My comments submitted to NCBE regarding removal of land use subjects from the bar

I submitted the following comments to the NCBE today.  I welcome folks' thoughts and would be happy to post other professors' or professionals' comments on the blog, too.

Also, I asked NCBE to review my analysis in a previous post as to the subjects to be eliminated.  NCBE confirmed that my analysis was correct.

Here is the website where you can submit formal comments to NCBE:  https://nextgenbarexam.ncbex.org/csopc-register/. 

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I want to start by saying that I recognize the difficult work it takes to restructure the bar exam, and I commend all of those associated with this effort.  I also understand the desire to reduce the number of subjects on the bar and I generally support that effort.  Nonetheless, I have concerns regarding the proposals for the Real Property subject outline.

At the outset, it is worth acknowledging that the role of the NCBE outlines in the legal academy is not readily agreed upon.  At the most obvious level, the outlines do represent the subjects that will be on the bar exam; however, I have talked to some professors that tell me they do not pay much attention to the outlines in preparing their courses.  I think that position holds more true at elite law schools where the presumption is that students will be able to acquire the details of legal knowledge in a bar course and instead the focus of teaching is primarily legal theory. 

At the other 180 (out of 200 or so) law schools, I suggest that the picture is very different.  At most law schools, preparation for class course coverage—especially in the first year courses—starts with the NCBE subject matter outlines.  I work at one of those schools, and I can attest that though we do not prescribe coverage in courses, we do expect our professors to hit most of the subjects on the NCBE outline that are relevant to first year subjects.  For those schools (such as mine), taking a topic off the subject outline will have one of two effects.  On the one hand, professors may continue to teach the de-listed topic; on the other hand, there could be increasing pressure to teach the tested subject matter more intensely with a hope of driving up bar passage scores.  Having served a term as an associate dean, it is hard for me to believe that the effect won’t be the latter.  What we will see, I believe, is more intense teaching of the subjects remaining on the NCBE subject outlines rather that faculty using the time to teach more relevant subject matter to present-day practice.  And so, I suggest that removal from the outline means, in essence, removal from teaching at most law schools.  That is probably more true the further down the rankings of schools you go, but again, my contention is that NCBE outlines are the centerpiece of course planning at the vast majority of law schools.

This brings me to the proposed changes to the Real Property subject matter outline.  The changes to the Real Property outline are essentially the following four:

1. The elimination of all land use subjects.  The existing outline requires a study of zoning laws, non-conformity, and "rezoning and other changes." 
2. The elimination of all discussion of common interest communities, the most prevalent form of private land use controls.
3. Takings also appears to be de-emphasized; it is not a starred subject in the Con Law section meaning students apparently are not expected to know the doctrine, just be able to work with it. See the intro note below.
4. Private nuisance is emphasized; public nuisance is not.

With these changes, the remaining subjects emphasize private transactional real estate practice almost exclusively.  I suggest that is highly problematic to students’ understanding of how real property law works today.  That is because the proposed change would result in virtually no coverage of public or administrative law on real property, a remarkable choice given how property operates today.  Virtually all land in the U.S. is zoned or otherwise subject to some kind of regulation.  Even in Houston, which has no zoning, land is controlled through private restrictive covenants enforced by the city through third party rights of enforcement.  If the scoping outline eliminates all forms of public regulation of property, students in classes guided by the outline will leave with a deeply misguided sense of what property is today. 

It also strikes me as an unusual time in the history of property to decide to eliminate land use topics from the bar.  There is arguably more interest in land use regulation than ever, in large part due to the heightened understanding within the last decade of how these regulations have been abused to segregate communities along racial and class lines.  There is also an increased focus on land use due to the unprecedented challenges of housing affordability.  There is also recognition that land use is essential to resolving the climate crisis.  As California’s 2017 Scoping Plan noted, “Contributions from policies and programs, such as renewable energy and energy efficiency, are helping to achieve the near-term 2020 target, but longer-term targets cannot be achieved without land use decisions that allow more efficient use and management of land and infrastructure.”  California’s 2017 Climate Change Scoping Plan, CAL. AIR RES. BD.,  100 (2017), https://ww2.arb.ca.gov/sites/default/files/classic/cc/scopingplan/scoping_plan_2017.pdf.https://ww2.arb.ca.gov/sites/default/files/classic/cc/scopingplan/scoping_plan_2017.pdf.  That the bar would de-emphasize these subjects at a time of heightened interest in the topic is hard to understand.

I am similarly concerned about the elimination of the common interest community (CIC).  My understanding is that there are presently very few traditional restrictive covenants of the two-party variety drafter much anymore; all of the action is in CICs.  According to a recent paper, nearly 60% of new residential construction is subject to HOAs, a residential form of CICs.  See Wyatt Clarke & Matthew Freedman, The rise and effects of homeowners associations, 112 J. of Urban Economics (2019) 1–15.  Commercial developments are also commonly subject to CICs, which has become an ever-increasing headache for redevelopment of aging commercial properties.  Teaching restrictive covenants without teaching CICs is a decision to teach an ancient rule without teaching its modern real-world application. 

Similarly, the de-emphasis of takings and public nuisance is odd to me at a time when the Supreme Court seems interested in re-framing the takings clause as an ever-increasing sword against a variety of governmental administrative action.  Cedar Point Nursery is indicative of that trend, but I believe there is reason to presume that the trend is just beginning. 

Finally, I do want to commend the expansion of fair housing within the revised outline.  However, if the outline is adopted as proposed, fair housing will be the only public law real property subject left.  I do want to note, though, fair housing as typically taught does not operate the way the other public law subjects proposed for elimination and de-emphasis do.  The disparate treatment and disparate impact claims under the Fair Housing Act operate primarily through litigation, while most of the other public and private regulation subjects slated for removal are primarily administrative in nature.  As a result, it would be wrong to think that fair housing could stand in as representative of public and private law real property regulation because the implementation of fair housing is unique in the world of real property.  Ironically, the most active discussions around fair housing these days are on the long-forgotten third prong of the Fair Housing Act, which requires local governments to “affirmatively further” de-segregated communities.  The first effort to give force to that prong of the Act was the Obama-era Affirmatively Furthering Fair Housing Rule (AFFH Rule) and recently revived by the Biden Administration.  The tenets of the AFFH Rule require local governments to take prospective steps towards de-segregation.  How so?  Almost universally, those steps are administrative in nature and focus on land use policy changes slated for de-emphasis or elimination on the bar.  See HUD’s AFFH Guidebook.

For these reasons, I suggest that NCBE revisit its decision to eliminate most of the public law subjects on the Real Property scoping outline, as well as CICs.  One option would be to leave these subjects on the outline but not to star them as primary subjects.  A second option would be to more formally define the land use subjects the bar wants to test.  At present, it is admittedly unclear what aspects of “zoning” to emphasis in a day or two of first year class when the subject is massive. 

Thank you for reaching out for comment. 

STEPHEN R. MILLER Professor of Law, Univ. of Idaho College of Law [email protected]  208-364-4559  |  415-377-9501 (Cell)  501 W. Front Street | Boise, ID  83702-7232