NYT on Best Places for Gen Z to Afford to Buy a House

Right here in Lincoln NE is one of the easiest places for Gen Z to afford to buy a house! NYT:

Assignments Week of January 29 to February 1

 Casebook p. 267-297 (probably 2 classes)

 Casebook P. 300-302; Blog Posts on Fee Tail and Fee Simple Conditional

 Casebook p. 307-323

Assignments Week of January 22 to 25

Remember--no class Wednesday January 17 and Thursday January 18.   

 We will finish up Finders from current assignment. Then:

Transfer of Ownership by Gift

Casebook p. 213-235 (gift) [probably take 2 classes to cover this assignment]

      Estates and Future Interests

Casebook p. 237-248 (for background only); p. 251-267

Casebook p. 267-281

Just a Heads Up: Important Economic Liberty Case at SCOTUS Tomorrow

 Loper Bright Enterprises v. Raimondo

 

Here is Oyez's summary of the case:

Facts of the case

A group of commercial fishermen who regularly participate in the Atlantic herring fishery sued the National Marine Fisheries Service after the Service promulgated a rule that required industry to fund at-sea monitoring programs at an estimated cost of $710 per day. The fisherman argued that the Magnuson-Stevens Fishery Conservation and Management Act of 1976 did not authorize the Service to create industry-funded monitoring requirements and that the Service failed to follow proper rulemaking procedure.

The district court granted summary judgment for the government based on its reasonable interpretation of its authority and its adoption of the rule through the required notice-and-comment procedure. The U.S. Court of Appeals for the D.C. Circuit affirmed.

Question

1. Does the Magnuson-Stevens Act authorize the National Marine Fisheries Service to promulgate a rule that would require industry to pay for at-sea monitoring programs?

2. Should the Court overrule Chevron v. Natural Resources Defense Council or at least clarify whether statutory silence on controversial powers creates an ambiguity requiring deference to the agency?

UNL Closed Today

The University is closed today. We will use one of our 10 pre-made-up days to cover it.

Relax, stay warm, stay safe, and stay off the roads!

 

Schedule Changes: Week Two (January 15 to 18)

 The week of January 15 to 18 will have a number of schedule changes.

Monday January 15--no class MLK day

Tuesday January 16--Regular Class as scheduled

Wednesday and Thursday January 17 and 18: No class (I am speaking on free speech at Texas Tech Law)

As I mention in the syllabus, we have 10 classes we must cancel based upon our 75-minute regular classes. We will use 3 of those 10 to account for week two.

Note also

It looks like there is a possibility that we will have a snow day on Monday January 8. If so, we will use another of our 10 days to account for it. Check the blog Monday morning for more info on possible snow day.

Depending on snow, that leaves us with 6 or 7 classes to cancel. More about that later.

Merry Christmas

Summer Reading (and a Summer Film)

 Just in case any of you stop by to visit the blog this summer, I wanted to share a book recommendation.

It is an oldie, but a goodie. Indeed it has never been more relevant to the times we are living in. I refer, of course to George Orwell's 1984, a prophetic novel about life in a country that very much resembles America in 2023. I am re-reading it as I write this post. It is bone-chilling in its prophetic description of what life in America is becoming here in 2023. Here is a link to Amazon

And here is a brief excerpt about "doublethink:"

Doublethink: “to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that the Party was the guardian of democracy, to forget whenever it was necessary to forget….” 

 Sound familiar? Lol!

My film recommendation is also a classic that is more relevant today than ever. It is A Man For All Seasons, a drama about Sir Thomas More, religious liberty, and freedom from compelled speech about marriage.  It won 6 Oscars including for Best Picture. Here is a link

Exam Metrics

 Some of you have been asking, so here goes:

The exam is 3 hours. Closed book. 65 multiple choice questions worth 5 points each (for a total of 325 points). Your score will be based on the number of correct answers; therefore, it is to your advantage to answer all questions.

Exam Q & A Session

                              

                                             My Favorite Twins, Delaney and Duncan

 

Good news!I got a room on Wednesday May 10 for a pre-exam Q & A session. 

I will show up on Wednesday May 10 in Room 113 (our normal room) at 1:30 (our normal time). It is optional, but if you have questions I will be there to try to answer them.

In the meantime, take advantage of the blog as the ultimate source of answers to your questions. You have the key to the kingdom right there on the blog; don't hesitate to use it.

By the way, although I am 100% over zoom classes and with anything else that reminds me of our societal covid madness, that does not mean that the review session is your only chance to ask questions. I am available by email or telephone call. Drew is also available.

So, if you can't make the review session, don't hesitate to email, text, or call with your questions.

Spring 2023: Assignments for May 1-3

 Casebook p. 617-640

Casebook p. 91-98; Re-read Moore case (casebook p. 894-896)

I want to try to get through this in two days, and leave Wednesday for a Q & A session before the exam.

We will not spend a lot of time on the cases. (especially not on the unusual facts of Gallagher v. Bell). We will use the cases to discuss the elements of covenants running with the land and equitable servitudes. The big policy question is to think about how covenants are like steroids to exclusionary zoning. They can be much--much-- more exclusionary than a single-family zoning law.

Evaluation Day

 The Administration asks us to set aside 15 minutes of class time for students to fill out course evaluations. 

So, today will be our day. I will show up for class at 1:45 PM instead of 1:30. See you then.

Assignments for Week of April 24-26

Casebook p. 1156-1165; 1174-1188 [note p.1165-1174 is not assigned]

    Adverse Possession
 

Casebook p.168-191

 
  

Dave Chappell on Cancel Culture and Freedom of Expression

 "The more you say I can't say something, the more urgent it is for me to say it....It has everything to do with my right, my freedom of artistic expression."

 

Something to think about  in an era of ubiquitous censorship.

Assignments for Week of April 17-19

 April 17 --  No Class

April 18: Casebook p. 1129-1149

April 19:  Casebook p. 1149-1165

Nebraska L/T Statutes

 76-1419

76-1439

76-1425

76-1415

76-1416

76-1421

76-1432

Schedule Information for April 2023

                                          

                                             Spring has arrived on Blackacre, April 9, 2023

 

Remember, we have already made-up 4 classes. And we will be canceling 3 of the 4 in April. Here is the schedule:

Monday April 3--Regular schedule--Drew Bydalek will lead a Takings/Equal Protection Review

Tuesday April 4--No class (I am speaking at B.C. Law on school choice)

Wednesday April 5--No class (I am speaking at Suffolk Law on school choice)

Monday April 17--No class (I am speaking to a lawyers group in Fort Worth Texas on school choice)

What Is Free Exercise? A Great Judicial Definition!

What kind of religious exercise is protected by the First Amendment's protection of the free exercise of religion? Behavior "mandated" by one's faith? Or behavior merely "motivated" by one's faith? Is there a difference between these concepts?

The late, great Ninth Circuit Judge John Noonan, a former law prof and prolific scholar, perhaps has given us the best definition of what is protected by the Free Exercise Clause. In Peterson v. Minidoka County School Dist, 118 F. 3d 1351, 1356-1377, he called the free exercise of religion "the robust putting into practice of a person's religious beliefs," and went on to discuss the issue of mandated vs. motivated religious conduct:

"What is mandated by religion, however, is not to be equated with what is minimally required of adherents of a religion. What is mandated is what the individual human being perceives to be the requirement of the transhuman Spirit to whom he or she gives allegiance. To adapt a Holmesian phrase, what is mandated is a 'can't help.' The person who responds to the Spirit 'can't help' believing that the response is required. Francis of Assisi was exercising his religion when he gave his costly clothes to the poor; if a government had tried to prevent the gesture it would have violated his free exercise although he acted from no binding precept. What the Constitution protects is an act 'rooted in religious belief.'"

Now take a look at the definition of "religious exercise" in RLUIPA sect. 2000cc-5(7):

"(7) RELIGIOUS EXERCISE-
(A) IN GENERAL- The term `religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
(B) RULE- The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose."

Zoning

By the way, RLUIPA gives us a chance to at least familiarize ourselves with how the body of law called "zoning" works.

As the name implies, "zoning" refers to the manner in which local governments control the use of land by enacting a regulation that establishes different restrictions in different zones" of a city or town. (Casebook p. 753).  There is a good description of Euclid's zoning ordinance on pages 754-755. As you can see, some zones are single family residential only; others permit duplexes but not apartment buildings; others permit apartment buildings and certain commercial uses; and so on.

This is why you can't build a duplex in a single family residential zone and why you can only operate a commercial establishment in a zone that permits commercial use.

RLUIPA comes into play when a zoning law restricts a religious land use (whether it be a home prayer meeting as in Murphy or a church or religious ministry as in New Life Ministries).

When you read these cases pay attention to how the zoning law restricts land use and how that can cause it to substantially burden or even forbid religious land use.

RLUIPA Web Site and Resources

Here is a link to a great RLUIPA web site, a site that provides pleadings, briefs, cases, and other resources for lawyers litigating RLUIPA claims.

And here is a link to an RLUIPA blog written by a law firm specializing in RLUIPA practice.

Bookmark this for future reference.

And here are some recent resources from the Obama Justice Department:

Today is the 10^th Anniversary of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The Department of Justice today issued a policy statement on the land-use provisions of RLUIPA, with questions and answers, to provide information to individuals, religious assemblies and institutions, and local government officials about the requirements of the law.  This Statement of the Department of Justice on the Land-Use Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA) is available here. 
As we circulated to you yesterday, the Department also has issued a Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act (press release is linked here; Remarks of Assistant Attorney General Tom Perez are linked here).
The Department of Justice’s Justice Blog today also features an article about RLUIPA entitled Ensuring Religious Freedom for All.
For more information about the Civil Rights Division’s efforts to protect religious liberty and combat religious discrimination, please visit http://www.justice.gov/crt/religiousdiscrimination.

Eric Treene

Special Counsel for Religious Discrimination

202.353.8622

Assignments for Week of April 10-12

 --RLUIPA Materials (I will email them to you in PDF format)

Landlord and Tenant: A Brief Introduction (with emphasis on Nebraska Law)

Nebraska Residential Landlord and Tenant Act (see link to Nebraska Property Laws on side bar)(sections 76-1401 to 76-1449: read through the Act generally, but pay particular attention to sections 76-1416, -1418,-1419,-1421,-1426,-1427,-1437 and -1439). We will spend two class periods on this assignment.

Recent RLUIPA Case

From RLUIPA Defense blog: link

 

Notice how the availability of Attorney's Fees under RLUIPA was a factor in the town's quick decision to settle. 

 

Allenhurst, NJ Sued Under RLUIPA One Day and Settles the Next

By Evan Seeman on February 6, 2018 Posted in Equal Terms, Total Exclusion, Unreasonable Limitation

The Borough of Allenhurst, New Jersey has settled a lawsuit against an Orthodox Jewish group just one day after the group filed suit in federal court alleging violations of RLUIPA’s unreasonable limits and exclusions and equal terms provisions.  As part of the swift settlement, the Borough will permit an addition to a residential home to be used as a synagogue, and will avoid having to pay attorneys’ fees, which are available to prevailing plaintiffs in RLUIPA cases.
The plaintiffs, Ohel Yis’hak Sephardic Synagogue of Allenhurst and Rabbi Moshe Shamah, sought to convert the Rabbi’s existing home into a synagogue.  Rabbi Shamah serves a Sephardic synagogue in Brooklyn, but spends his summers in Allenhurst.  For the past 20 years, he has used his home in Allenhurst to host religious worship for friends and family during the summer months, because there is no synagogue in the Borough.  Many members of the Brooklyn congregation follow the Rabbi to Allenhurst during the summer, and have caused the summertime Sephardic Jewish population in Allenhurst to steadily rise over the years.  To accommodate the growing Jewish population, the plaintiffs sought to build an addition to the Rabbi’s home to operate a “small religious facility where Sephardic Jews can gather to pray and learn.”  One hiccup in the plaintiffs plans – Allenhurst’s zoning code does not permit places of worship – either as of right or as conditional uses – in any of the 7 zoning districts.  Yet, the Borough allows similar secular assembly uses, such as art and cultural instruction, art galleries, fitness centers and restaurants.
The plaintiffs sued the Borough on January 23, 2018 in a two-count complaint alleging violations of RLUIPA (complaint available here).  The next day, the parties agreed to settle the case and the Court entered a Consent Order.  In the Consent Order, the Borough acknowledges that its “outdated zoning code, which the [Borough] intends to immediately address” completely “excludes religious facilities from its jurisdiction and unreasonably limits religious assemblies, institutions and structures within its jurisdiction.”  The Borough also acknowledges that its zoning code “treats religious assemblies and institutions on less than equal terms as nonreligious assemblies and institutions.”  Despite these acknowledgments, the parties agree that the “Consent Order represents a compromise of a disputed claim, and shall not in any way be construed as an admission of wrongdoing or liability on the part of any Party.  Therefore, the parties shall be responsible for their own attorneys’ fees and costs associated with this action.”
The Consent Order in Ohel Yis’hak Sephardic Synagogue of Allenhurst v. The Borough of Allenhurst (D. N.J. 2018) is available here.

Two RLUIPA Hypos

 

 

1. Suppose there is an old Spanish Mission church, Our Lady of Guadalupe, located near San Antonio Texas. And suppose the local landmarks committee decides to declare the church a public landmark. This designation requires the church to get permission from the landmarks committee before altering the external features of the building. 

So, the church’s membership has grown tremendously, and the sanctuary is too small for its present needs. The church has asked the landmarks committee for permission to add an addition to expand the size of its sanctuary. The committee rejected the request, because it would alter the external appearance of the church. The church will not be able to serve its entire congregation if it is not allowed to add the addition to its sanctuary.

Apply RLUIPA

2. Suppose, in Los Angeles, the Salvation Army purchases a building in a commercial area right next door to the Ritz Carlton and the W by Marriott. The Army wishes to convert the building into a homeless shelter to house and feed the less fortunate of the City of Angels. Although hotels, restaurants, commercial businesses, and even strip clubs are allowed to locate in a Commercial Zoning District, religious ministries are permitted only if they receive a special use permit. The Army applies to zoning officials for a special use permit and the application is denied.

Apply RLUIPA.

President Obama's Justice Department Report on RLUIPA

From:  Report on the Tenth Anniversary of the Religious Land Use and
Institutionalized Persons Act
United States Department of Justice
September 22, 2010

"And, as with the Civil Rights Act of 1964, these protections continue to be critical tools in
the federal government’s arsenal to combat religious animosity. The Justice Department
used these tools to prosecute several men who, in 2008, vandalized and burned down the
Islamic Center of Columbia, Tennessee. And in 2010, an individual pled guilty to
vandalizing a synagogue in Mobile, Alabama, by spray-painting neo-Nazi markings on the
building.
These crimes remind us that bigotry and hatred still exist in too many communities in our
nation, and that we must continue to use the laws of the land to combat acts of
discrimination and hate.
But overt discrimination and violence are not the only threats to religious liberty.
Recognizing this, 10 years ago lawmakers once again came together to protect religious
liberty by passing the Religious Land Use and Institutionalized Persons Act (RLUIPA),
which was signed into law on September 22, 2000.1 The law, which passed both houses of
Congress unanimously and was supported by a broad coalition of religiously and
ideologically diverse groups, addresses religious discrimination and government
infringement of religious liberty in two areas: local land-use laws, such as zoning and
landmarking ordinances, and the religious exercise of persons confined to institutions.
Upon signing the Act, President Clinton said, “Religious liberty is a constitutional value of
the highest order, and the Framers of the Constitution included protection for the free
exercise of religion in the very first Amendment. This Act recognizes the importance the
free exercise of religion plays in our democratic society.”2
In the ten years since its passage, RLUIPA has helped secure the ability of thousands of
individuals and institutions to practice their faiths freely and without discrimination. This
has come both through victories in courts as well as through government officials
voluntarily modifying their behavior to comply with the law."

Here is a cite with the full text of RLUIPA.

Ground Zero Mosque

Suppose NYC refused to allow a Mosque to locate on property it owns near ground zero in lower Manhattan, even though many other churches, synagogues,  and other places of worship have been granted zoning waivers and allowed to locate in the area.

Which sections of RLUIPA might apply?

Green Monster Air Space

 

So, I was up on the Green Monster at Fenway Park last night, and a Red Sox official I met told me a story that is about property rights. When the Red Sox added seats up on the Green Monster (the best seats in MLB), the seats extended over Lansdowne Street. The City of Boston allowed the Red Sox to build over the City's air rights, but Boston charges the Red Sox a rental fee to reimburse the City for its air space. 

Always working hard to learn more about property law.

On the Road Again--Pics of My Gig in Boston

                                   Is this me? Or my Secret Identity, Bobby Seger?

Like a rock. I don't need no spotter!

Be back soon. Speaking at B.C. Law on Tuesday and Suffolk Law on Wednesday. But I can't wait to get back to Property. Remember, don't fight the language that creates various estates, future interests, or the text of statutes and the Constitution. Just because I am older now and still running against the wind doesn't mean that y'all shouldn't run with the wind at your backs.

Signing off from Katmandu. Enjoy this break from Property and relax a little. Balance is the key

Zoom Link For Jeopardy Event

 https://unl.zoom.us/rec/play/kV6yR25t1uc_1cbQRaBu4VAdFcF88n-NFpPraryBJFPFOXiZ1VzDOpcZyQijlHslIrUeBYK9GdGAhl8d.ODlphhVtTiHxLdPt?continueMode=true&_x_zm_rtaid=Hvmz7gkKQPuEo_XWyGh6Dg.1680274853525.913523a9b9eecb4e69cf71c4e83a3d07&_x_zm_rhtaid=504

Two Things

 1. As I already told you in class, my school choice article will not be on the exam. It relates to property because of exclusionary zoning and students trapped by zip code in low-performing schools, but I will not test you on my article or on the issue.

2. I really enjoyed our in class discussion of school choice. I know many of you oppose school choice, but it is wonderful that we could have a spirited and civil discussion of the issues. Thanks to all of you who participated in our class discussion.

See you on April 10 when I get back from taking UNL Law on the road.

Apartments Used to "Buffer" Single-family Homes

Notice on p. 885 of Arlington Heights the Court talks about how one of the purposes of R-5 zoning (multiple family housing--i.e. residential apartments) is to "serve as a buffer between single family development...and commercial or manufacturing districts."

What do you think about this buffering function of apartments?

Why should lower-income families (and their children) be used as a means to an end, as the means of absorbing the traffic and congestion from commercial/industrial districts in order to buffer and protect more affluent families who live in single-family zones?

Chew on this for awhile and think deeply about it.

Assignments for March 27-29

 Tahoe-Sierra (link): Murr v. Wisconsin (Link); Preview of this Term's Takings Case: Tyler v. Hennepin County, Minnesota (link); Takings Summary

  Exclusionary Zoning and Equal Protection

Washington v. Davis (link); Casebook p. 883-896; Con Law Video on Equal Laws vs Equal Results:
https://use.vg/CvcTZk 

 Casebook p. 897-914: My School Choice Article (PDF Provided)

The video linked above is one I recorded for my Con Law class when we were zooming law school. I recorded the entire Con Law class over the summer of 2020 (alone in Room 113 with a video recorder) so we could have something that at least resembled real law school notwithstanding  Zoom Law.

Dolan v. Tigard Plan

"In 1991, the Dolan family asked the city of Tigard, Oregon, for a permit in order to double the size of A-Boy West, the family's electrical and plumbing supply store. In return, the Dolans were asked to dedicate part of their adjacent land to the city--some of it within the Fanno Creek floodplain and some of it for a bike path. The Dolans sued the city, claiming their land was being taken without just compensation--and they won in the U.S. Supreme Court in 1994. Drawing by Dennis McClendon; source, city of Tigard." Source American Planning Association

"Money Finally Returned to Charlotte Trucking Company Owner After 2020 Seizure at Phoenix Airport"

 Civil Forfeiture Case

 

Nice win for IJ!

Assignments for Week 7 (March 20-22)

Finish our discussion : Regulatory Takings: Penn Central (casebook p. 820-836); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw)

Euclid (casebook p.753-763); First English (casebook p. 816-820)

Lucas (casebook p. 836-849)

Nollan and Dolan (casebook p. 849-868)

 For Wednesday:

 Palazzolo (casebook p. 868-879); Tahoe-Sierra (link): Murr v. Wisconsin (Link);

Greetings From Spring Training

                  

Remember, work hard but leave time to relax. Life is good. Take time to enjoy it.

And here is my scorecard (I always try to score games I attend):

       

Pursuit of Happyness: A Great "Property" Movie To Watch During Spring Break

If you want to relax without feeling guilty over the break, here is a "property" movie you may wish to rent for fun.

This movie is about poverty and wealth, hard work and achievement, giving a helping hand up to those who need help, and asking how to succeed rather than railing in envy against those who have succeeded.
My whole family really enjoyed this movie. Just remembering this movie has made me want to watch it again. I think I still have it recorded on my dvr.

And, of course, there is always Sense and Sensibility if something about the Fee Tail is more your preference!

Pennsylvania Coal: One Final Question

 The Court held that the statute went too far and thus was a taking under the Fifth Amendment. Does this mean that the state of Pennsylvania may not protect homes, other buildings, and even public streets from subsidence damage?

What may the government do?

Some History of Grand Central Development

Link

Secret to Reading SCOTUS Decisions

 Be skeptical and open-minded. Do not be deferential to the Court's reasoning. Demand that the opinion persuade you of its correctness. Ask hard questions. Be a lawyer, not an obedient subject of the judiciary.

Assignments for Week 6 (March 6-8)

 Read Prof. Linder's Introduction to Takings Clause (link);Casebook p. 791-807 (Public Use Requirement) 

U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto);Cedar Point decision

Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)

 

If time permits: Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw)

Preview of Coming Attractions

                                  

                                                       Geraldine Tyler

 

SCOTUS just granted cert review in an important property rights case-- TYLER, GERALDINE V. HENNEPIN COUNTY, MN, ET AL.. Here is a summary of the case from Prof. Somin:

On Friday, the Supreme Court decided to hear a case challenging the constitutionality of a Minnesota state law empowering local governments to seize the entire value of a property in order to pay off a much smaller delinquent property tax debt. The property owner in the case—93-year-old widow Geraldine Tyler—argues that this kind of uncompensated seizure of home equity violates the Takings Clause of the Fifth Amendment, which requires government to pay "just compensation" anytime it takes private property, and the Excessive Fines Clause of the Eighth Amendment.

The case has important implications beyond Minnesota. Ten other states have laws that allow similar "home equity theft."

See link here

 

We will preview this case at the end of this unit on Takings. Oral arguments are set for April 26 2023.

Richard Epstein's Book "Takings" is "Dangerous"

                             BEWARE--DANGEROUS CONSTITUTIONAL RIGHTS AHEAD


Then Senator Joe Biden calls one of my all-time favorite books, Richard Epstein's Takings, the most dangerous book ever written  during the Supreme Court confirmation hearings of Justice Clarence Thomas.

If you want to live life in the fast lane, read it sometime on your own. YOLO

Poletown Overruled

The Michigan Supreme Court explicitly overruled the Poletown decision in County of Wayne v. Hathcock, 684 N.W. 2d 765 (Mich. 2004).

As Prof. Dukeminier et al. describe the holding in Hathcock, the Michigan Supreme Court relied heavily on the Poletown dissent and "held that transfer of condemned land to private parties is appropriate as a public use [under the Michigan state constitution] only where 'public necessity of the extreme sort' requires eminent domain to assemble land on behalf of enterprises generating public benefits (for example, rights of way, railroads, and highways...); or where the condemned property 'remains subject to public oversight after transfer' (for example, the property is transferred to a regulated public utility...); or where the property is taken not in the interests of private parties to whom it is transferred, but rather because of 'facts of independent public significance' (for example, to clear blighted land)."

It is important to recognize that the U.S. Constitution establishes only the floor of protection against non-public use takings (as well as other property rights). State constitutions also contain provisions protecting property owners against takings and these may provide more protection than does the U.S. constitution. There has also been a great deal of post-Kelo legislation enacted by state legislatures providing at least some additional protection.

For an article on the "backlash" against Kelo, see Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo (link) I am not assigning this article, merely mentioning it for those who wish to dig deeper.

Takings Litigation and Social Justice

 Imagine litigation in which the government's lawyers are arguing that an endangered species is not a taking that requires compensation, and the property owner's lawyers arguing that the law has deprived the landowner of most of the value of his property and therefore is a taking that requires just compensation.

Which of these lawyers is seeking justice by representing their clients in this case?

Assignments for Week Six (Feb. 27-Mar 1)

 Finish Our Coverage of RAP

  Concurrent Ownership

Casebook p. 371-379; 385-405

Casebook P. 412-420

 

 Maybe we will start our discussion of the Takings Clause of the US Constitution:

Read Prof. Linder's Introduction to Takings Clause (link);Casebook p. 791-807 (Public Use Requirement)

"Who Says You Can't Physically Partition a Single Family House?"

Here is an interesting post from the PropertyProf blog (link):

CNN has a fascinating story about a Cambodian couple who cut their house in two when they divorced. (More accurately, the husband cut the house in half and moved his part to land owned by his parents). You MUST click through to see the picture.

Capitol Savings & Loan Case (p. 350)

Suppose Grutz conveys:

to A and his heirs, but if the property is ever owned or occupied by any "colored person or persons," then to B and his heirs

Assume that the property is sold to an African-American family and B files a lawsuit asking the court to enforce the forfeiture and quiet B's title in fee simple.

Are racist conditions or restrictions consistent with public policy?

Do such restrictions violate federal, state and local fair housing laws and similar anti-discrimination laws?

Would judicial enforcement violate the Equal Protection Clause of the US Constitution?

What about a covenant in a modern "exclusive development" that restricts use of the land to single family residential use only and requires single family houses to "be no less than 3500 square feet of finished living area, and to be constructed with brick exterior walls and cedar shake shingle roofs?"

Is this consistent with modern public policy and fair housing laws? Why or why not?

What about a covenant that required owners of property in the development to have annual incomes of $250,000 or more?

Contrary to public policy? Why or why not?

Assignments for Week Five (Feb. 20-22)

 Casebook p. 323 -328; Blog Post (formerly Handout 5)

 Casebook p. 334-355

Maybe we will get to this one:

 Casebook p. 355-361; 366-370; Blog Post (formerly Handout 6)

If You Are Struggling With Estates and Future Interests

 My instincts inform me that many of you are getting this material, but some of you are struggling. 

If you are getting it, good work! Keep it up!

If you are struggling, you need to try to master the material before you come to class. Read the casebook pages as many times as it takes for you to have a basic understanding of what they are saying. Read and re-read the blog posts until you understand what I am teaching there. When we discuss these materials in class, 70% or 80% of what we discuss should be confirming (and embedding in your memory) what you already know. If this is not the case for you, you need to work harder before you come to class. 

You either know this material or you don't. Like in language vocabulary, there is a right answer and many wrong answers. You need to master the materials so you can identify the correct answer.

But again, many of you are getting this. Bravo!

 If you are not, then more work is the only cure that may help.

Let's Re-write Ben Potter's Will in Caccamo case

Ben Potter’s will devised Blackacre to his granddaughter, “Anna Naomi Coverdale, in fee simple and absolutely forever; but in case the said Anna Naomi Coverdale should die without leaving lawful issue of her body begotten then and in that case I give, devise and bequeath all the same over unto” the children of William B. Potter in fee simple.

If we were counseling Ben Potter in preparation for drafting his will, what should we have asked him about his intentions concerning his granddaughter, Anna?

Did he want her to have a Fee Simple Absolute, an estate she could sell and liquidate into cash?

Did he want her to have a Fee Tail, an estate that could be converted into a Fee Simple Absolute?

Or did he want her to enjoy the property during her lifetime and at her death pass it on to her children if she had any, or else to the children of William Potter?

 Let's try to draft this provision in Ben Potter's will to better accomplish his purposes and to do so without resorting to an unusual defeasible fee. 

How about this: "to Anna for her life, and at her death to her then living children, but if no children of Anna survive her, then to the then living children of Ben Potter and their heirs."

Caccamo case (p. 302)

The Late, Great Quincy-the-Wonder-Dog's 2009 Halloween Costume (Photo by Kat Duncan)

Ben Potter’s will devised Blackacre to his granddaughter, “Anna Naomi Coverdale, in fee simple and absolutely forever; but in case the said Anna Naomi Coverdale should die without leaving lawful issue of her body begotten then and in that case I give, devise and bequeath all the same over unto” the children of William B. Potter in fee simple.

So what do you think Ben Potter was trying to convey to Anna?

 

Fee Simple Absolute: “to Anna and her heirs in fee simple absolute”

 

Fee Simple Defeasible: “to Anna and her heirs in fee simple absolute, but if at the time of her death she is not survived by a lineal descendant, then to the children of William Potter in fee simple absolute.” [Definite Failure of Issue] 

 

Fee Tail: “to Anna and her heirs in fee simple absolute, but if her line of descendants should ever fail, then to the children of William Potter in fee simple absolute.” [Indefinite Failure of Issue]

Take a look at the Nebraska statute on this issue:

76-111. Definite failure of issue, defined.

Whenever property is limited upon the death of any person without heirs or heirs of the body or issue general or special, or descendants or offspring or children or any such relative described by other terms, such limitation, unless a different intent is effectively manifested, is a limitation to take effect only when such person dies not having such relative living at the time of his death or in gestation and born alive thereafter, and is not a limitation to take effect upon the indefinite failure of such relatives; nor, unless a different intent is effectively manifested, does it mean that death without such relative, in order to be material, must occur in the lifetime of the creator of the interest.

Source:

Laws 1941, c. 153, § 11, p. 596; ; C.S.Supp.,1941, § 76-1011. ;