Monday, November 21, 2005

Is Justice Stevens a Vulcan?

A few weeks ago, I posted on some of Tom Merrill's remarks at the GELPI Takings Conference, where he described two frameworks for looking at issues like public use:  the utilitarian frame and the moral rights frame.  The utilitarian frame is concerned with promoting the common good, and as a result would favor a broad reading of "public use".  The moral rights frame, in contrast, would be more concerned with a property owner's interest in maintaining possession of property, and as a result would favor a narrow reading of "public use".

I covered Kelo last week in my Property Theory seminar.  In a reaction paper discussing the case, one of my students described the majority opinion as Vulcan, imagining the following conversation between Kirk and Spock:

Kirk:  We can't just kick people out of their homes!

Spock:  Captain, your concern about a few property owners is irrational; this taking is clearly for the greater good.

While Merrill's categories might have more academic appeal, I think that the Spock/Kirk distinction is a lot more fun.  Plus, there is the somewhat unexpected result that Justice Stevens is playing the role of the arch-rational Spock, while Justice Thomas is playing the role of the emotional Kirk.

Ben Barros

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Can you please describe your "reaction paper" method / requirements? I'm always looking for ways to improve my own similar idea for my seminar.

Posted by: Joe Miller | Nov 21, 2005 8:46:12 AM

Sure. I have the students write four reaction papers over the course of the semester. Each paper is a short (one or two pages) reaction for the week's reading. Some are critical. Some are positive. Some relate the reading to prior material we covered. Some raise issues the student would like to discuss with the class. The papers are due the day before class, and I incorporate the issues raised by the reaciton paper into our class discussion of the reading. I've been very pleased with the quality of the papers for the seminar -- they have been very thoughtful. They also have the added benefit that the students who have done reaction papers are always very well prepared for class.

Posted by: Ben Barros | Nov 21, 2005 9:21:37 AM

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