Wednesday, May 10, 2006
Several times this spring I was struck by the thought that my students would get a lot more out of the land use and takings material that I cover in first year property if they had already taken constitutional law. I noticed myself spending a lot of time explaining the strict/intermediate/rational basis levels of scrutiny (e.g., in discussing Belle Terre v. Boraas), which would be second nature to anyone who has taken con law. I don't think that a student can really appreciate Euclid without having a decent grounding in economic substantive due process. Ladue v. Gilleo is a first amendment case that among other things raises the distinction between commercial and political speech. Mount Laurel is based on state constitutional law, but discussion of the case would be richer if the students had read the Supreme Court's major equal protection cases. Indeed, almost every issue in zoning law, from unconstitutional delegation of legislative power in special exception cases to amortization issues presented by pre-existing nonconforming uses, is a con law issue. Takings, of course, is entirely a con law issue.
This got me to thinking about moving this part of property to an upper-level required course that would be offered after con law. But then I started wondering why this material should be required at all, rather than be left to an upper-level elective land use class. Land use and takings issues are incredibly fun to teach, but this in itself doesn't seem like a good reason to include the material in first-year property. So why should we include land use and takings in the first year property curriculum?
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