Class Re-scheduled Friday Nov. 6

In lieu of meeting at our regular time and regular place next Friday Nov. 6, we will instead meet in the Auditorium at Noon for the Lane Foundation Lecture, which this year is a Property lecture given by Prof. John Langbein of Yale Law School. Prof. Langbein's topic is an advanced topic on the "Nonprobate Revolution" of family wealth transmission. It should be of great interest to students interested in Property, Wills & Trusts, and the general practice of law. Here is more information:

 Prof. John Langbein

Lane Lecture Friday Nov. 6 Noon Auditorium

The Nonprobate Revolution: Privatizing Family Wealth Transfer in the United States.   Probate, the state-operated system of family wealth transmission, has been marginalized in contemporary American practice by the rise of free-market competitors in the financial services industry.  Today, it is banks, mutual fund companies, brokerage houses, insurance companies, and retirement plan operators who handle most intergenerational wealth transfer.   Professor Langbein will speak about the causes and extent of the nonprobate revolution, and about some worrisome drawbacks that are emerging as this new system of wealth transfer takes hold.

Handouts Available

The Handouts that have been assigned are available in the Handout Racks near the South Faculty suite on the second floor of the library.

Historic Baseballs and their First Possessors in the News

So David Ortiz just hit his 500th home run, not a record but a great milestone. The fan who caught the ball was recently praised in a Tweet by Gordon Edes, a baseball writer who covers the Red Sox:

"The fan who returned David Ortiz's 500th HR ball impressed Sox and Ortiz.by making no extravagant demands. A few photos, souvenirs, is all."

By the way, here is a humorous revision of Take Me Out To The Ball Game"

  Dick Flavin’s “Red Sox Rhymes” gives us one gem after another. Here’s one:

“Take me out to the ballgame.
First, let’s stop at the bank.
I’ll need a mortgage so I can pay.
Parking the car is another outlay.
And you can pay big bucks for a hot dog,
The cost of beer is insane.
For it’s Oh my! Prices high
At the old ballgame.”

No Property Class Today--Friday Sept. 4

Remember, because we had a double class on Wednesday for the documentary, we are not meeting today.

Enjoy your longer weekend!

Doubleheader Next Wednesday Sept. 2

                                               Hannah Duncan Arizona Pom Line 8-29-14 ESPN


We will have a double class next Wednesday Sept. 2. Class will begin at 12:10 PM and run until 2 PM in Room 113 (our normal room). I am also paying back the 10 minutes I owe you.


We will watch a documentary on Popov v. Hayashi (casebook p. 113) and then discuss the actual decision in the case.

This is the Barry Bonds 73rd home run ball case. The documentary is fantastic. Very funny and very informative about the law and litigation. 

Update: We will account for this double class by cancelling class this Friday Sept. 4.

Next Wednesday--Doubleheader

Next Wednesday we will be having a double class--From 12:10 PM until 2 PM. In Room 113.

Philosophy and Forced Transfers of Property

" Is it moral for the government to force others to give to the cause of your choice?"

I recommend this interesting video from the Acton Institute and Rob Gressis, a professor of philosophy.

Link

Q & A Session With Duncan and Rembrandt

                                                    Me and Rembrandt at the Louvre



Wednesday April 29 at 1 PM in Room 113.

Y'all bring the questions, oui will try to bring a few answers.

PS My wife thinks I need a haircut, but I am going for the Grizzly Duncan look.

Restrictive Covenants and Liberty

From PropertyProf blog:

 

Boston Archdiocese's Use of Restrictive Covenants

Over at the Faculty Lounge, Al Brophy has a great round-up of the Boston Archdiocese's aggressive use of restrictive covenants when it sells property:

One property in Holyoke has restrictions against an abortion clinic, exotic dance club, or satanic materials. One property in Lowell has restrictions against "prurient activity," including nude, semi-nude or sexually suggestive activity or entertainment, production, publication, display, or promotion of pornography. A property in Cambridge has restrictions for housing use only and a property is Lawrence is restricted against use by a charter school.

[...] There are a ton of interesting things to talk about here. I suspect some of these restrictions are enforceable -- like the ones against the exotic dance club. [...] What interests me in particular are the restrictions on abortion. Couple of things to think about here. The Restatement Third of Servitudes § 3.1 -- if applied in Massachusetts -- would be a problem for the enforcement. Recall that § 3.1 construes a servitude that unreasonably burdens a fundamental constitutional right as a violation of public policy.

Preview of Coming Attractions

We will be studying the law of restrictive covenants soon. Here is an interesting post from the PropertyProf blog:

Restrictive Covenants in Custom Home Subdivisions

The Indianapolis Star has an interesting article recently describing a situation that is doubtlessly concurring in many upscale communities across the country.  There are several subdivisions in Hamilton County, just north of Indianapolis, that were marketed as available to custom home builders only.  The large lot sizes, large home sizes, and required architectural features were supported by both restrictive covenants and zoning restrictions.  But, as you may have heard, the economy crashed.  Many smaller custom home builders in Indianapolis have gone out of business.  The original developers of the subdivisions either lost unbuilt lots to the bank or have been forced to sell them in a bulk sale to production home builders.
So the people who built their $1 million plus custom dream homes (which is a VERY VERY nice house in Indianapolis) in these subdivisions are now battling to keep out the $350,000 to $500,000 production homes.
Lawsuits have already been filed, so I suspect that we will be seeing more appellate court decisions across the country soon interpreting restrictive covenants that the homeowners understood as limiting the subdivisions to custom-built homes.
Tanya Marsh

This is much more restrictive than the exclusionary zoning decisions we read--these covenants are like posting a sign on a neighborhood that says "Only millionaires may live here!"

Great Speaker Monday March 9 at Noon

Don't miss Prof. Jim Duane's entertaining and informative talk on why even innocent persons should not speak to the police when they are suspected of a crime.

I have seen Jim speak many times, and he is one of the best speakers anywhere on legal issues.

Monday March 9 at Noon! Free lunch!

Wednesday Q & A

On Wednesday, we will finish up this little unit on exclusionary zoning and then I will save some time at the end of class for some Q & A.

This is a great time to ask questions about Takings, RLUIPA, and Equal Protection and exclusionary zoning.

Think about what you are confused by or struggling with and ask away!

Supreme Court Oral Argument in Holt v. Hobbs

I would like you to listen to the Supreme Court oral argument in Holt v. Hobbs (the RLUIPA prison beard case). We will do this as a way of making up next Wednesday's class, when I am speaking at UMKC law.

here is a link to the oral argument.

The case is not about religious land use, but the Court is interpreting the very same statutory standards that apply when land use laws are challenged under RLUIPA.

You will get more out of the argument if you read the Court's opinion first.

"Judge says Phoenix church cannot feed homeless "

Link. Here is the report:

It's one of the many good deeds for which churches are known, but now a judge has ruled that feeding the homeless is against the law. The ruling is against CrossRoads United Methodist Church in north-central Phoenix and it says that the church is operating as a charity dining hall, which breaks a city zoning ordinance.
The area where the church is located -- Central and Northern avenues -- is zoned as primarily residential. Charity dining halls are considered businesses.
The controversy swirling around the church's weekly pancake worship service started last spring when neighbors complained about an increase in the number of homeless people in the neighborhood, panhandling, burglary, public intoxication and vandalism, among other things.
"We can minister to the poor ... that’s a given," wrote Rev. Dottie Escobedo-Frank on the CrossRoads Web site. "We can hold a worship service for them out on the front lawn. We just can’t feed them. We can’t fill their bellies with warm food. We might as well just go to the street corners and start handing out money, in hopes they will make their way to some food, because you are not allowed to do it at church!"
The decision affects all churches that are located in Phoenix residential areas.
CrossRoads, which maintains that it is operating as a church and not a charity dining hall, plans to appeal the decision. They have until Nov. 24 to do that.

Property and Religious Liberty in the Regulatory/Welfare State

"[T]he greatest threats to religious liberty" in modern America "stem from the insufficient protection of individual liberty in economic affairs." Prof. Richard Epstein

Think about this. Most of the religious liberty cases arising today are cases, like Hobby Lobby, involving extensive regulation of property and economic enterprises.

We will spend 2 or 3 classes studying federal civil rights laws, such as RFRA and RLUIPA, and their application to religious liberty claims in cases involving primarily land use but also economic enterprise.

Thursday's Class (Jan 29)--Starts Early at 12:30

We are going to listen to the SCOTUS oral argument in the Lucas case on Thursday of this week. So we need to start class a little early--12:30 PM.

It is a very interesting argument; and I hope you will learn a lot about oral advocacy.

To make up for our two early start times, I will cancel one of our Friday classes. Maybe the Friday before Spring Break? What are your thoughts on which Friday class to cancel to provide Just Compensation to you for our two early start times?

Civil Asset Forfeitures

Here is a link to an article on Civil Asset Forfeitures, an issue that came up in class earlier this wee.

Here is a money quote:

On a bright, clear morning in April 2013, two professional poker players from California were heading west on Interstate 80 in rural Iowa when they were stopped by two Iowa State Troopers.

Before that stop was over, the officers had seized $100,000, which the men said was money to play poker. The troopers also called ahead to California authorities, who raided the men's homes and ultimately indicted one of them, John Newmerzhycky, on a charge of illegal possession of drug paraphernalia.

If this sounds unusual and way out of the ordinary, it isn't. The seizure is just one of thousands of highway stops that state and local authorities call "interdictions:" Roadside stops aimed at catching drug dealers or even terrorists, but which can also result in cash seizures alone with no criminal charges attached.

It's called Civil Asset Forfeiture, and it was started in the early 1980s by the Justice Department. It has since migrated to thousands of state and local jurisdictions nationwide. The program, when it originated, was meant to target and take money authorities believed was connected to crimes.

A legal advocacy group based in Washington called the Institute for Justice has been battling Civil Asset Forfeiture for years.

"It violates due process for Americans," said Larry Salzman, an attorney for the group. "It's wrong. It's a simple premise that the government should not be taking money from people who have done nothing wrong. It shouldn't be taking money from people who have not been charged, let alone convicted, of any crime."

IJ is doing great work on this and many other economic liberties issues.

Tomorrow's Class Starts at 12:30 PM

We will be watching a film.

Mid-Year Exercise Results

Here is the breakdown for the Midyear Exercise:

1 Student scored 100 points (bravo!)

6 Students scored 96 points

5 Students scored 92 points

 

3 Students scored 88 points

4 Students scored 84 points

3 Students scored 80 points

2 Students scored 76 points

3 Students scored 72 points

2 Students scored 68 points

3 Students scored 64 points

 

1 Students scored 56 points

2 Students scored 52 Points
 

2 Student scored 48 Points

1 Student scored 28 points
 

The test median was 80 points.  Pay no attention to the arbitrary "quartiles."  They are meaningless.

Litigation About a Taking of Raisins

If this isn’t a taking, what is?

Q & A Session Wednesday December 3

I will be there tommorrow--same time same place--to try to respond to your many questions about Property law.

National Debt hits $18 Trillion!!!

That is $18 Trillion with a big, fat capital T!!!

How much of this debt is your share? Just divide $18 trillion by 300 million Americans and you will get your share of this debt. Just add it to your student loan debt and get ready to pay, pay, pay!

Canned Immunity--New Rule

I strongly support the concept of canned immunity--feeding the hungry is a very good thing to do--but I apply a slightly different version of the rules in my classes.

True charity is freely given from a thankful heart, not from a desire to escape justice. Moreover, to buy your way out of being called on with a can of food is a bit like the game of beggar-your-neighbor--you escape the guillotine, but your neighbor without a can must takes your place at the chopping block.

So NEW RULE.

I will call on whomever I call on, and everyone else receives mercy that day. All of you who receive mercy (all of you who are not called on) should give a can or multiple cans to the program out of thankfulness for being spared the guillotine.

Everyone wins. The Food Bank gets more food (because everyone who is spared gives out of thankfulness); the class moves along at a smooth pace; and no one is required to take her neighbor's place at the guillotine simply because her neighbor has paid for immunity.

Please do give to the program.

Marriage and Domestic Partnership Law In Nebraska

Since the casebook mentions the recognition of "domestic partnerships" and "civil unions" in a few states, I thought you might be interested in the Nebraska law. The Nebraska Constitution (art. I, sec. 29) provides:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416.

Notice that this law does not forbid same-sex couples from entering into committed relationships or from having their relationships blessed as "marriages" by their religious authorities. It merely provides that the State of Nebraska will not give legal recognition or validity to same-sex partnerships or unions, such as in the form of tax benefits, inheritance rights, or other legal incidents of marriage.

But notice that wills, insurance policies, contracts, and property arrangements (such as joint tenancies) can be employed to provide same-sex couples with much of the economic security of marriage.

When you represent gay clients, you need to be extra attentive to make sure that they have wills, insurance policies, powers of attorney, and similar legal protections for their partners.

Property and the "Knee Defender"

Gotham Times reports (link):

I have a set of Knee Defenders, the devices that hook onto the tray table of an airliner seat back and prevent the seat from reclining.

When I mention this to people, they express shock, as if it is something beyond the moral pale, like taking candy from children or not tipping above 15 percent.

It’s an even a worse offense in the eyes of my colleague Josh Barro, who argued this week for the primacy of the economic rights of the recliner. He calls using a Knee Defender theft.

The real problem is undefined property rights over the same four or five inches of space. People don’t agree on who has the rights. The airlines leave it foggy.

“As for what customer has the ‘right,’ I think what we can say is the in-flight experience is much better when passengers are courteous to each other and flight crews,” said Paul Flaningan, a spokesman for American Airlines.

The person who wants it most will end up owning the rights, but the person with the recliner button holds an advantage. The Knee Defender reallocates the rights. Now I can claim the four inches in front of my face.

The problem seems akin to people walking on a 48-inch city sidewalk with those ridiculous 54-inch-wide golf umbrellas. Or is a better analogy the range wars of the American West in which cattlemen try to stop the farmers until Shane fights back with his ivory-handled Colt revolver?

Using a Knee Defender may seem uncivil, but it is not: It just evens the playing field. Instead of having the guy in front of you slam the seat back and wait for $50, as Mr. Barro suggests, with a defender you can now negotiate.

“It gives you the chance to be human beings,” says Ira Goldman, the inventor of the Knee Defender, who has seen traffic to his online store rise 500 times above average since an altercation last weekend on a United flight involving his device. “Do you want the conversation to start before the laptop screen is cracked or after it is cracked?” he asks. “Like Max Bialystok and Leo Bloom in “The Producers,’ the airlines sell 200 percent of that space.”

The airlines have also failed to establish property rights for armrests, but there is a generally understood code for that: The person in the aisle has room to stretch, the person in the window seat has the fuselage to lean against, and the person in the middle has nothing, so he or she gets the armrests.

Most reasonable people agree, although I once had a seat mate on the aisle who insisted the armrest was his. After a little jockeying for ownership, he began pulling hairs from his nose and lining them up on the armrest. “You win,” I said.

But I have a moral code for users of the Knee Defender. If those in front of you never notice or care, then no harm done. When they do notice, what usually happens is that they complain to a flight attendant that the seat is broken. The flight attendant will know immediately what’s up. In that case you remove them at once and, if necessary, apologize. (No major airline condones their use because they can cause a ruckus in the cabin, as happened last Sunday when a pilot had to divert a plane to eject two unruly passengers.)

Mr. Goldman, a former Senate aide who got the idea during a long flight, says people don’t want to use his devices but have no other solution. He offers a card on his website that he suggests you give to the person in front of you. It says, in part:

If you would like to recline your seat at some point during the flight, please let me know and I will try to adjust myself and my Knee Defender so that it can be done safely.

I realize that this may be an inconvenience. If so, I hope you will complain to the airline. Maybe working together we can convince the airlines to provide enough space between rows so that people can recline their seats without banging into other passengers.

Thank you for your understanding.

That card, with its passive-aggressive tone, is just asking for trouble. And it cannot change the reality: The way the system is now designed, the recliner has every incentive to push the button and recline. The Barro pay-me solution gives the recliner even greater incentive to always do so.

Airlines could solve the problem by declaring themselves Reclinists or Knee Savers, and passengers could choose which airline to fly based on that (or at least would know what to expect on board).

Until then, the Knee Defender reallocates the property rights. Using it makes you no more or less of a jerk than the person who always reclines.

Excuse me now while I go online to order the Kid Bagger for that toddler who will be kicking the back of my seat with her steel-toed Mary Janes.

Q & A Session: Saturday May 3 at 1 PM Room 113

              ?  ?  ?  ? ?  ?  ?  ?  ?  ?  ? ?


I know many of you will have questions as the exam approaches.

So I will be in Room 113 tomorrow at 1 PM for a Q & A.

Spread the word to your classmates when you see this post!

Rand Paul on Liberty in an Age of Security

Rand Paul on liberty and airport security:

Harvard Law School professor Noah Feldman has asked, “The next time airport security tells you to put your hands over your head and hold that vulnerable position for seven seconds, ask yourself: Is this the posture of a free man?”

Here is the Bork Quotation I Mentioned in Class

Bork on Temptation of the Judiciary:


The late, great Robert Bork once brilliantly explained how a judge can be tempted to follow his own views of justice rather than to do his duty and follow the law:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Tuesday March 4--Required Attendance at Pound Lecture

We have a very special Property speaker coming to the Law College on Tuesday March 4. Prof. Epstein is the leading authority on Takings and the Takings Clause. I am requiring the Property class to attend his Pound Lecture at the Law College on Tuesday March 4 (this is in lieu of our regular class on Wednesday March 5). Here is the information about the Pound Lecture:

 

 

The Upside Down World of Financial Takings

Speaker: Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law

 

DATE: Tuesday, March 4, 2014
TIME: 12:00 - 1:00pm
College of Law, Auditorium
Approved for 1 CLE credit hour

DESCRIPTION:

Modern takings law tends to concentrate on the distinction between physical takings by occupation and regulations of land use.  Financial claims fit only uneasily into this two part landscape. The lack of a coherent theory of how financial liens and contract claims should be treated has led to some serious confusion in the area.  There are many cases, such as the recent dispute over the private stock holdings in Fannie Mae and Freddie Mac where courts often do not supply enough protection to property interests against confiscation, and other cases, like the pension claims by union workers against the state, where the constitutional protection is too strong.  In this lecture Professor Epstein will develop a unified approach to government takings to explain why today's dominant legal approach has it backwards.

California Couple Finds $10M Buried Treasure in Back Yard

Yikes! Here is the link.

Poletown Movie

Thursday's class will concern a showing of the documentary on the Poletown case.

We will meet from 2:10 until 4:10 PM.

As a result of the double length class on Thursday, there will be no class on Friday.

Mid-Year Test results

Here is the breakdown for the Midyear Exercise:

1 Student scored 100 points (bravo!)

2 Students scored 96 points

4 Students scored 92 points
 

2 Students scored 88 points

4 Students scored 84 points

5 Students scored 80 points

5 Students scored 76 points

3 Students scored 72 points

2 Students scored 68 points

2 Students scored 64 points

3 Students scored 60 points
 

4 Students scored 56 points

4 Students scored 52 Points
 

1 Student scored 48 Points

1 Student scored 40 points

1 Student scored 32 points
 

The test median was 76 points

The average score was 71.92
 
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 pleased with the performance of the class as a whole. But there is always room for improvement

I hope you have a great Spring Semester 2014!

"Texas Forever, Six"

If you have not seen the TV series, Friday Night Lights, consider watching it over the break.

I just finished the last episode (for the 3rd time--I'm a loyal guy) and it is one of the best TV series of all time.

I just love the Coach, and Matt Saracen, and, of course, my younger brother, Tim Riggins.

It is available for free on Amazon Prime, and maybe on Netflix as well.

Have a great break and I will see y'all come mid-January.

Coach Duncan

He Knows If You've Been Sleeping

Have a great Christmas or Holiday Break.

And remember, drink lots of hot chocolate, wear onesies, and talk about the individual mandate with family and friends.

Exam Info

As I have said several times in class, pay careful attention to the instructions to the exam.

One of these instructions informs you that "unless otherwise indicated" in a particular question, you should answer the questions "in accordance with traditional common law rules" and then gives you a list of common law rules to consider to be in force.

Read that direction carefully. And then read it again.

You should also read each question carefully, because sometimes the question may "otherwise indicate."

So, if a question tells you to decide the case under modern property law or under contemporary Nebraska property law, you should do so. These will usually be areas of the law in which we have specifically discussed how old common law rules have been abolished or altered by modern property law.

So basically, read the instructions carefully and the questions carefully so you will understand what the questions are asking you to do.

My Most Recent Article on the Establishment Clause

This is not an assignment. Nor is it about Property.

This is just something you might find interesting.

I have recently uploaded on SSRN my most recent article, entitled "Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto."  I mentioned some of these ideas at a Federalist Society event recently, and some of you have asked me about it.

This is an article critiquing the Supreme Court's jurisprudence concerning passive religious displays in the public square, and the true source of the Court's "Wall of Separation Between Church and State." Hint: It is not Jefferson, but rather an organization that Justice Hugo Black once belonged to!

You can download a free copy here: Duncan's Article on Just Another Brick in the Wall.

Happy Thanksgiving

                                               Katie and Easy December 2011


Have a great Thanksgiving vaca. And try to spend some time with family and loved ones.

Q & A Session: Friday Nov. 22

We will try to finish co-tenancies today.

Tomorrow (Friday) class will be devoted to a Q & A session. No new assignment for Friday.

Tonight, review your notes and come tomorrow with your questions.

Landlord-Tenant Law Speaker

 I thought I would forward this message and encourage you to attend.

The Nebraska Real Estate Law Society will be hosting local real estate attorney Jan Beran Tuesday, November 19th from 12:10 - 1:00 in room 111.

Jan will be speaking about landlord-tenant law and his general practice as a real estate attorney.  Anyone interested in keeping their rent deposit is encouraged to attend.  If you have already given up hope on your deposit, this is also a great opportunity to learn about tenant rights, evictions, rental agreements and other landlord-tenant issues.  

Pizza will be provided, so please RSVP by Monday at noon.

Thanks, 

--

Ryan Dorcey

J.D. Candidate 2015
University of Nebraska College of Law
rdorcey@unomaha.edu
(402)-366-9316

Weekend Reflection--Nebraska and Property

On my recent travels, I decided to re-read one of my favorite books about Nebraska and life--Local Wonders by Nebraska's Poet Laureate, Ted Kooser. He tells a story about Branched Oak Lake and how government had to take some family farms that were in the path of the waters.

[A]nd the government condemned their land. An old man told me recently that his aunt, a single woman in old age, refused to leave her house. "She just kept going back there," he said. "They'd come and take her away, and pretty soon she'd be back. Finally, they had to go down there and break all the windows out of the house to get her to leave." The signs read Recreation Area. Her house is underneath it somewhere.

Remember this story when we read the Kelo case next semester.

And if you are looking for a great read, Local Wonders may be your ticket.

Class Schedule: More Class Cancellations

                Believe it or not, this is me when I was in law school with my 68 'Stang



After Thursday's double class, we are required to cancel 8 classes.

Here are the first six cancellations:

1. Wednesday September 18
2. Thursday September 19
3. Friday September 20 (my wife is having out-patient surgery)
4. Friday October 4 (I am teaching a CLE at the Nebraska State Bar Meeting)
5. Wednesday October 9 (I will be speaking at Colorado Law School)
6. Wednesday  October 30) (I will be speaking at Rutgers Law School)
7. Wednesday Nov. 6 

O'Reilly and Hannity Hypo

Suppose Grutz, a big fan of Fox news, conveys Blackacre "to Sean Hannity for life, then to the heirs of Bill O'Reilly."

What is the state of the title?

Now suppose Hannity dies and O'Reilly is still alive?

Handouts 2-6

Are available in the handout racks outside the South Faculty Office Suite in the Library.

Hornbook Reading

Fishing Pier at Sandbridge Beach, Virginia, July 2008 (photo by Becca Duncan)

Just a brief word about the assigned reading in the Hornbook. Normally, our class discussion will focus on the cases and problems that we read in the casebook. The purpose of the readings in the Hornbook is to help you understand the concepts and black letter rules that arise in the cases. We will usually not discuss the Hornbook in class, but hopefully what you read in the Hornbook will help you better understand the cases we discuss.

A few years ago I noticed that students were not mastering all of the rules that govern the caselaw. They were often purchasing "study aids" like property "flash cards" and such that are sometimes wrong and usually overly simplistic. Sometimes they would come to me the day before the exam and ask me to go over all the rules with them, an impossible task given that it took us an entire year to cover them the first time. So I decided to assign a good secondary source to help students get a clearer grasp of the rules and the reasons animating the rules, something that is written well and is always there for you to read and re-read. The Stoebuck & Whitman book is the best hornbook out there on Property.

I hope this helps you understand how the assignments are structured--you should always read the casebook assignments before class, because that is what our class discussion will be about. You should read the Hornbook assignments--and you are "responsible" for reading them--but it is not essential that you do this reading before any particular class.

Anderson V. Gouldberg Limerick

From Lawmericks Blog:

 

Anderson v. Gouldberg

Supreme Court of Minnesota, 1892
53 N.W. 636
Property

The plaintiffs had stolen some wood,
And defendants took more than they should.
"The last wrongful getter
Has title no better,"
And the court for the plaintiffs so stood.

As between two thieves, Thief No. 1 and Thief No. 2 (who steals from Thief No. 1), who has the better claim to possession?

Baseball and Movie Day

This Thursday (September 5) our class will begin at 12:10 AM (i.e. fifty minutes early) so we can watch a great documentary about the Barry Bonds' baseball case involving two would-be first possessors.

Popcorn and Milkduds are permitted, but not required.

Seamus Heaney--Irish Poet Dies at Age 74

“The way we are living,/ timorous or bold,/ will have been our life.”    
          Seamus Heaney (source NYT)

Native American Burial Ground Note 5--Page 107

Let's talk about this note for a few minutes at the start of class today.

Hornbook Reading

As you study for the exam and struggle with some of the rules and doctrine, don't forget to re-read the relevant sections of the Hornbook. It does a really good job of laying out and explaining the many rules we studied. If you have gaps or unclear spots in your notes and outlines, the Hornbook is the first place to go for clarification.

Final Exam Info

The Final Exam is a three hour (closed book) exam that counts for 300 points (the mid-year for Fall semester counted for 100 points). The exam is cumulative and will cover the materials covered in both Fall Semester and Spring Semester. Here are some things you need to know:

1. The exam is closed book. Do not bring any printed materials into the test room. Do not bring cell phones or any unauthorized electronic equipment into the test room.

2. The exam contains both essay questions and multiple choice questions.

3. All answers to essay questions must be typed on a computer using Extegrity Exam 4 software. Check with Vickie in the Dean's Office with any questions about procedures.

4. If you need a lab computer, make sure Vickie knows.

5. Be sure to observe the maximum word limits for each question. If you go beyond the word limit, it will adversely affect your grade for that question. If I say "answer the question in approximately 250 words or less" that means what it says. I use "approximately" to be flexible, so you don't have to stop in the middle of a sentence. 275 words is okay; 300 words is not okay. Please don't abuse the flexibility that I give you by using the word "approximately."

Use Restrictions a la France

I thought you might enjoy a little comparative look at some of the land use issues we have been discussing. From the PropertyProf blog:

NIMBY Au Francais

Bernard Arnault, the man who runs the Louis Vuitton fashion house, finds himself in a bit of a donnybrook with a local nighborhood association over the construction of a museum to house his art collection.  Arnault has begun construction of his art palace in the middle of the Bois de Boulogne Park, upon land donated by the City of Paris. According to the NY Times, local neighbors object to this intrusion and make a simple argument: "the park is intended for the public, the museum is next to a children’s playground, and the building itself violates the rules governing the park by blocking a paved roadway that should be open to the public."  This reasoning carried the day in a recent court battle.  A judge annulled the building permit with construction on the museum half-finished.
Arnault and his powerful friends frame the issue differently.  They argue that the neighbors “show a blind and pernicious individualism that goes against the general interest. They oppose any change for the sake of it. In their tight little suits, they want to put Paris in formaldehyde. It’s quite pathetic.”
The Times concludes that "this being France, and Mr. Arnault being a sort of Ozymandias, he is likely to get his pyramid anyway" - the French Parliament is in the process of overriding the court's decision and granting the museum a special waiver.

Sex-Offender Residency Laws and Covenants

Over at the PropertyProf blog, there is a post about an interesting issue concerning covenants:

Asmara Tekle-Johnson (Thurgood Marshall) has posted two articles about sex offenders and land use controlls on SSRN:
The first is In the Zone: Sex Offenders and the Ten-Percent Solutions; here's the abstract:

At first glance, sex-offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than ten percent of the very real problem of child sex abuse, as family members and acquaintances of children commit more than ninety percent of this abuse. On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and social margins, condemning many low-risk offenders to a lifetime of isolation while breeding optimal conditions for high-risk offenders to reoffend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a false sense of security.

This Article challenges prevailing judicial orthodoxy that many sex-offender residency restrictions are constitutional under the Ex Post Facto Clause. The Article applies the analytical framework of Smith v. Doe, the U.S. Supreme Court's most recent case involving sex-offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The Article proposes an innovative "positive" zoning scheme, the Sex-Offender Containment Zone, which zones high-risk convicted sex offenders back into the city in a manner that is effective, humane, and constitutional.

The second is Safe: Restrictive Covenants and the Next Wave of Sex Offender Legislation; here's the abstract:

This Article examines the emerging phenomenon and implications of sex offender covenants, the latest wave of sex offender legislation, under common law property rules such as touch and concern and the doctrine prohibiting restraints against alienation. The paper theorizes that courts use common law property rules to strike down personal "who" covenants, such as those based on race, age, disability and often permanently debilitating sex offender status, that run afoul of public policy norms-most particularly, the wide availability of safe and decent housing for all.
The Article analogizes blanket sex offender covenants to their racially restrictive progenitors, arguing that both types of covenants are based on unsubstantiated fears that one population would sexually terrorize another. The modern-day fear is that convicted sex offenders will sexually prey upon children whereas the underlying fear in the era of racial segregation was that black men, this country's original sexual predators, would sexually prey upon infantilized white women. Subsequently, this Article looks to the sordid history of racial segregation for lessons and solutions to the modern-day problem of convicted sex offenders. Finally, it asks whether the burgeoning phenomenon of sex offender covenants foretells the rise of similar private restraints based on sexual orientation.

By the way, here is another post on this issue, one which contains a link to an actual covenant restricting sex offenders from occupancy in a residential neighborhood.

Next Week

For next class we will finish up Adverse Possession and start covenants.

Please read:  Casebook p. 617-628

Don't forget to read the relevant Hornbook sections, because they are very helpful.

Hard Cases Make Bad Law--The Temptation of the Judiciary

Here is the quote from Judge Bork that I mentioned in class last week concerning the struggle between the rule of law and rule by unelected men or women:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Weekend Reading: The Automobile and Property as Liberty

                                    Yours Truly Circa 1971With My 1968 Mustang




Great article by Michael Medved in the Wall Street Journal about how the automobile has become an instrument of individual liberty. Here is a link.

And here is a prime excerpt:

Al Gore and his acolytes equate the internal-combustion engine with climate change, overconsumption and environmental devastation, and the mayors of trendy towns like Seattle and Portland have declared war on the automobile as the enemy of civilized values. For enlightened souls of the "Millennial Generation," cars have become surprisingly uncool—riding light rail, bicycles or even buses is a healthier, more politically correct alternative.

It should come as little surprise then that conservatives—happily tuned to talk radio while they drive—remain the great defenders of the automobile. Cars appeal powerfully to one of the most important conservative values: individual freedom. Straphangers in public conveyances can only travel in groups, moving along with hordes of strangers according to schedules imposed by others. Bicyclists, free as they may be, are clearly limited by distance and time constraints. Once you get into a car, however, you go wherever you want, whenever you want, subject only to your ability to put gas in the tank.

Those who relish that sense of freedom, and make the requisite sacrifices to enjoy it, will quite naturally ride to and from work in splendid isolation. Sure, people on the right of a certain age may prove more likely to expend emotion in saying farewell to one specific car, but we will never go along with the idea of saying goodbye to the automobile.

Pound Lecture

UPDATE

Contact Dean Pierce if you are interested in having lunch with Prof. Levinson after he gives his Pound Lecture. Sandy is one of the most interesting people I have ever met. He has a new idea every minute! I think you will enjoy this opportunity.



Greetings from sunny but chilly Jascksonville Beach.

I just wanted to emphasize the announcement that went out today from the Dean's Office:

As you plan your week, please plan to join us on Thursday at noon in Hamann Auditorium for the Pound Lecture, "Is Government by ‘Reflection and Choice’ a One-Time Experience?" by Professor Sanford Levinson. In his lecture, Levinson will discuss Alexander Hamilton's emphasis in Federalist #1 on the opportunity of Americans to engage in unfettered “reflection and choice” about the system of government they wish to live under.  An obvious question is what meaning his argument has for us in 2013, as distinguished from the audience to which he was writing in “real time.”  Do we today wish to engage in genuine “reflection and choice” about our governmental institutions?  In answering this question, it is interesting to compare the United States and American state constitutions (very much including Nebraska’s) with regard to the opportunity and actuality of such “reflection and choice.”

We are very fortunate to have someone of Professor Levinson's stature join us. Please help us make him feel welcome by attending his lecture this Thursday.

Sandy is a friend of mine and a very interesting and provocative constitutional law scholar. You owe it to yourselves to attend this Lecture.

Just FYI--Recent Prisoner RLUIPA Case

This is just for those who may be interested in prisoner rights issues. Here is a recent post from the ReligionClause blog on a recent decision.

Friday, February 22, 2013

Split 5th Circuit Denies En Banc Review In Prisoner Kosher Food Case

By a vote of 8-7, the U.S. 5th Circuit Court of Appeals in Moussazadeh v.Texas Department of Criminal Justice, (5th Cir., Feb. 20, 2013), denied en banc review to the Texas prison system which had refused to fully accommodate a Jewish prisoner's request for kosher food.  A 3-judge panel, in a 2-1 decision, held that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. The panel remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means. (See prior posting.) Judge Jolly wrote a dissent to the denial of en banc review, warning that "we should not be blind to the misuse of RLUIPA in the prison setting." He explained:

this appeal involves the Texas Department of Criminal Justice’s (“TDCJ”) efforts to accommodate the religious practice of keeping kosher of roughly 900 Jewish prisoners among an inmate population greater than 140,000; TDCJ’s establishment of a “Jewish prison unit” with a kosher kitchen; a single Jewish prisoner, Moussazadeh, whose demands were thus accommodated, even though they were not required to be by any court decision; major disciplinary infractions – committed by Moussazadeh – that required his transfer to a more secure prison that did not have a kosher kitchen but nonetheless offered vegetarian and non-pork options and where pre-packaged kosher food in the more secure prison’s commissary was available for purchase; and, finally, the demands of Moussazadeh to be served kosher food, necessarily prepared by a kosher kitchen at the secured facility, even when he later had the option of being transferred back to the Jewish prison....

Assigned Reading For Thursday's Class

Here is an article about practicing under RLUIPA. Please go to the link and read this short article:



Link

"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.