)

Handouts

A few of you have been asking "where are the Handouts" that are starting to show up on the list of assignments.

As future lawyers, you need to learn how to manage your documents. Thus, I am certain most of you realize that you already have handouts 1-7B. They were included in the original packet of handouts for "Fall 2009."

If you have lost your set of handouts, please copy a classmate's set, because there are no more copies available in the kiosk.

Class Cancelled Friday Sept. 25

The Young Lawyers Seminar-- next Friday, Sept. 25-- will be held in Rm. 113. We have been evicted from our classroom to make room for this program.

So we will not meet on Friday Sept. 25.

Instead, we will extend each class by roughly 7-10 minutes until we have made up 75 minutes.

It should take us about 8 extra long class sessions to accomplish this sum.

Finders and True Owners

Here is a nice local news story about some lost money and an honest finder.

Three cheers for Emmanuel, a young man who lived up to his name!

Zoning Problems of Large Churches

Here is a post from the Religion Clause blog about an issue we will cover later this semester:

Large Churches Face Zoning Hurdles

Today's Baltimore Sun carries an interesting analysis of zoning opposition to building of mega-churches (and similarly large synagogues and mosques). Dave Travis, a consultant who tracks these trends says: "There's still a general impression that most churches are small: The white frame church down there on the corner, the little brick building that has a hundred people. Just the fact that you've got a church with a couple thousand people seems abnormal to lots of people." Some large churches are instead pursuing a multi-site strategy.

Feel Free to Write Comments on the Blog

"Last Sunrise at Sandbridge" (photo by Rick Duncan)


If you wish to start (or continue) a dialogue with your classmates on some of the issues I am blogging about, feel free to do so. Just click on the comments link after any particular post, and write your comment as the spirit moves you. The only rule is the rule of civility and respect.

The Property Blog is open 24/7 for your edification.

Cheers, Rick Duncan

Jacque v. Steenberg Homes: A Few Notes, Questions, and Comments

There are a lot of issues in Jacque that lie beyond the scope of a 1L Property class. Don't worry too much about the standards for punitive damages and retroactive enforcement of new judicial rules.

Here are some things I would like you to think about:

1. What do you think of Felix Cohen's definition of "property" at 563 N.W. 2d 160?

"[T]hat is property to which the following label can be attached:

To the world:

Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private Citizen
Endorsed: The state"

2. Was it unreasonable for Mr. and Mrs. Jacque to refuse permission for Steenberg Homes to cross their land? Should the law of trespass permit "reasonable" trespasses? Trespasses where the utilitarian benefits outweigh the costs? Trespasses where it was unneighborly to refuse permission?

3. Should private tort law be used by courts to punish wrongdoers who intentionally trespass on the land of another? Why not allow the criminal law to punish wrongdoers and look to tort law to compensate for the amount of damages suffered by a private landowner as a result of the trespass?

4. Is there a difference between Ms. A, who intentionally trespasses across the land of her neighbor, Mr. B, on A's morning jog, and a commercial enterprise like Steenberg Homes? What is the difference and how should the law take that into account?

5. Profs. Merrill & Smith argue that what lies behind the decision in Jacque is the court's recognition that property rights are "moral rights" or fundamental human rights that impose "duties of abstention on all other members of the relevant community." As they put it, "[i]n the court's view, Steenberg Homes had an unqualified duty to respect the Jacques' property rights, without regard to whether their reasons for refusing permission were unfounded or even silly....Punitive damages were awarded to vindicate this broader right--a pure property right--not to promote public utility by preventing violence or protecting privacy."

6. Do you agree with the view of property as a moral right and basic human right? Or do you agree with Marx and Engels who summed up their theory "in [a] single sentence: Abolition of private property."

7. In which direction is our society moving--toward more--or less--respect for private property?

Duelling Lawsuits Concerning Religious Land Use

Sunrise at Sandbridge July 2009 (photo by RFD)


From the Religion Clause blog:

Competing Lawsuits Filed In Dispute Over Religious Services At Co-op Unit

Canopus is a Putnam County, New York cooperative comprised of 22 free-standing homes on 15 acres of land. A longstanding dispute between Anthony Bondi, Jr., a lessee of one of the homes, and his neighbors has led to competing lawsuits being filed in state court in New York. Bondi is head of an organization known as the Holy Orthodox Catholic and Apostolic Church of America. He holds services in his home which are attended each week by ten to 15 people. The cooperative has threatened to terminate his lease saying he is in violation of a lease provision that limits use of homes to residential purposes. Neighbors say that Bondi's advertising of services, including a website, invites strangers into the close-knit neighborhood. In 2008, Bondi filed a housing discrimination complaint with the New York State Division of Human Rights and with federal authorities at HUD. The New York agency issued a Determination of Probable Cause, and Canopus (as permitted by New York law) elected to have the complaint adjudicated in civil court.

While settlement negotiations were going on, Canopus-- without advance notice-- filed in state court. The complaint (full text) in Canopus Realty Corp. v. Bondi, (Sup. Ct. Putnam Co., filed 7/2/2009) seeks a declaratory judgment that Bondi does not have a right to run a business, including his Church, from his residence, and that enforcement of the lease terms that restrict use to residential purposes does not violate state or federal civil rights laws. In response, New York filed a housing discrimination lawsuit against the cooperative. The complaint (full text) in New York State Division of Human Rights v. Canopus Realty Corp., (Sup. Ct. Putnam Co., filed 7/14/2009), alleges religious discrimination, saying that the cooperative does not prevent other residents from inviting guests to their homes or to the co-op's clubhouse. It asks for a declaratory judgment, injunction and damages, as well as various broader remedial actions by Canopus. Courthouse News Service today reports on the lawsuits.

"Think twice about 'green' transport, say scientists"

From Yahoo news:

PARIS (AFP) – You worry a lot about the environment and do everything you can to reduce your carbon footprint -- the emissions of greenhouse gases that drive dangerous climate change.

So you always prefer to take the train or the bus rather than a plane, and avoid using a car whenever you can, faithful to the belief that this inflicts less harm to the planet.

Well, there could be a nasty surprise in store for you, for taking public transport may not be as green as you automatically think, says a new US study.

Its authors point out an array of factors that are often unknown to the public.

These are hidden or displaced emissions that ramp up the simple "tailpipe" tally, which is based on how much carbon is spewed out by the fossil fuels used to make a trip.

Environmental engineers Mikhail Chester and Arpad Horvath at the University of California at Davis say that when these costs are included, a more complex and challenging picture emerges.

In some circumstances, for instance, it could be more eco-friendly to drive into a city -- even in an SUV, the bete noire of green groups -- rather than take a suburban train. It depends on seat occupancy and the underlying carbon cost of the mode of transport.

"We are encouraging people to look at not the average ranking of modes, because there is a different basket of configurations that determine the outcome," Chester told AFP in a phone interview.

"There's no overall solution that's the same all the time."

The pair give an example of how the use of oil, gas or coal to generate electricity to power trains can skew the picture.

Boston has a metro system with high energy efficiency. The trouble is, 82 percent of the energy to drive it comes from dirty fossil fuels.

By comparison, San Francisco's local railway is less energy-efficient than Boston's. But it turns out to be rather greener, as only 49 percent of the electricity is derived from fossils.

The paper points out that the "tailpipe" quotient does not include emissions that come from building transport infrastructure -- railways, airport terminals, roads and so on -- nor the emissions that come from maintaining this infrastructure over its operational lifetime.

These often-unacknowledged factors add substantially to the global-warming burden.

In fact, they add 63 percent to the "tailpipe" emissions of a car, 31 percent to those of a plane, and 55 percent to those of a train.

And another big variable that may be overlooked in green thinking is seat occupancy.

A saloon (sedan) car or even an 4x4 that is fully occupied may be responsible for less greenhouse gas per kilometer travelled per person than a suburban train that is a quarter full, the researchers calculate.

"Government policy has historically relied on energy and emission analysis of automobiles, buses, trains and aircraft at their tailpipe, ignoring vehicle production and maintenance, infrastructure provision and fuel production requirements to support these modes," they say.

So getting a complete view of the ultimate environmental cost of the type of transport, over its entire lifespan, should help decision-makers to make smarter investments.

For travelling distances up to, say, 1,000 kilometres (600 miles), "we can ask questions as to whether it's better to invest in a long-distance railway, improving the air corridor or boosting car occupancy," said Chester.

The paper appears in Environmental Research Letters, a publication of Britain's Institute of Physics.

The calculations are based on US technology and lifestyles.

It used 2005 models of the Toyota Camry saloon, Chevrolet Trailblazer SUV and Ford F-150 to calibrate automobile performance; the light transit systems in the San Francisco Bay Area and Boston as the models for the metro and commuter lines; and the Embraer 145, Boeing 737 and Boeing 747 as the benchmarks for short-, medium- and long-haul aircraft.

Why a House is Not a Home

I have been reading a little less law and a little more law-related literature this past year, and I wanted to share with you a great insight from the book I am reading right now, Charles Dickens' Barnaby Rudge. By the way, if you are looking for a great law-related novel for the beach this summer, there is nothing better than Dickens' Bleak House, a great novel about the law and so much more. But I digress!

Here is the passage from Barnaby Rudge, about how a home is so much more than a building:

Although the best room of the inn, it had the melancholy aspect of grandeur in decay, and was much too vast for comfort. Rich rustling hangings, waving on the walls; and, better far, the rustling of youth and beauty's dress; the light of women's eyes, outshining the tapers and their own rich jewels; the sound of gentle tongues, and music, and the tread of maiden feet, had once been there, and filled it with delight. But they were gone, and with them all its gladness. It was no longer a home; children were never born and bred there;the fireside had become mercenary--a something to be bought and sold--a very courtezan: let he who would die, or sit beside, or leave it, it was still the same--it missed nobody, cared for nobody, had equal warmth and smiles for all. God help the man whose heart ever changes with the world, as an old mansion when it becomes an inn!

Barnaby Rudge, Chapter 10.

Q & A Next Wednesday

Keep a Weather Eye Open by Josh Duncan

There will be an optional Q & A session next Wednesday (April 22) at 1 PM in Room 113.

Fee Simple Absolut

Apparently, there is an entire line of Property t-shirts available for law students seeking to make a fashion statement. See PropertyProf blog.

My "White Paper" on Nebraska Supreme Court

Schill's "Bloody Sock"


Schill Waves Goodbye











Although this is not a "property" article, I thought some of you might be interested in reading my recent Federalist Society "white paper" on the Nebraska Supreme Court:

Umpires, Not Activists: The Recent Jurisprudence of the Nebraska Supreme Court

I am not assigning this, just making it available for those of you with an interest in court watching and the Nebraska Court.

Legal Theory Blog

This is a great site for 1Ls wanting to learn more about legal theory. Prof. Solum has a feature, called the legal theory lexicon, in which he helps you understand various terms used in law and legal literature. For example, his most recent entry helps you understand "ex post" and ex ante" as they appear in legal literature:

If I had to select only one theoretical tool for a first-year law student to master, it would be the ex post/ex ante distinction. (Of course, this is cheating, because there is a lot packed into the distinction.) The terminology comes from law and economics, and here is the basic idea:

• The ex post perspective is backward looking. From the ex post point of view, we ask questions like: Who acted badly and who acted well? Whose rights were violated? Roughly speaking, we associated the ex post perspective with fairness and rights. The ex post perspective in legal theory is also loosely connected with deontological approaches to moral theory. In general jurisprudence, we might associate the ex post perspective with legal formalism.

• The ex ante perspective is forward looking. From the ex ante point of view, we ask questions like: What affect will this rule have on the future? Will decision of a case in this way produce good or bad consequences? Again, roughly speaking we associate the ex ante perspective with policy and welfare. The ex ante perspective in legal theory is loosely connected with consequentialist (or utilitarian or welfarist) approaches to moral theory. In general jurisprudence, we might associate the ex ante perspective with legal instrumentalism (or legal realism).

Of course, this very basic introduction to the distinction is oversimplified. For example, a fairness-based theory of torts might consider future consequences in assessing legal rules, and even utilitarian legal theories must use ex ante information when evaluating particular cases.

Why is the distinction between ex ante and ex post so important? Because it marks an important theoretical divide between consequentialist and deontological approaches to legal theory. Consequentialists, we might say, simply don't care about the question whether A has violated the rights of B, for their own sake. Rather, a consequentialist cares about the consequences of attaching liability to those who act like A did. Ex ante, is a strict liability rule or a negligence rule more efficient? Deontologists, on the other hand, care very much about who has acted rightly and wrongly. In tort law, for example, corrective justice theories of tort are associated with the ex post perspective. A should be liable to B, only if A has acted wrongly.

If you are a first-year law student, you might make a habit of asking yourself questions like the following:

Is the rule in the case I've just read, just or fair from an ex post perspective?
Will the rule produce good consequences (as compared to the alternatives) from an ex ante perspective?

James Madison on Property--1792

"America's Pastime" still life by Josh Duncan (the glove is the one I still use when coaching my daughter's softball)


Here is some light reading while sitting on the beach during spring break.

"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.