"Asset Forfeiture Abuse"

Here is an item from the PropertyProf blog thatdiscusses an issue that recently came up in class:

Asset Forfeiture Abuse

From Volokh: John Ross of Reason has a nice article outlining the problem of asset forfeiture abuse, as illustrated by the scandalous practices in the nation’s capital:

Jerrie Brathwaite was not in her car when Washington, D.C. police seized it in January 2012. She had lent her 2000 Nissan Maxima to a friend, and that friend was pulled over, searched, and found to be in possession of drugs. A year later, Braithwaite—who has never been charged with a crime—still doesn’t have her car back, and no one from the Metropolitan Police Department (MPD) will return her calls.

Brathwaite, 33, is knee-deep in the murky world of civil asset forfeiture, where confiscated cars, cash, and other property disappear into police coffers, and where legal recourse for owners is confusing, slow, and expensive. Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt....

Brathwaite’s situation—and the MPD’s behavior—are not uncommon. Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit.

Ilya Somin has previously covered this topic here.
Steve Clowney

SCOTUS to Hear Takings Case This Week

Here is a summary from the Environmental Law Prof Blog:

SCOTUS Grants Cert in Takings Case (Koontz v. St. John's)

Yesterday I noted that the U.S. Supreme Court was set to consider a cert petition in the “exaction” takings case of Koontz v. St. John’s River Water Management District.  Today, the Court granted that petition, which the Pacific Legal Foundation had filed on behalf of Coy Koontz this past spring. 
The Koontz case raises two important questions: (1) whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands; and (2) whether the Nollan/Dolan test is applicable at the point in time when an exaction is merely proposed.  Drawing from several of my earlier posts on Koontz (available here and here), below I will attempt to provide a primer on the facts and the issues at stake.
-----
Local governments routinely attach conditions, or “exactions,” to development permits in an effort to address the environmental and infrastructural impacts of individual projects. However, presumably to protect landowners from exactions that are either unrelated or disproportionate to the problems caused by their proposed development, the U.S. Supreme Court curtailed the exercise of this power in its conveniently rhyming Nollan and Dolan decisions by establishing a constitutional takings framework unique to exaction disputes. Under this peculiar framework, it is the government—as the defendant— who has the burden of proving that the exaction bears both an “essential nexus” to and “rough proportionality” with the development’s impacts.
Here, Mr. Koontz hoped to construct a shopping mall on his 14.2-acre lot, and sought permission from the Water Management District to dredge and fill wetlands within that lot that were part of a designated riparian habitat protection zone. While the Water Management District apparently could have exercised its authority to deny this request, it instead identified several possible exactions that, if accepted by Koontz, could allow for the development to proceed. Koontz, however, refused these proposals, and the government ultimately denied the development request outright.  At the appellate level, Koontz prevailed on the theory that the Nollan/Dolan test (1) applies to exactions beyond those that require public occupation of private lands, and (2) is applicable at the point in time when an exaction is merely proposed.
The Florida Supreme Court reversed.  On the first issue, the court sided with a considerable majority of the many state and lower federal courts that have addressed the question of whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands by answering this question in the negative.  Still, select courts have answered the question in the affirmative, even in the face of arguably contrary dictum in the U.S. Supreme Court’s unanimous opinion in Lingle v. Chevron in 2005.  
The second issue seemingly has not been addressed in the lower courts at near the same depth as the first.  Nearly all of the many lower court applications of the Nollan/Dolan test have addressed final permit approvals, leaving the Florida Supreme Court with few cases on which to draw. Indeed, prior to Koontz, it appears that in only three instances—one federal district court opinion (William J. Jones Insurance Trust v. City of Fort Smith, 731 F. Supp. 912 (W.D. Ark. 1990)), one federal circuit court opinion (Goss v. City of Little Rock, 151 F.3d 861 (8th Cir. 1998)), and in a decade-old dissent from a denial of certiorari authored by Justice Scalia and joined by Justices Kennedy and Thomas (Lambert v. City & Cnty. of San Francisco, 120 S. Ct. 1549 (2000))—did members of the judiciary assert that a proposed exaction could, in and of itself, implicate the Takings Clause. [There arguably may be select other cases, such as City of Carrollton v. RIHR, Inc. 308 S.W.3d 444 (Tex. App. Dallas 2010), that fit the bill, as well.]  Across these cases, the opinions provide thin and contradictory guidance on the complex questions surrounding whether such a novel claim presents a legitimate takings issue.
The Florida Supreme Court ultimately decided in Koontz that proposed exactions are not subject to the Nollan/Dolan test.  I found it somewhat surprising that the Court did little to confront the rationale set out in any of the few preceding cases on the topic, even though, of course, none were binding upon it.  And it was even more surprising that the Court dedicated only two pages of its opinion to this imposed-versus-proposed issue, and provided little justification for its conclusion. The Court said only that applying the Nollan/Dolan test to proposed exactions would prompt local governments to issue more outright denials “rather than risk the crushing costs of litigation.”
One might contend that applying the same tests to all conceivable exactions, whether they are proposed prior to an outright permit denial or imposed in a final development approval, makes sense. Otherwise, this argument might suggest, property owners would be beholden to the government’s extortionate exaction propositions, lest they side with the empty alternative of an absolute development prohibition. There is an instinctive appeal to the argument (which presumably must be grounded in the quite murky jurisprudence surrounding the “unconstitutional conditions” doctrine) that the denial of an application based on refusal to comply with an exaction demanded by the government is indistinct from a permit conditioned on that exaction.  In a brief post on The Volokh Conspiracy this afternoon, Ilya Somin (George Mason) offers support for this type of approach.
However, there are at least three reasons to suggest that the above approach is inapt.  First, where a proposed exaction is refused or withdrawn, it seems that no property interest has been "taken" from the applicant that can be protected by the Takings Clause. Second, judicial speculation on hypothetical exactions and their hypothetical economic impacts poses a wholly unmanageable system that could require courts to review countless cases that do not present actual controversies (and, in the process, further complicate the line separating due process and takings review). Third, and arguably most importantly as a matter of legal policy, burdening governmental entities with possible takings liability for statements made during pre-decisional negotiation sessions will place a chilling effect on regulator-landowner coordination.
I expound on the above ideas in this pre-Florida-Supreme-Court article.  In addition, Mark Fenster (Florida) authored a very interesting post-Florida-Supreme-Court essay on the topic.  Please stay tuned to the Environmental Law Professors Blog for updates on this latest takings case headed to the U.S. Supreme Court.

Recent Religious Land Use Litigation

From ReligionClause blog:

Catholic Soup Kitchen Files RLUIPA Challenge To Denial of Permit To Operate

The Day reports that on Friday, the Catholic Diocese of Norwich, Connecticut filed suit in federal district court challenging the decision by the Norwich city planning commission not to extend a temporary permit allowing the St. Vincent de Paul Place soup kitchen to continue to operate in a former Catholic school building. Neighbors had complained of trespassing, foul language and litter by soup kitchen patrons.  The Diocese invokes the Religious Land Use and Institutionalized Persons Act, saying that it has been treated differently than other similar facilities, both religious and non-religious.

We will be discussing RLUIPA in a few weeks.

Mid-Year Exam Results

      Katie Duncan and our next-door neighbor, Buffy the Buffalo



Here is the breakdown for the Midyear Exercise:

5 Students scored 100 points (bravo!)

13 Students scored 96 points

4 Students scored 92 points

8 Students scored 88 points

9 Students scored 84 points

4 Students scored 80 points

4 Students scored 76 points

6 Students scored 72 points

2 Students scored 68 points

3 Students scored 64 points

1 Student scored 56 points

2 Students scored 52 Points

3 Students scored 48 points

1 Student scored 36 points

2 Students scored 32 Points

The test median was 84 points

The average score was 80.04

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

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

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

I am quite pleased with the performance of the class as a whole.

I hope you have a great Spring Semester!

Are Promises "to Kiss your a--" Legally Enforceable

Some winter break legal fun!

Here is a great post from the Volokh blog about this importamnt legal issue:

Motion to Kiss My Ass III

Eugene Volokh • December 27, 2012 5:04 pm

For the first, see Washington v. Alaiimo. For the second, see State v. Law. For the latest, see this quote from champion boxer Juan Manuel Marquez, as reported in BoxingScene.com (though I admit that this likely won’t get to court):

[Trainer Freddie] Roach told me if I would would come out clean in the anti-doping tests, he would kiss my ass. The Nevada Commission has announced that both Pacquiao and I were negative for doping. That means Roach has to kiss my ass, and then some. He openly said that I had doped, and now he has to pay the consequences.

Rob Green (Abnormal Use) explains why a court would not indeed order Roach to kiss Marquez’s ass.

Be sure to follow that link to Rob Green's careful analysis of the enforceability of such promises.

Q & A Session Moved to Courtroom

Same time, different place.

Thursday 11 AM in the Courtroom

Q & A Session Thursday at 11 AM

                           Hannah Duncan as Clara in 2011 Nutcracker at the Lied





As promised, I will show up tomorrow in Room 113 at 11 AM for an optional Q & A session.

See you then,

Vegetarian Thanksgiving

At my house, we have smoked turkey, of course, but we also serve a wonderful old Irish dish called Kilcallian. (kill-cal-yun)

It's easy to make. Peel the carrots and turnips (60% carrots, 40% turnips) , boil and mash them together with lots of butter, salt and pepper. And enjoy a little bit of Ireland! Recipe courtesy me granma, the late Margaret McCabe.

Class Schedule

As we have discussed, the class schedule is set up with a few extra minutes each week to allow for two classes to be cancelled without the need for a make-up.

Those two pre-scheduled cancellations will take place next week.

I will be busy with preparing and presenting a CLE at the Nebraska State Bar Annual Meeting next week so the follwing classes will be cancelled:

1. Thursday October 25
2. Friday October 26.

Class Schedule

There will be no class on Thursday October 11.

That is our first of three scheduled class cancellations.

In lieu of regular class, we will be attending the Human Trafficking program at Noon on the 11th.

October 11--Global and Local Perspective on Human Trafficking

In lieu of a make-up class for conflicts that are coming in a few weeks, I am assigning you to attend the Human Trafficking conference: October 11 @ Noon in the Auditorium.

People are not property, and human trafficking is a truly global issue of human rights. Each person owns his or her own body, and I think it is very important to learn about the issues that will be discussed at this conference.

It won't be on the exam, but it is very important that we be aware of this issue.

Fderalist Society Has an Interesting Speaker Thursday

WHEN:    Thursday, Sep. 27th at 12:10pm

WHERE:   Room 109

WHO:      Christina Hoff Sommers - "The War Against Boys: What is Right and Wrong with Feminism"

 

Ms. Sommers has appeared on numerous tv programs including 60 Minutes, Oprah Winfrey Show, and The Daily Show. Her book "The War Against Boys," was a New York Times "Notable Book of the Year." She is a resident scholar at the American Enterprise Institute.

WHY:      FREE Mexican Food catered by Tico's AND drinks provided - no need to bring your own!!

PLEASE RSVP BY NOON ON WEDNESDAY SEP. 26th to danielle.myers88@huskers.unl.edu!!

Sponsored by the Federalist Society

It Came Out of the Sky

 \

 I can't get away from those finders cases!

This is not a hypothetical. It actually happened to me.

Last night, when I was giving my daughter and two of her friends a ride home from the horse barn where our horse, Easy's Delight, is boarded, we saw a flaming, metallic object fall out of the sky and land in a farmer's field near my home.

I did not go dig it up and take it to a new and used meteorite store to sell. But I thought about Property class! And how property is ubiquitous!

Have a great weekend.

"How to Read A Legal Opinion: A Guide for New Law Students:"

My wife's least favorite (and my favorite) rental house on the beach at Sandbridge




Here is a link to Prof. Orin Kerr's helpful essay for 1Ls. Just something you may find helpful early in your legal career.

Assignment For First Class

For our first class, be prepared to discuss the first assignment on the list of Assignments for Fall 2012 immediately below.

Property in Harry Potter

Marc Roark has a blog post here.

And here is an excerpt:

One of the many projects I have been working on this summer is writing a paper on the Property theory present in the Harry Potter novels (titled When Chattels Choose).  One of the truly interesting things about property represented in Harry Potter is the ambiguous relationship of ownership to the property. In the legal world, we see ambiguity in property most visually resolved in torts landscape — nuisance as the ever developing tool of property allocation.   We could even argue (as I will later this year) that nuisance theory is quite akin to intellectual property disputes.
For now, lets turn to how property disputes are resolved in the Harry Potter world.  Consider all the property that is described in the magical world — just about every piece of property may be reoriented to new ownership, even without the express consent of the “owner” — a choice of the chattel, we might say that alleviates the need for disputes. Let me offer just a few examples:

•  After Sirius Black dies and Dumbledore informs Harry that he is the heir of 12 Grimmauld Place, Dumbledore considers it questionable whether Harry is actually entitled to Grimmauld place and asks Harry to perform a simple test to determine his legitimacy.   The property orients itself to its proper frame of ownership, regardless of the will of the previous owner and notwithstanding the acts or non-acts by the party actually entitled to ownership.  See Harry Potter and the Half Blood Prince
• Wands “choose” the master.   And wands may be reoriented if “captured” properly.  Consider the distinction between Harry disarming Draco Malfoy to become the master of all wands that Draco Malfoy was master of (including the Elder Wand) and Voldemort killing Severus Snape expecting to become master of the Elder Wand thereby.   The wand simply chose whose conquest mattered more for the purposes of its loyalty.  See Harry Potter and the Deathly Hallows 
• The Sword of Gryffindor is described as cultural property by two different characters. First, the Minister of Magic Scrimgeour, after informing Harry that he was given the Sword as a part of Dumbledore’s will, later informs him that the sword is not susceptible of ownership.  Rather, the sword is cultural property which may present itself to any Gryffindor.   Interestingly, the Goblin Griphook describes the sword as cultural property, though not that belonging to Gryffindors, but belonging to Goblins, since they made the sword.  The sword apparently chooses the cultural affinity of its ownership by choosing Harry and then later choosing Neville Longbottom.  See Harry Potter and the Deathly Hallows
• Snitches (the golden balls used in quidditch games are said to have “flesh memories. As Scrimgeour says to Harry: “ A snitch is not touched by bare skin before it is released, not even by the maker, who wears gloves.   It carries an enchantment by which it can identify the first human to lay hands on it, in case of a disputed capture.  This snitch” — he held up the tiny golden ball – “will remember your touch, Potter.” Harry Potter and the Deathly Hallows

There are no doubt others, but what seems clear is that property has the capacity of choice in the world of Harry Potter.  That impartial choice acts as the great equalizer that by forcing “fair” redistribution of property according to certain characteristics and with certain presumptions of fairness.  First, it seems the the magical world is not adverse to basic rules of construction that equate to fairness.  First capture of the snitch equates to fleshly connection upon first capture; capturing a wand fair and square gives one rights in the wand (and others apparently); and property may be passed from one wizard to another according to expectations that they have.  These rules are mirror images of our world of property allocation with the exception that magic alleviates the need for dispute resolution — the property simply knows to whom it should belong.  Unlike a fox or whale, which may be fairly disputed who began the pursuit, who caused the capture, or whether the party who secured the bounty did so fairly, the magical world’s fairness quality is determined not by ambiguity, but by clearly choosing chattels.
What caught my attention, though in thinking through this scheme is the irony of property choice theory that ceases to exist outside Rowling’s magical world.  Again, consider the most obvious form of cultural property — the Sword of Gryffindor.   One could draw an analogy to Rowling’s own work as being cultural property — surely Harry Potter is very much with all of us as it was with Rowling for so long.

Interesting Abandoned (or not abandoned) Property Case

From Yahoo News (link)

Woman who lost Ark. lotto ticket entitled to $1M

  SEARCY, Ark. (AP) — An Arkansas woman who cashed a $1 million lottery ticket may have to give up the winnings to a woman who threw away the ticket after she bought it, according to a judge's ruling Tuesday.

The judge decided that Sharon Duncan was entitled to the prize money, not Sharon Jones, who claimed the prize money after she took the ticket from a trash can of discarded lottery tickets at a convenience store in Beebe, a city about 40 miles northeast of Little Rock.

Jones' attorney, James Simpson, said he plans to appeal. Jones had testified that she already spent some of the money on a new truck and cash gifts to her children.

Simpson noted that Duncan testified she threw away the ticket after the read-out on a ticket scanner said, "Sorry. Not a winner." The attorney argued that people shouldn't be allowed to throw items away and then say, "'ooh, I want to un-abandon it.'"

"We'd have garage-sale law all over the place," he said. "It became trash when someone threw it away."

White County judge Thomas Hughes, however, said Jones never met the burden of proof that Duncan abandoned her right to claim $1 million.

"The $1 million was never found money," Hughes said.
Earlier Tuesday, Jones testified that she gathered a handful of discarded tickets from the trash can — as she had done many times before — and said there was no sign alerting customers not to take tickets.

That contradicted Super 1 Stop store manager Lisa Petriches' earlier testimony that she had taped a sign that read "Do not take" on the can. But a former store clerk testified that Petriches posted the sign only after Jones claimed the prize.

Petriches brought the lawsuit against Jones, and Duncan joined it after the judge said at a January hearing that she may be the true owner of the ticket. Hughes ruled that Petriches and the store's owner, Louie Dajani — whose corporation, Summer One LLC, joined the suit — weren't entitled to anything.

The judge instructed the winning side to write the judgment for his signature, and it will become official once Hughes signs it. Jones' attorneys will then have 30 days to file an appeal.

Hughes found that the evidence weighed in Duncan's favor that she bought the winning ticket, even though lottery records and store security video didn't synch up to the precise timing of the purchase.

Arkansas Lottery Security Chief Lance Huey testified that he investigated the circumstances of the ticket falling into Jones' hands. He said the lottery was satisfied with the investigation and awarded the prize.

Duncan's attorney, James "Red" Morgan, argued that she simply made a mistake by throwing away a $1 million ticket and that the only right she willingly parted with was to enter the ticket for the possibility of a secondary prize.

 

Q & A Session: Friday April 20

Today's class is our last official class. However, as promised, I will show up next Friday, April 20, for Q & A sessions with each section. Same time, same place as our regular class sessions.

"Aesthetic Nuisance in the News"

Here is a fun post from the PropertyProf blog:

Aesthetic Nuisance in the News

You just have to read a news story that begins like this:

They say a man's home is his castle, but does that include the right to turn it into an eyesore?

On a quiet side street south of Daytona Beach, Robert Hodges' corner house is painted randomly with purple, yellow, orange, green and pink. A toilet and rusting bike stand by a tree, old pieces of a wood deck are scattered and a large sand mound is decorated with skis, golf clubs, plastic ducks and Christmas ornaments. Criss-crossing the front yard are several clotheslines featuring boxers, a pair of hot-pink feathery skivvies and colorful extra-large bras.

"Oh, yes, it's beautiful!" declares Hodges, a snowbird retiree from Memphis, Tenn. who prefers the moniker Prince Mongo. "It's absolutely gorgeous."

And it's his own personal protest.

Upset at complaints by neighbors over a wood deck that prompted county officials to cite him for a code violation, he transformed a $300,000 beachside home into a wildly provocative property that stands out as much as he does.

Link

Here is another excerpt from the newspaper article linked to above:

Upset at complaints by neighbors over a wood deck that prompted county officials to cite him for a code violation, he transformed a $300,000 beachside home into a wildly provocative property that stands out as much as he does.

Prince Mongo, who eagerly tells you he is 333 and from the planet Zambodia, joins the colorful cast of other Central Florida characters who used their homes as a canvas for protest, to the point of becoming neighborhood nuisances.

The late Grover Walker painted his Winter Park home a wild red, white and blue, with massive slogans and a giant American flag flying upside-down on a 90-foot flagpole. The family hosted concerts and rallies, with loudspeakers, sirens and military surplus spotlights to protest a psychiatric diagnosis that barred him from receiving veterans benefits. Seminole County's "junkman," Alan Wayne Davis, went to prison rather than removing antique aircraft parts and a giant sculpture of a human buttocks from his yard near Altamonte Springs.

Like the others, Prince Mongo is not going to back down from his fight to do with his property as he pleases.

"I'm not going to be pushed over the cliff. I have my rights, and they're being taken from me."

He has fought this code-enforcement battle, too, at his homes in Memphis, Tenn., where he is a household name as a perennial candidate for mayor. He once owned a popular pizza joint, and then a nightclub, Prince Mongo's Planet, in downtown Memphis that ran into trouble with authorities for serving liquor to minors.

But his main claim to fame was his Memphis front yards, piled with toilet bowls, mannequin heads, lampshades and traffic cones. He fought code-enforcement battles in the 1970s and in 2002, hiring highly paid lawyers to argue his case.

He even once riled neighbors near his $2 million Fort Lauderdale home, for code violations over his outdoor art, but the scuffle subsided after the complainant moved away.

He moved to the Volusia County house, south of Daytona Beach and titled under the name of his nephew, Michael Hodges, without drawing any attention.

The house was originally just like his neighbors', with white walls and a perfect lawn. But he built an outdoor deck that jutted over the county's setback requirements and was forced to take it down.

That triggered the Prince Mongo reaction: the broken deck pieces, the clotheslines, the outdoor toilet. He greets his guests barefoot, wearing a green coat and a rubber chicken. He addresses people as spirits and says the clotheslines are sending messages to Zambodia. He calls dandelions taking over his lawn his precious "buttercups."

None of his neighbors could be reached for comment, but their letters to county officials express disgust and fear. "We are all in danger of becoming victims of his irrational behavior," wrote one of his neighbors. "Wherever he's lived, he's spit in the face of everything decent."

Yet home-grown protesters like Hodges embody the rebellious spirit that helped found our nation, said Frank Farley, a psychologist at Temple University in Philadelphia and former president of the American Psychological Association.

"It's been a strong thread throughout the American story, of risk-taking, pushing the envelope, pushing the limits," Farley said. "You hear the concerns these days of government as too extensive, too intrusive.

"I could see that obviously people in his neighborhood would view it as obnoxious, and they have their concern about their money and land values.

"But maybe there is something in his message that is worth discussing, [about] these communities of ticky-tacky houses, the aura of conformity and manicured lawns."

Law professor Brad Jacob said that property rights, however, extend only so far.

"We live in communities, and our local governments have the clear authority to put restrictions on our land for the common good, for the safety, welfare and benefit of all," said Jacob, who teaches at Regent University in Virginia Beach, Va. "He has to live under the laws that everyone else does."

Attempts to enforce laws have only perpetuated the fight. Hodges has been fined once for having a junkyard and now faces another batch of code violations. But county officials can't fine him for the exterior paint job or the clotheslines because there are no rules or laws restricting them.

Volusia County Councilman Josh Wagner hopes to mediate the neighborhood battle and meet with Hodges and the neighbors to resolve the matter.

"He's not dumb. He knows the law and knows that he can't be cited for hanging 100 pieces of women's underwear, so he's pushing the limits of that," Wagner said. "But the neighbors are afraid of him."

The man at the center of the storm merely says: "I just want to be left alone."

Supreme Court Grants Cert in Takings Case

From the PropertyProf blog:

1. The Supreme Court granted cert in Arkansas Game & Fish Commission v. United States, which asks whether a temporary flooding can constitute a taking under the Fifth Amendment.

2. The issue in the case is whether government actions that cause temporary flooding of property constitute a taking. The Federal Circuit said "no."  It held that flooding can only effect a taking if it amounts to “an actual permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.”  The experts at Scotusblog have put up a list of all the briefs.  And, over at Volokh, Jonathan Adler has called the case "A Takings Claim that Even Environmentalists Could Love."

Possible New Takings Case

From the PropertyProf blog:

Will the Supreme Court Kill Rent Control?, Ctd.

Over that Volokh, Ilya Somin follows up on a potentially important takings case that the Supreme Court may decide to hear:

When I first heard about this case, my reaction was that it was probably precluded by the Supreme Court’s 1992 decision in Yee v. Escondido, which ruled that a California statute imposing rent control on mobile home parks was not a taking, even though state law allowed tenants to renew the rent-controlled leases indefinitely even against the will of the owners. I am no fan of the Yee decision, but the Court is unlikely to overrule it in the near future.

However, there is a crucial difference between Harmon’s case and Yee. In the latter, the Court emphasized that there was no permanent physical occupation of the owners’ property because “the Mobilehome Residency Law provides that a park owner who wishes to change the use of his land may evict his tenants” so long as he then uses the property for something other than a mobile home park. By contrast, as Root describes, the New York City rent control law does not allow Harmon and other landlords to evict their tenants even if they do wish to use the property for something other than rental housing. Effectively, therefore, this is a government-imposed permanent physical occupation of property.

Lane Lecture--Today at 12:10 in Auditorium

Message from Dean Poser:

We are honored and lucky today to have Stanford Law Professor Pam Karlan at the Law College to present the Lane Lecture at 12:10 in the Hamann Auditorium 

Professor Karlan is an eminent scholar of constitutional law and the co-director of Stanford's Supreme Court Litigation Clinic.  She has at times been talked about as a possible appointee to the United States Supreme Court. Her lecture is entitled Keeping Faith with the Constitution.

I urge you to take this opportunity to hear what is sure to be an excellent and thought-provoking lecture by such an accomplished and well known speaker.

Susan Poser

Please take advantage of this great opportunity!

New RLUIPA Case Filed

From ReligionClause Blog:

Islamic School Sues Over Rezoning Denial

Ann Arbor.com reports that the Michigan Islamic Academy has filed a federal lawsuit against the Pittsfield Township, Michigan Board of Trustees challenging their denial of zoning changes needed for the Academy to build a new school to replace its current overcrowded facility.  The lawsuit, alleging violations of RLUIPA as well as the 1st and 14th Amendments, claims that the township used fabricated reasons to deny the school's rezoning request. It charges religious discrimination that imposes a substantial burden on the free exercise rights of the school and its students.

RLUIPA at the Cutting Edge of the Law

Here is a post from the ReligionClause blog:

ADL Has Become Leading Defender of Mosque Construction Projects

According to a report yesterday by CNN, the Anti-Defamation League over the last few months has become a leading advocate supporting mosque construction projects around the country against local opposition.  Generally it has invoked RLUIPA to support mosque zoning applications.  The role has surprised some because of the high profile, and much criticized, opposition by the ADL last July to the proposed construction of a mosque and Islamic Center near Ground Zero in New York City. (See prior posting.)  However last September the ADL launched the Interfaith Coalition on Mosques. Last week the ADL wrote a letter, supported by the Coalition, to the mayor and city council of Temecula, California supporting construction of a 25,000 square foot mosque project there that is to be voted on today. The Coalition, however, is itself controversial. Last Friday, the president of the Southern Baptist Convention's Ethics and Religious Liberty Committee, Richard Land, withdrew from the interfaith Coalition, explaining: “While many Southern Baptists share my deep commitment to religious freedom and the right of Muslims to have places of worship, they also feel that a Southern Baptist denominational leader filing suit to allow individual mosques to be built is 'a bridge too far'." The Christian Post reports further on Land's withdrawal.

RLUIPA Handout Aailable

For those of you who did not pick up a copy of the RLUIPA handout yesterday in class, copies are available in the handout racks near the South side faculty suite.

Great "Lawyering" Advice At PropertyProf Blog

Link And here is the post:

Lawyering and Law's Limits

One of the things I try to teach students is that the job of "lawyering" often requires knowing the practical limitations of the rules and theories we discuss. For example, it's one thing to know that the law gives certain rights to your client; it's a different thing to understand how enforcing those rights will affect your client's overall interests. In the world of property law, this issue comes up with some frequency. Take land use practice, for instance, where advancing your developer client's legal rights too forcefully may lead to resentment or backlash from the public officials (or their constituents) with whom the client likely needs to maintain good working relations.
Over at Concurring Opinions, Gerard Magliocca (Indiana - Indianapolis) applies this idea to the "Who Dat" controversy that I mentioned here. Noting the public outrage over the NFL's claims to the phrase, he writes that intellectual property rights often "cannot be enforced to their limits because that would alienate potential customers." A recent incident involving Bruce Springsteen seems to bear this out. The Boss apparently has filed a copyright infringement suit against a New York bar that allowed a band to play his songs but never paid ASCAP a licensing fee for the privilege. Whatever the legal merits of the suit, some of the comments to the story suggest that there may be a public relations cost for pursuing it. Because I think it's important for students to realize this tension early in their careers, I like to provide them with these types of real world examples.
Mike Kent

Constitution Changes if Common Usage Changes

I enjoyed today's discussion about laws that "evolve" as common usage of language changes.

Let's see how this might work.

Suppose in 2011 a constitutional amendment is ratified providing that "the right of gay marriage will not be abridged." The original understanding of this amendment in 2011 is that it protects the right of same-sex couples to marry.

But now suppose 40 or 50 years pass and the common usage of the word "gay" has changed. In other words, common usage of the word gay in 2061 is that the word means happy or carefree, not same-sex sexual orientation.

Does this mean that same-sex marriage is no longer protected by the constitution, because the meaning of the word "gay" has "evolved?"

Can persons lose constitutional rights, not because the constitution is amended to repeal those rights, but because the common usage of language contained in the constitution changes over time?

Suppose common attitudes about same-sex marriage become less accepting over time. Should the Court decide that, since the right to gay marriage has "become obsolete in the evolved society," the express constitutional right should no longer be recognized?

Or should the right to "gay marriage" be interpreted, in accordance with its original understanding at the time of ratification (i.e. as of 2011), to protect the right of same-sex marriage?

Please feel free to write comments on this post, because I would really like to see your thoughts.

Tomorrow's Class

Thursday January 12, 2012--we will have a joint class (both sections together) that will meet in the Auditorium at 1:00 PM.

We will be watching a documentary on the "Poletown" takings case in which an entire neighborhood was taken and transferred to General Motors for use as a Cadillac factory. The movie may run until a few minutes after 2 PM.

Interesting Property Rights Case Before Supreme Court This Term

Real Estate Blog has the story.

When Zoning Board Closes Down Your Church

From Today's WSJ, an issue we will be discussing next semester:

What counts as a church? Chuck and Stephanie Fromm recently found out.
After hosting several periodic Bible studies for up to 50 people in their home in San Juan Capistrano, Calif., the Fromms were fined $300 for violating a city ordinance that prohibits groups of three or more people from gathering without a permit. The couple appealed and city officials agreed last month to reimburse them and re-examine the ordinance, but the case created a stir in religious circles.
"It struck a deep nerve. Bible studies in people's homes have been a long part of American culture and heritage," says Brad Dacus of the Pacific Research Institute, which took on the Fromms' case. "We're concerned that other cities will try to get away with the same thing."
Megachurches often dominate the news, but most religious institutions in America are small. The median church size is 75 regular participants on Sunday mornings, according to the 2009 National Congregations Study, which also found that about 60% of churches have an attendance between seven and 99 people. Just 0.4% of churches have more than 2,000 attendees, falling into the megachurch category.
Even those churches that eventually grow to a few hundred or a few thousand start small. Many churches originate as a Bible study in someone's home before renting or buying more formal location. Saddleback Church began in 1979 as a small Bible study with one other family in Rick Warren's condo. Seattle's Mars Hill Church began in 1996 in the apartment of Mark and Grace Driscoll.
Megachurches have actually spurred more growth in small home gatherings, which include not only Bible studies but groups devoted to topics such as marriage support, parenting and personal finance. Half of megachurches used such small groups in 2000, while 80% use them now, says Scott Thumma of the Hartford Institute for Religion Research. A recent Lifeway Research study of 7,000 Protestant churches found that on average, half of those in their congregations participated in small groups. "Pastors are asking, 'How do you get people from sitting in rows to sitting in circles?'" says Ed Stetzer, president of LifeWay Research.
But modern zoning laws haven't caught up with this trend. What to do, for example, about the parking congestion caused by a regular gathering of several families for a Bible study? "Zoning laws and the ideas that lie behind them are so outdated that it's going to take some time before they fully grasp the changes of the shape of American religion," says Mr. Thumma.
Zoning issues have affected other small groups. In 2006, a synagogue sued and eventually settled with Hollywood, Fla., after the city initially denied its application for a zoning permit to operate in two residential homes. In 2009, San Diego County officials issued a warning (which they later withdrew) to a couple for hosting a weekly Bible study in their home without a permit. Miles Christi, an international Catholic religious order, challenged a 2007 ticket issued from Northville, Mich., for using a home for private daily masses and Bible studies. The order won on a technicality but its subsequent lawsuit to prevent the issuing of future tickets was dismissed by a federal court earlier this year.
Zoning disputes are often tested under the federal Religious Land Use and Institutionalized Persons Act. The 2000 law requires the government to have compelling interests before restricting any religious group. Religious liberty advocates believe smaller religious groups have struggled to get accommodations when it comes to land-use regulations. Says Mr. Stetzer: "The future of religious liberty is going to be in the area of zoning and not in the area of speech discrimination."
The Fromms of California were cited for not having a conditional use permit to meet in residential areas. But the ordinance language explaining who needs a conditional use permit is so broad it could apply to a group of friends who meet to watch football on Sundays. And to gain such a permit, an applicant could need a site planner, a public hearing and an entitlement planner, which could cost up to $150,000, says Dan Dalton, chair of the American Bar Association's Religious Land Use section.
"Church," he notes, "is more than about Sunday mornings and Wednesday nights, and communities have to recognize that, but some have to go through an onerous process."

No Class Wednesday October 5

I'm heading off to St. Louis next week to speak at SLU and Wash U law schools.

Should Property Be Inheritable and Devisable?

Let's finish up our brief discussion of the law of intestate succession by focusing on the question whether the law should permit property to be inherited upon the death of the owner?

Should the government confiscate a decedent's property upon her death? Why or why not?

What about partial confiscation by a death tax? How much of a death tax? 25%? 50%? 90%?

Tea Party's Constitution

I will be giving a Law School Colloquia Presentation next Wednesday Sept. 28th (at Noon in Room 113) on "The Tea Party's Constitution." This is just a sexy title for a proposal, first made by Prof. Randy Barnett of Georgetown Law, to call a constitutional convention for the purpose of proposing constitutional amendments designed to limit the power of the Federal Government and to increase the powers retained by the States and the People.

This presentation is open to everyone, so if you are interested in discussing the possibility of a constitutional convention please come.

No Class Wednesday Sept. 21

We will use our second (of seven) required class cancellations to cancel class next Wednesday Sepr. 21.

I am speaking at Washburn next week and need a day to get back on top of things here.

The Paper Chase

This is not an assignment, just a suggestion for something fun to do this weekend.

Watch the best movie ever made about law school and law students--The Paper Chase--starring Timothy Bottoms and John Houseman (as Prof. Kingsfield). Link. The clothing and hair styles are dated, but law school, like baseball, never changes. Give it a try on Netflix or Hulu or whatever you use to watch movies.

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?