Saturday, December 23, 2006

Are blogs naughty or nice?

Eugene Volokh says it depends.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

December 23, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Friday, December 22, 2006

"Medium Rare Scrutiny"

I need a break from grading Con Law exams, so I thought I would share with my fellow Property Professors a gem of an article describing the Supreme Court's "tiers of scrutiny" for reviewing laws under the Constitution. Many of you may try to introduce the class to strict scrutiny, intermediate scrutiny, and the rational basis test when teaching some aspect of Constitutional Law to 1L property students. And if you are looking for an article that describes this area of the law--including the fact that the three standards of review are, in reality, many more than three--you need look no further than Prof. Michael Stokes Paulsen's six-page masterpiece, Medium Rare Scrutiny, 15 Const. Comm. 397 (1998).

My students love this article, because it is both informative and hilarious. Paulsen compares the Court's tiers of scrutiny to the way he barbecues steak in his backyard in Minneapolis on his Weber grill. Thus, he speaks of Rare Scrutiny, Medium Rare Scrutiny, Medium Scrutiny, Medium Well Scrutiny, and Well Done Scrutiny. Here is a short excerpt from the article, one describing "Romer-type rational basis with a bite" scrutiny, that should give you a feel for Paulsen's magic:

But Romer-type scrutiny is probably better labeled "rare to medium rare," or--if we're really being honest--"medium-well-to-well-done-but-call-it-rare-to-medium-rare-because-that's-hipper-and-I-don't-want-to-admit-what-I'm-really-doing" scrutiny. As everyone knows, rational basis with bite is really just another way of saying "singe the statute." As Gerald Gunther might (or might not) put it, such scrutiny is "rare" in theory and fatal in fact--dead, dead meat. It's amazing how many times "rare to medium rare" ends up being burned, when the Supreme Court is barbecuing the Constitution.

This is one of my all time favorite articles. If you get bored grading your exams, take a ten minute break and read Medium Rare Scrutiny. It will clear your palate for the next batch of blue books.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

December 22, 2006 in Articles | Permalink | Comments (0) | TrackBack (0)

See You in DC?

I'll be blogging a little bit over the next week, but with the holidays coming up thinks will be a little light.  Al and I will both be at the AALS conference in DC.  If you're going to be there, please say hello.  I'll be at the property-related panels.  I'll also be at the Blawgers' Ball at Cloud on Wed. night.  For ease of identification, here are some photos:



Brophy: Brophy_pic_1

[Comments are held for approval, so there will be some delay in posting]

December 22, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Thursday, December 21, 2006

More on Kelo's Christmas Card

Here is an article that includes a picture of Kelo's Krabby Kard.

Her attitude is less than gracious, but it does illustrate the destructive force that eminent domain decisions can bring to bear on ordinary persons whose homes are taken and whose lives are turned upside down. Even generous "just compensation" cannot always heal the wounds that are sometimes caused when homes are taken. It reminds me of Holmes' famous statement about adverse possession:"The true explanation of title by prescription seems to me to be that man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, cannot be displaced without cutting at his life."

It seems that the City of New London's decision to take Susette Kelo's "little pink house" was one that cut at her life.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

December 21, 2006 in Takings | Permalink | Comments (1) | TrackBack (1)

Wednesday, December 20, 2006

Susette Kelo's Holiday Wishes

From the Hartford Courant:

Susette Kelo's holiday cards feature a snowy image of her pink house and a message that reads, in part, "Your houses, your homes, your family, your friends. May they live in misery that never ends. I curse you all. May you rot in hell. To each of you I send this spell."

The cards were conceived and produced by a friend of Kelo's and sent to city officials and members of New London's development agency.

Kelo said she also considered sending the cards to five U.S. Supreme Court justices who ruled in June 2005 that New London had the right to take homes in the Fort Trumbull neighborhood to make way for a riverfront project slated to include condominiums, a hotel and office space.

Read the article for some amusing reactions from the recipients.

Thanks to Emily Farris for the tip.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 20, 2006 in Takings | Permalink | Comments (4) | TrackBack (0)

Tuesday, December 19, 2006

Tate on Ownership and Possession in the Early Common Law

Joshua Tate of SMU's Dedman School of Law has posted Ownership and Possession in the Early Common Law, forthcoming in the American Journal of Legal History, on ssrn.  Here is Tate's abstract:

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language.

This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases. After surveying the current debate, the Article then turns to the advowson writs, which have not yet been studied as a possible example of Roman law influence. Finding some evidence of the ownership/possession distinction in the advowson writs, the Article comes to the conclusion that the possibility of influence from the ius commune is greater than Milsom thinks.

Al Brophy

December 19, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Meaning of "Lawn Jockey"

Back on September 21, Al Brophy posted a note on the history of lawn jockeys in which he noted differences of opinion as to their possible status as a remnant of white supremacist attitudes.  Evidence favoring the less benign conclusion can be found in a recent post on Slate by Seth Rosenthal, in which he argues that some federal judges are improperly granting summary judgment in cases where, in Rosenthal's view, a reasonable jury could have found for the non-moving party.  One example he cites is an Eighth Circuit case in which "the majority concluded that a black Wal-Mart employee whose supervisor routinely used racially offensive language, including repeatedly calling him a 'lawn jockey,' didn't present enough evidence to get his claims of racial discrimination to a jury."  Notwithstanding the court's decision, it is probably safe to conclude that the supervisor whose conduct was at issue did not view lawn jockeys as memorials to the Underground Railroad.  The case is Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1033 (8th Cir.), rehearing and rehearing en banc denied, 452 F.3d 1020, 1021 (8th Cir. 2006).

Carl Christensen
Comments are held for approval, so they will not appear immediately.

December 19, 2006 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Dana on Reframing the Eminent Domain Debate

David A. Dana (Northwestern University Law School) has posted Reframing the Debate over Eminent Domain Reform on SSRN.  Here's the abstract:

As a purely theoretical matter, we can predict that a flat ban on all exercises of eminent domain will result in some less development in urban areas (poor or not poor) and some more development in exurban or rural areas. We can also predict that a ban on only economic development condemnations (which allows so-called blight or blight removal condemnations to continue as before) will result in some more development in poor urban areas (but not necessarily in urban areas as a whole) and in exurban or rural ones, and less development in suburban areas (at least non-poor suburbs). We can say almost nothing about how much less or how much more. Moreover, even these minimal predictions must be qualified because restrictions on eminent domain may lead localities in fragmented land markets to rely more heavily on alternative means to reduce the costs of land assembly for developers, such as cash and infrastructure subsidies or zoning exceptions, particularly in markets where the status quo ante was imperfect competition among the localities for new development.

The qualitative claims about the nature of the development that will be encouraged or discouraged as a result of eminent domain "reforms" lack both theoretical and empirical support. Stated simply, there is no defensible way to categorize as good or bad, economically viable or non-viable, efficient or inefficient, socially beneficial or socially harmful, the development in urban areas that will be lost as a result of a flat ban on eminent domain or (in poor urban areas at least) that will be gained as a result of a ban on economic development condemnations coupled with continued allowance of blight condemnations. One reason this is so is that the two legal tests for the kinds of "public use" that are sufficient for the exercise of eminent domain - the economic development as public use test and blight removal as public use test - do not necessarily select for "good" new development according to any intelligible criteria of goodness.

In sum, we are left with a rather unsatisfying situation: a lack of any assurance as to whether there will be any net benefits, in terms of more "good" development and less "bad" development, as a result of either of the two eminent domain reform alternatives currently on the political agenda, namely, a flat ban (the Florida approach) or a ban on only economic development condemnations coupled with continued allowance of blight condemnations (the approach in most reforming states). Given this unsatisfying situation, and assuming we do care about poorer urban areas, we need to ask, we should ask: is there a different kind of eminent domain reform for which we would have more, at least some more, assurance that it will produce more good development and less bad development in those areas? The debate over eminent domain reform needs to be re-framed.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 19, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, December 18, 2006

Supreme Court Approval Ratings

Over at the VC, Orin Kerr passes on a report of Supreme Court approval ratings from a recent poll. Here are some of the individual results:

Chief Justice Roberts, 36% favorable / 26% unfavorable
Justice Thomas, 48% favorable / 36% unfavorable
Justice Ginsburg, 37% favorable / 35% unfavorable
Justice Alito, 35% favorable / 37% unfavorable
Justice Scalia, 35% favorable / 35% unfavorable

Way to go, Justice Thomas! Forty more years!

But seriously, my personal view as a conlaw scholar is that Justice Thomas writes some of the most thoughtful and well-reasoned opinions of all. I wish his views had prevailed in Kelo.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

December 18, 2006 | Permalink | Comments (5) | TrackBack (0)

Case Method in Law School Teaching

Over at the VC, David Post has some commentary on an issue near and dear to my heart -- using unedited cases in law school.  His basic position is against.  In the comments to his post, I've stated my position to the contrary.  But anyway, if you're interested in this issue, read the whole thing.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 18, 2006 in Law Schools, Teaching | Permalink | Comments (1) | TrackBack (0)

Times on Building Deadlines

Yesterday's NY Times has an interesting story on a Florida development where purchasers were originally given three years to build their homes.  The development was designed following new urbanist ideas, so the building deadline was intended in part to get some density quickly.  In part because of a decline in prices, which left a lot of the lots in the hands of speculators who can't now unload the property, most of the lots are unbuilt.  So the developer has now extended the deadline to build for two years.  There's a lot of good stuff in the article, but this extension issue seems particularly interesting -- the people who actually built on time were stiffed, though it's not clear to me that they'd be better off if the original deadline was enforced -- if that happened, many of the lots would have been forfeited, and the delays might have been even greater.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 18, 2006 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)