McMillan v. Iserman

Property owners in a subdivision had the right to amend covenants, even to make them more restrictive, by a three-fourths vote of the property owners.

The property owners amended the restrictions to "prohibit the use of any subdivision lots for a state licensed residential facility" for the mentally handicapped.

The Court says that this is generally okay because property owners took with notice of the fact that the restrictions could be amended under the policy. p. 655

However, amended restrictions may not be applied retroactively:

"Even with the knowledge that deed restrictions can be amended, lot owners have a right to rely on those restrictions in effect at the time they embark on a particular course of action regarding the use of their property, and subsequent amended deed restrictions should not be able to frustrate such action already begun." P. 655-656.

Finally, notice that restrictions designed to prohibit group homes for the mentally handicapped may be "unenforceable on public policy grounds." P. 656

What about a group home for recovering drug addicts or a half-way house for convicted prisoners about to be paroled?

No Class Friday April 1

This is not an April Fools joke!

I need to use the 5th of our 7 class cancellations for this coming Friday.

We will still use the last 2 cancellations to cancel the last week of classes, and I will have an optional Q & A session that last week in lieu of a class in which we cover new material.

An optional Q & A session should help clear up any difficulties some of you may be having just prior to the exam.

No Class Friday March 18

Just a reminder--as I said in class previously, we will be using the 4th of our 7 cancellation days this Friday March 18, the Friday before Spring Break.

Rick Duncan

Ronald Reagan Days

I am using two of our mandatory class cancellations on February 16 and 18 to celebrate Ronald Reagan's 100th birthday!

Just kidding. His birthday is actually on February 6, but I have some family obligations next Wednesday and Friday, so our only class next week will be on Thursday February 17.

Tiny NYC Apartment at $1750 per month

Just for fun!

Here is a link to a NYT piece on how to live large in the big city in 200 square feet. Here is an excerpt:

The fourth-floor apartment, for which she pays $1,750 a month, consists of a single room, just over 200 square feet, with a bed, a desk, a dining table and a couple of swivel chairs.

$1.8 Million Fee for Pro Bono Case

link

Although some critics object to "pro bono" lawyers recovering fees, remember the representation is always free to the client; it is the governmental defendant who is liable for fees if, and only if, it has abused the constitutional rights of the plaintiff. The fees are awarded as a disincentive to governmental lawlessness.

Taxes and Redistribution of Wealth

It is possible to view taxes as a kind of taking. This is particularly true when the tax code is designed to "spread the wealth" (i.e. to take income from some for the purpose of wealth transfer or "social justice"). Here is an interesting post from the blogosphere:

Interesting data from the Tax Prof blog:

Top 1% Pay More Income Tax Than Bottom 90%

The Tax Foundation has published Summary of Latest Federal Individual Income Tax Data:

New data released by the IRS today offers interesting insights into the distributional spread of the federal income tax burden, new analysis by the Tax Foundation shows. The new data shows that the top-earning 25% of taxpayers (AGI over $62,068) earned 67.5% of the nation's income, but they paid more than four out of every five dollars collected by the federal income tax (86%). The top 1% of taxpayers (AGI over $364,657) earned approximately 21.2% of the nation's income (as defined by AGI), yet paid 39.4% of all federal income taxes. That means the top 1% of tax returns paid about the same amount of federal individual income taxes as the bottom 95% of tax returns.

The recent notion of an income tax "cut" for people who pay no income taxes is perhaps the clearest example of tax laws that literally take from Citizen A and give to Citizen B.

Perhaps this is what Ben Franklin warned us against when he said:"When the people find that they can vote themselves money, that will herald the end of the republic."

Should the Takings Clause of the Constitution be interpreted to provide some limits on the power of government to use tax laws to "take" wealth from some classes of taxpayers in order to transfer that wealth to others?

Handout Available

Notice that the handout for the Keystone case, referred to in assignment no. 5, is available in the Handout racks near the South Faculty office suite on the second floor of the library.

For Wednesday, please be prepared to discuss Assignment 3 and 4.

Rick Duncan

Reminder--Mid-year Exam is Closed Book

Just a reminder--the Mid-year Exam is a closed book exam. You may not have any written or printed materials with you while taking the exam, nor may you consult any written or printed materials before turning in your exam answer sheet.

All you need to bring are several number two pencils to mark your answers on the answer sheet.

Q & A Session This Thursday

Following class this Thursday, December 2, we will have our final Q & A session for the Fall Semester.

This is a good chance to ask your questions before the exam, so come prepared with your questions.

By the way, the best kinds of questions as an exam approaches are ones you have struggled with on your own first. If something in your notes doesn't make sense, do some work to try to figure out why it doesn't make sense. Re-read the relevant cases or materials. Do some hard studying. If you can resolve it by working through it, you will own it forever. If you still can't figure it out, then maybe I can help direct you.

Announcements

1. No class this Thursday Novenmer 18 (I will be speaking at UMKC Law)

2. Notice that I have deleted one assignment from the syllabus. This was some material that I have not covered the last few years, and I prefer to spend a extra class on Landlord & Tenant in lieu of an extra class on co-tenancies.

FYI--"A Modest Proposal to Avert Another Mortgage-Backed Securities Disaster"

I am not assigning this, just sharing it for those who might be interested. From PropertyProf blog:

November 15, 2010

A Modest Proposal to Avert Another Mortgage-Backed Securities Disaster

At its core, the mortgage-backed securities crisis is the product of an inadequately regulated mortgage-industry system.  This inadequacy resulted in a massive transfer of wealth from you and me to lenders and investment banks, and an economic crisis that continues the plague the country.
So I've been playing a thought-game: what's the smallest amount of regulatory reform that would completely prevent this disaster from recurring?
I've got a nominee.
Before I explain it, I need explain how we got to the point where we need it.  To that end, here's the mortgage-backed securities crisis, in 10 easy-to-understand steps!
(follow the bump)

OK, here's the mortgage-backed securities crisis in 10 easy-to-understand steps:

(1) At one time, lenders who made mortgage loans kept those loans in-house; they got the benefit from the loan payments, and they got the cost from default.  Their insurance against the cost of default was foreclosure and sale. 

(2) That system shut down during the Great Depression.  To get home lending working again, the federal government created a brilliantly-conceived secondary market for mortgage loans: lenders could make loans, and then rather than hold onto them, sell them to someone else.  This lessened lenders' risks, so they were more willing to make loans.

(3) The entity that purchased these loans from lenders was an newly created government agency called the Federal National Mortgage Association (FNMA).  But -- and this is critical -- the FNMA would only purchase loans that met certain quality standards.  The borrower had to produce a significant downpayment (usually 20%), borrow money at a fixed-rate, take a long-term loan, and could not take on debt that exceeded a modest debt-to-income ratio.  That meant that (a) the risk of default, and thus foreclosure, was quite small, and (b) the U.S. housing market was remarkably sound and stable.

(4) The FNMA eventually held over 80% of the mortgage loans in the United States.  It was ideologically distasteful to have a government agency hold such a huge portion of private loans in a capitalist economy, so FNMA was privatized and became the company known as Fannie Mae. 

(5) Investment banks and new lenders began to compete with Fannie Mae to purchase loans on the secondary market, because they could pool the loans together and sell securities in the pool to investors. 

(6) Investors loved these mortgage-backed securities, because they were perceived as a very safe and reliable investment: after all, the U.S. housing market had been remarkbaly sound and stable.

(7) Investment banks and lenders competed with Fannie Mae by purchasing loans that did not meet the FNMA's quality standards: no money down, no income-to-debt ratio, adjustable rates, short term loans.  Fannie Mae responded by lowering its standards.  A race to the bottom began.  Soon, Fannie Mae and the investment banks were securitizing pools of very,very low-quality mortgage loans. 

(8) Investors, relying on a historically stable U.S. housing market without considering that the conditions that created that stability (i.e., FNMA's quality standards) had been undermined, continued to buy up mortgage-backed securities.

(9) Lenders, who made their profits not by receiving a stream of payments on loans, but instead by making loans and instantly selling them on the secondary market, had every incentive to make as many low-quality loans as possible as quickly as possible.

(10) Borrowers took on loans they couldn't afford and would have to re-finance in short order.  They secured those loans with their homes.

It was a house of cards that couldn't possibly last, and both lenders and investment banks knew it.  Borrowers didn't know it.  Investors in mortgage-backed securities didn't know it.  But lenders and investment banks knew it.  It is bitterly ironic therefore that we, through the Bush Administration's TARP rescue program, saved lenders and investment banks, but not borrowers or investors.
Now we are caught in a continuous spiral.  Foreclosures flood the market, which drives down home values.  Home values fall below the amount outstanding on short term mortgage loans that need to be re-financed.  Those homes can't be re-financed, because their re-sale value in the event of foreclosure won't cover the amount borrowed.  The homeowner in need of re-financing now must either pay the entire principal on the loan, or go into foreclosure.  Foreclosures flood the market, which . . . . You get the grim picture.
I don't know how to get us out of this mess, but I do have a modest proposal to help prevent it from recurring.  One solution would be to keep Fannie Mae nationalized, re-convert it to the FNMA, and re-impose its old quality standards on the secondary market.  But politically?  Ain't happening.  Apparently it's still, despite everything we've been through, too ideologically distasteful.
So how about this?  From now on, lenders have to keep a certain percentage of their loans in-house.  Say 20%.  But here's the key: they don't get to choose which ones.  That's decided randomly.  No lender who has a 20% chance of having to bear the cost of a low-quality loan is likely to make one without some serious pause.  Think of it as forcing lenders to internalize some of the risk of their behavior.
One regulation.  Call it the 'toxic-asset roulette' rule.  The rest of the de-regulated mortgage-backed securities system can stay in place.
What do you think?  What are your ideas?
Mark A. Edwards

Announcements

A few quick announcements.

1. I will schedule another Q & A session for Thursday November 11 from 3:25 PM until I answer all your questions. This is an optional session we are doing to make up the classes I have had to cancel.

2. This Friday's class (Nov. 5) will end a little early (about 2:45). I am going out of town and need to leave a little early.

3. Just a heads up. Right now it looks like I will be speaking at UMKC Law School on Thursday Nov. 18. There is a chance this engagement will be postponed so I am not canceling class yet. Just giving you a heads up as to the possibility that class will be canceled.

4. I will also schedule a make-up Q & A session for the week after Thanksgiving. Time and place to be announced.

Review Session--Some Examples to Discuss

1. Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre "to Jack Bauer and the heirs of his body by his wife Susan." What interest does Bauer have? Does anyone else have an interest?

2. Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre "to Jason Street for life." Jason Street then conveys his interest "to Tim Riggins." What interest does Riggins have?

3. Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre "to Jack Reacher for life, then to such of Reachers' children as survive him." At the time of the conveyance, Reacher is alive and has one child, Jack Junior. What interest does Jack Junior have? What interest does Grutz have?

4. Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre "to Kevin Youkalis for life, then to his widow and her heirs." At the time of the conveyance, Youkalis was alive and married to his lovely wife, Mary. What interests are created by this conveyance?

5. Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre "to Steve Earle for life, and if Joe Ely marries during Steve Earle's lifetime, then to Joe Ely and his heirs, but if Joe Ely does not marry before Steve Earle's death, then to the children of Steve Earle who survive their father." At the time of the conveyance, Steve Earle is alive and has only one child, an 11-year-old daughter, and Joe Ely is alive and has never married. What interests are created by this conveyance?

6. Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre "to Dice K for life, and if Jason Varitek survives Dice K, then to Jason Varitek and his heirs." What interests are created by this conveyance?

7. Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre"to Dice K for life, then to Jason Varitek and his heirs, but if Jason Varitek does not survive Dice K, then to Jon Lester and his heirs." What interests are created by this conveyance?

Make Up--Come With Yor Questions This Thursday!

Sorry for canceling class on such short notice Friday. I had a family emergency and I was the only parent in town.

Here is what I plan to do about a makeup class.

I will schedule a couple of optional "question" sessions, probably immediately following class on Thursday.

The first one will be this Thursday after class (from 3:20 PM until you run out of questions).

I know many of you are struggling with Estates and Future Interests, so this is a good time to get some of the fog lifted.

Why Sprawl is Sometimes a Human Good

Here are some thoughts about a property issue we are not covering right now. But still a very interesting issue.

There are some out there in law and politics who believe everyone should live, close together, in an urban environment. They wish to enact public policies that make it difficult to get from the country to the cities.

I am a fan of roads that connect the suburbs and the country to the cities, because these roads make it possible for people to earn a living in the city while living and raising their families in the country. I was recently reading a wonderful book--The Necessity of Empty Places by Paul Gruchow--that includes an essay on the Nebraska Sandhills. Here is an excerpt I love (p. 22):

I remembered happening upon a settlement on a knoll. It was scarcely even a village. A few houses, an elevator, a gas station. Mostly it was given over to an enormous cemetery.The striking thing about the cemetery was not that there were so many graves, but that the spaces between them were so wide. These people needed as much elbow room in death as in life.

And here is another wonderful passage about the country roads of rural America (p. 58):

It is like the difference between an interstate expressway and a county highway. An interstate is broad and swift and in its own way it keeps to the level. You can drive on an interstate across the almost endlessly enchanting of countrysides and encounter only an unrelieved monotony. The expressway exists in its own world, an unwalled tunnel, and moves at its own urgent pace....

The county road, on the other hand, moves in and through the landscape and exists as one more feature of it. Where there is a tree and a sun, the road falls under shadow; where there is a stream, the road follows down one bank, across the water, and up the other bank; where a tall hill intervenes, the road goes around rather than through it and the traveler enjoys the sensation of having moved among the hills; at the village, the road unhesitatingly takes it in, and your own pace slows to accommodate the taking in, rather than swooping to the right or left around the settlement at a curve calculated for high-speed safety. A stray cow might cross in front of you, and you will be obliged to stop to let it pass and so you will chance to hear the song of the meadowlark on the fence post. The hay wagon ahead cannot be gotten around; you are forced to reduce your own speed to the local standard, and so you see the marsh hawk circling above a pothole.

This last, wonderful excerpt reminds me of my commute to the law school each day. Seeing wild turkeys, and hawks, and foxes, and cattle, and deer, and hearing the song of the meadowlark each day makes me, I think, a better teacher and a better husband and father. The best life might be to live and work in the country. But we often have to settle for the second-best in life, and the second-best for me is to work in the city and live in the country. I thank God for sprawl, for roads that connect the empty places to the crowded places and enable me to live in the one and work in the other.

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.