Thursday, November 30, 2006

Median v. Mean LSAT

Could someone who has knowledge of these things explain to me why it is that US News and others are fixated on median LSAT rather than mean LSAT?  It seems to me that both would be relevant measures of student quality, and that mean LSAT might be a better measure of aggregate student quality.

Ben Barros

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November 30, 2006 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 29, 2006

Roberts on Off-Site Conditions and Disclosure Duties

Florrie Young Roberts (Loyola LA Law School) has posted Off-Site Conditions and Disclosure Duties: Drawing the Line at the Property Line on SSRN.  Here's the abstract:

In most states, a seller of real property has an affirmative obligation to make disclosures to the buyer concerning the condition of the property being sold. In general, a seller must disclose any defect that is known to the seller, not observable to the prospective buyer, and materially affects the value of the property. The vast majority of cases involving a seller's disclosure duty concern “on-site conditions” or defects located within the boundaries of the property being sold, such as a leaky roof or a cracked foundation.

This article discusses the unresolved issue of whether the seller must also disclose “off-site” conditions or defects outside the confines of the property. Examples of such conditions are neighborhood noise, proposed construction in the area, or a nearby toxic dump. The article explores the many differing judicial and statutory approaches to this issue. It evaluates these approaches and analyzes the underlying policies that should be considered. It concludes that the costs of requiring disclosure of off-site conditions are too high to warrant the problems associated with such a rule. It proposes instead that a bright-line rule of no disclosure should be imposed. Such a bright-line rule would provide predictability, promote judicial economy and efficiency, and not compromise fairness.

Ben Barros

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November 29, 2006 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (3) | TrackBack (0)

Whom Do You Trust?

Over at the Religion Clause blog, we learn about a controversy surrounding the new $1 coins:

WorldNet Daily reported yesterday that the new presidential dollar coins to be released next month will no longer have the motto "In God We Trust" on the face of the coin. Instead the motto will be moved to the thin edge of the new gold-colored dollars, as will the minting date and the motto "E Pluribus Unum". (Artist's rendering of the coin.) The U.S. Mint says the change will permit larger portraits of the presidents on the face of the coins. Some conservatives have found more sinister motives. Judicial Watch's blog, Corruption Chronicles, headlined its posting on this "US Mint Appeases Atheists".

Hmmm. This is an interesting marketing strategy by the U.S. Mint. They desperately want people to use these $1 coins, yet they stir up a culture war dispute guaranteed to lead to a boycott of the coins by groups opposed to this literal marginalization of God. When is Wal-Mart going to start minting legal tender?

Rick Duncan

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November 29, 2006 | Permalink | Comments (4) | TrackBack (0)

Monday, November 27, 2006


Over at the VC, Prof. Jim Lingren reports on research that supoorts his conclusion:

that respondents who express traditionally racist views (on segregation, interracial marriage, and inborn racial abilities) tend to support greater income redistribution. All nine spearman correlations between the three racism variables and the three redistribution variables are significant, with coefficients ranging from .067 to .142.


The data are broadly inconsistent with the standard belief in the social psychology literature that anti-redistributionist views are positively associated with racism. The results are a problem for the academic assumption that opposing income redistribution indicates hostility toward other groups and a desire to dominate them. Indeed, many social psychologists believe that the link between opposing redistribution and social dominance is so strong and clear that opposing redistribution can be treated as a measureof social dominance orientation.

As they say, read it for yourself.

Rick Duncan

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November 27, 2006 in Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Timothy Sandefur on "The Great Property-Rights Revival"

Here is the article (from NRO) and here is an excerpt:

Election Day revealed some of America’s deepest political differences, and marked an important change in the nation’s direction. But there was one issue on which Americans were strongly united: They overwhelmingly demanded restrictions on the government’s power of eminent domain.

In a powerful response to last year’s Supreme Court decision in Kelo v. New London, voters approved nine state-ballot initiatives prohibiting the seizure of homes and businesses for private development. These initiatives — in Florida, New Hampshire, Arizona, and Michigan — won in a landslide, with a nationwide average of some 75 percent in favor. Louisiana passed a similar initiative in October.

Only two eminent-domain initiatives — in California and Idaho — failed. California’s came within a few percentage points of succeeding, despite the powerful opposition of government and wealthy interest groups.


In years past, bureaucrats have come to see themselves as responsible for creating the kind of cities they want to see, and they view citizens’ property as raw material for them to manipulate. The nationwide backlash against the Kelo decision should show them how wrong that attitude is.

Government exists to protect people’s property rights, not to violate them. When it undertakes development by seizing people’s property and giving it to others, it commits exactly the kind of injustice our Founding Fathers rebelled against two centuries ago. On Tuesday, Americans rebelled against it again.

Timothy Sandefur is a staff attorney at the Pacific Legal Foundation, and author of the Cato Institute book Cornerstone of Liberty: Property Rights in 21st Century America.

Rick Duncan

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November 27, 2006 in Takings | Permalink | Comments (1) | TrackBack (0)

Harvard/Boalt/UCLA Junior Faculty Workshop on Environmental and Natural Resources Law

From the announcement:

Harvard Law School, Boalt Hall, and the UCLA School of Law are pleased to announce a new, jointly sponsored academic workshop, to be held annually and on a rotating basis at the three institutions. The aim of the workshop is to support the development of junior scholarship in the field of environmental and natural resources law (broadly and inclusively conceived to include interdisciplinary work that cuts across related fields or disciplines). The workshop is a joint east-west coast venture.


We are soliciting papers from tenure-track scholars either untenured or with no more than three years of tenure. The papers must be unpublished when they are submitted, and may be on topics that include: Environmental Law and Policy, Natural Resources Law and Policy, Land Use, Risk Regulation, International Environmental Law, Environmental Justice, Energy Law, Environmental Federalism, Environmental Law and Constitutional Law, Environmental Law and Administrative Law, Empirical approaches to Environmental Law or Resource Management, Environmental Governance, Environmental Economics and Law.

The inaugural event will take place this summer at Harvard Law School on Wednesday, June 13th. We are aiming to select a small number of papers for presentation at the workshop, which will be an all-day event. Authors will be expected to give a short presentation of their papers at the workshop to be followed by two commentators. The workshop will consist of the selected authors, the three host professors (Professors Freeman of Harvard, Farber of Boalt Hall and Carlson of UCLA), and six to eight guest commentators from the relevant fields.

PAPER SUBMISSION PROCEDURE: Please send papers and any questions about the workshop to Miriam Seifter, Environmental Law Fellow: [email protected].

Ben Barros

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November 27, 2006 in Conferences, Land Use, Natural Resources | Permalink | Comments (0) | TrackBack (0)

"'Apostles' Ordered to Abide by Zoning Laws"

Here are some excerpts from this interesting Washington Post article:

As much of Washington started to shut down for the Thanksgiving holiday yesterday afternoon, Brian O'Neill Jr., a Georgetown University undergrad and founder of the Apostles of Peace and Unity, sat outside the office of the city zoning administrator, angry.

His sentences were short, his tone frustrated. His faith, the college junior said, was being challenged, and he didn't like it.


The day before, at 6:24 p.m., O'Neill had been served an official order "to cease and desist from the illegal use of premises" -- the premises being 1617 35th Street NW, a stately house in Georgetown in an elegant neighborhood where zoning rules allow only six unrelated people to live together.

O'Neill and eight friends moved into the house in August, filing to incorporate as a nonprofit religious organization exempt from the six-person limit.

Some of the Apostles' parents thought that the filing was "ingenious," but many neighbors and others in Georgetown were outraged at what they considered a combination of blasphemy and disregard for the intent of the city's law.

Thanks to Casey Duncan at UT's Tarlton Law Library for the pointer.

Rick Duncan

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November 27, 2006 | Permalink | Comments (1) | TrackBack (0)

NY Times on Zoning Against Sex Offenders

Today's NY Times has an interesting article on zoning laws that restrict sex offender residency.  Here's an excerpt:

The man identified in court documents as A. B. does not talk to his neighbors or tarry at the convenience store. Seventy-seven years old, soft-spoken and sometimes confused, he hardly ever leaves the little ranch house he bought in 1969. “People know what’s what with me,” he said.

What’s what with A. B. is that he moved back here last year after serving seven years in prison for sexually molesting two grandchildren and another youngster. And because his home is in a “child safety zone” drawn by the township, he may be forced to leave it.

But the public defender’s office in New Jersey, a state government agency, filed suit against the township on his behalf last month, claiming that the ordinance not only violates his right to due process, but also conflicts with a state law requiring that parole officers decide where registered sex offenders live. It is the first such case the agency has taken up, and could herald a curb on the rapidly proliferating local ordinances that threaten to push pedophiles to the fringes of civilization.

Such regulations — more than 100 have been enacted in New Jersey municipalities — are popular around the nation. More than 20 states have broad laws keeping sex offenders from schools, churches, playgrounds and the like. This month 70 percent of California voters approved expanding statewide restrictions to include more sex offenders, and authorized towns to designate even stricter limits.

Ben Barros

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November 27, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Sunday, November 26, 2006

Episcopal Church, Sexuality and Property Disputes

Here is an AP story that reports:

The Episcopal task force on property disputes related to the church fight over the Bible and sexuality is monitoring dioceses it considers problems for the church.


Since the 2003 consecration of the first openly gay Episcopal bishop, V. Gene Robinson of New Hampshire, some traditionalist parishes have split from the U.S. denomination. Church leaders are trying to prepare for any legal fights over the properties.

[Task force leader, Bishop Stacy] Sauls says lawyers, including several diocesan chancellors and a federal judge, are helping the bishops prepare.

The task force is "maintaining contact with Episcopalians in those dioceses who wish to 'remain loyal to The Episcopal Church.'"

Hmmm. I bet there are different views among Episcopalians as to exactly which Episcopalians are "loyal" to the church, but that is an issue for another day and another blog.

Thanks to Religion Clause blog for the pointer.

Rick Duncan

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November 26, 2006 | Permalink | Comments (0) | TrackBack (0)

"Only the Strongest Survive"

Today's NYT has an article about the Landlord-Tenant market in Gotham City that begins:

ALTHOUGH qualifying to rent an apartment in New York City is not yet as tough as winning admission to Harvard or Yale, it increasingly feels that way to a large contingent of aspiring tenants — even if they actually attended Harvard or Yale and easily passed muster with their previous landlord.

Among the 50,000 background checks run this year on Manhattan tenants by, a national background-checking and leasing service used by some landlords and managing agents, fully 41 percent of applicants garnered a rating of either “reject” or “maybe” (21 and 20 percent respectively).

That means a fifth of would-be renters are being shown a different door than they had hoped, while another fifth struggle to upgrade their conditional status.

Hmmm. This kind of real estate market seems like a galaxy away from where I sit on my acreage off a gravel road here in Nebraska, where the deer and the antelope play.

Rick Duncan

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November 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Professor Bainbridge on the Economics of Tipping

Here. And here is an excerpt:

When you are a regular customer at a given restaurant, developing a reputation as a good tipper presumably results in better service, while developing a reputation as a lousy tipper presumably results in an increased frequency of "spitters." In contrast, using our recent trip to Hawaii as an illustration, I noted that when one will only interact with a waiter once (or are interacting for the last time), it's economically irrational to tip. After all, you'll never be back, so there's no chance for better service but there's also no risk of a spitter. As I put it, in a one time or final period setting, a hard-hearted economically rational actor wouldn't tip.

So, about Hawaii: did he or didn't he? Read his post for the answer.

Rick Duncan

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November 26, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 22, 2006

Latest on Brown University's Slavery and Justice Committee

BrownuniversityYou might be interested in this article ("After Brown U.'s Report on Slavery, Silence So Far: Few other universities appear ready to investigate  their historical ties to the slave trade") from the Chronicle of Higher Ed on the aftermath of Brown University's report on slavery and also Professor James Campbell's discussion with Chronicle readers about the report.  We'll see where this all goes.  Over at blackprof, where I've been visiting for the month, I've predicted a few schools that I think will follow Brown's lead.  We'll see.  We won't be able to measure the effects for a while.

Update:'s Elizabeth Redden has a comprehensive article, "In Search of Skeletons," talking about other universities and moving from slavery to connections (sometimes rather loose) to the Nazis.

November 22, 2006 | Permalink | TrackBack (0)

Happy Turkey Day

I love Thanksgiving.  I suppose if you wanted to overthink it, you coTurkey_piculd use the day as an occasion to review Johnson v. M'Intosh or some other historical facts.  I prefer to use the holiday to give sincere thanks for the many good things in my life, and to eat a lot.  Thanksgiving strikes me as a very traditional and conservative holiday.  In that spirit, I'd just like to share my humble opinion that all true Americans should eat turkey on Thanksgiving, just like the Pilgrims and the Indians did (in the elementary school version, at any rate).  Eating anything else strikes me as un-American.  I'll make an exception for anything you hunt and kill yourself.  But one friend of mine told me once that her family ate prime rib on Thanksgiving.  I suggested that she and her family move to Canada. 

Ben Barros

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November 22, 2006 in Miscellaneous | Permalink | Comments (3) | TrackBack (0)

Tuesday, November 21, 2006

AEI Conference: Is There a Constitutional Right to Medical Self-Defense?

Here is the announcement from AEI:


Friday, December 8, 2006  12:15 PM


Friday, December 8, 2006  2:00 PM


Wohlstetter Conference Center, Twelfth Floor, AEI
1150 Seventeenth Street, N.W., Washington, D.C. 20036
Directions to AEI

In the recent case of Abigail Alliance v. von Eschenbach, a divided panel of the United States Court of Appeals for the D.C. Circuit held that the due process clause required the Food and Drug Administration (FDA) to allow terminally ill patients the opportunity to use last-hope drugs that have not received final FDA approval.

In a forthcoming Harvard Law Review article, UCLA Law Professor Eugene Volokh offers a new doctrine of "medical self-defense" that also justifies this ruling. Volokh suggests that the medical self-defense principle could be applied to the constitutionality of abortion rights and would provide constitutional grounds to strike down laws prohibiting financial compensation for organ donation.

Is medical self-defense a coherent legal concept that can justify constitutional intervention by courts in controversial cases regarding abortion or organ sales? Could it become a tool used by judges to substitute their policy preferences for those of legislators? Is Professor Volokh correct that litigants have a feasible chance of the doctrine finding a home in the Roberts Supreme Court?

Participants at this event will discuss these and other questions. Professor Volokh's presentation will be followed by a discussion with two other distinguished law professors, Richard Epstein of the University of Chicago and Jeffrey Rosen of George Washington University. Ted Frank, director of AEI's Liability Project, will moderate.

Here is a link if you wish to register to attend.

Rick Duncan

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November 21, 2006 in Conferences | Permalink | Comments (0) | TrackBack (0)

If it looks like a geoduck, and quacks like a geoduck, it must be

A clam?

Geoduck growers versus property owners

Rick Duncan

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November 21, 2006 | Permalink | Comments (0) | TrackBack (0)

RLUIPA in the News in Michigan

Today's Detroit Free Press has a report that includes this excerpt:

Lighthouse Community Church of God and the City of Southfield are headed to a trial in federal court over a dispute that started with an eviction order by the city.


The dispute started in Southfield district court after the city won an eviction order against the church for failing to have a certificate of occupancy. After Lighthouse lost its appeal in Oakland County Circuit Court, it filed in federal court, contending the city violated a 2005 federal law that prevents governments from discriminating against religious organizations in land deals.

The city's position is that the federal law is unconstitutional and shouldn't be applied to local zoning laws. It asked the court to dismiss the case.

The church's position is that Southfield would prefer a residential development on the 10 or so acres at 8 Mile and Southfield roads and has used the issue of parking as a red herring to avoid giving Lighthouse zoning approval and hence, the occupancy certificate.

Thanks to Religion Clause blog for the pointer.

Rick Duncan

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November 21, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 19, 2006

Marital Home a Fraud Because No Cohabitation Before Marriage?

Here is a news item that lies at the intersection of immigration law, family law, and property. It seems that in a recent Virginia case involving immigration fraud the prosecutor attempted to prove that Sofia Winkler's marriage was fraudulent by introducing evidence showing "that Winkler didn't move in with the man who would become her husband until after they were married in 2002."

As a sometime colleague of mine from another law school observed: "Perhaps it really is true that we have finally reached the point where there is something irregular and at least arguably suspicious about a married couple who claim that their love and marriage are genuine but they were not living together before the wedding. How times have changed!"

I hope someone out there who knows immigration law will comment and inform us that there is nothing suspicious about a wedding that occurs before cohabitation. Please. I am blegging!

Rick Duncan

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November 19, 2006 in Recent Cases | Permalink | Comments (1) | TrackBack (0)

Friday, November 17, 2006

Property Section Newsletter

I've just posted this year's AALS property section newsletter.  The newsletter, among other things, describes the property-related events at the AALS meeting in D.C. in January.

Ben Barros

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November 17, 2006 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, November 16, 2006

NY Times on Eminent Domain Initiatives

Yesterday's NY Times has an interesting article on the eminent domain initiatives that were on the ballot last week.  As you'd expect from the Times, the article is a little biased against the property-rights position, but overall is pretty good.

Ben Barros

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November 16, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 15, 2006

Atuahene on Legitimizing Property Rights

Bernadette Atuahene (Chicago-Kent College of Law) has posted Legitimizing Property Rights When Past Theft Colors the Distribution of Property on SSRN.  Here's the abstract:

How does a democratic state legitimize strong property rights when property arrangements are widely perceived to be defined by past theft? The answer, I argue, is through restorative justice measures that redistribute wealth based on past dispossession. This answer, however, leads to two more complex questions: Who gets priority in the restorative process given limited resources and how should the process unfold? The concise answers to these two ancillary questions are:

First, instances of what I call property-induced invisibility should be prioritized as a baseline for achieving legitimacy. When property is confiscated in this manner people are removed from the social contract and made invisible. Widespread invisibility is of particular concern because it can lead to chaos and instability and places the legitimacy of existing property arrangements in serious doubt. Consequently, states must, at minimum, rectify property-induced invisibility in the restorative process.

Second, societies must change the focus from restoration of the physical property confiscated to the larger project of restoring an individual's relationship to society. This will happen if those subject to property-induced invisibility are included in the social contract through a bottom-up process that provides the dispossessed with asset-based choices. The process of allowing people to choose how they are made whole will do a substantial amount of work towards correcting property-induced invisibility and thereby increasing the legitimacy of existing property arrangements.

I use a South African case study to test the practical effect of my theories of invisibility and restoration.

Ben Barros

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November 15, 2006 in Property Theory, Real Estate Transactions, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)