Jan 15, 2013

First Day of Class

A few weeks ago I had a dream that I walked into the first day of class unprepared to teach. It turned out to be partially accurate.

This semester I am teaching Property I and Property II, one at 9:00 a.m. and the other at 2:10 p.m.

For some reason, I mistakenly though Property I was at 9:00 a.m. and Property II was at 2:10 p.m. I mean it makes sense, you teach the first class first thing in the morning.

I was prepping all last night and first thing in the morning for Property I. About 30 minutes before class I looked at the roster. Property II came first. Crap. I very, very quickly reviewed my notes for Property II  and got ready. I had read everything, and prepared my lecture notes, but was planning on finishing the preparation after my first class so it was fresh in my mind.

I thought it went pretty well (video is here). I doubt the students even noticed. Though I could’ve really messed with them if I started talking about Johnson v. M’Intosh and acquiring property through conquest instead of Adverse Possession. I wonder how long it would’ve taken before I noticed.

Though, my first day of class last semester was perhaps the best, in the worst possible way.

I managed to knock over an entire bottle of water, drench the seating chart, and knock over my laptop within the first few minutes of class. For serious.

Fortunately it was caught on video. Pay attention to the black bottle of water next to the lectern.


As I move my laptop over, a cord knocks over the bottle. In this shot you can actually see the bottle tipping over.


And it spilled. A lot of water. A lot. Like 20 ounces. The seating chart was drenched.


I don’t skip a beat, and start wiping up waters while a video is running.


Yes I am a big klutz. Here is the full video. The waterworks begins around 6:30 .

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Jan 15, 2013

A Walk on the Supreme Court Beach?

Who is Scalia referencing here in arguments in Koontz?

JUSTICE SCALIA: The — the — the permit was granted in Nollan and Dolan. And — and the condition attached to the permit, therefore, took effect; namely, that you had to dedicate this easement over your — over your beach whereas — as my colleague pointed out, anybody could walk back and forth barefooted. (Laughter.)

It’s killing me. I’m pretty sure it is Stevens. I checked his opinion in Lucas, Nollan, Dolan, and Tahoe-Sierra and I can’t seem to find it.

Maybe it’s Brennan from Lucas? Or Blackmun? Ah, driving me nuts.

Update: OK, Breyer said something about it earlier in the arguments, but I know some other Justice wrote about this:

JUSTICE BREYER: But of course, they are land claims because they took a piece of land which everybody assumes — right in front of his house — and said you’ve got to let everybody from the beaches walk back and forth from one beach in the north to another one in the south.

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Jan 15, 2013

New York’s New Ban on “Large Capacity Ammunition Feeding Devices” (More than 7 Rounds)

From New York’s new law, all magazines that contain more than 7 rounds are now banned:

 S 38. Subdivision 23 of section 265.00 of the penal law, as  added  by
   20  chapter 189 of the laws of 2000, is amended to read as follows:
   21    23. "Large capacity ammunition feeding device" means a magazine, belt,
   22  drum, feed strip, or similar device, [manufactured after September thir-
   23  teenth,  nineteen  hundred  ninety-four,] that (A) has a capacity of, or
   24  that can be readily restored or  converted  to  accept,  more  than  ten
   25  rounds  of ammunition, OR (B) CONTAINS MORE THAN SEVEN ROUNDS OF AMMUNI-
   29  MORE  THAN SEVEN ROUNDS OF AMMUNITION; provided, however, that such term
   30  does not include an attached tubular  device  designed  to  accept,  and
   31  capable  of  operating  only  with,  .22 caliber rimfire ammunition OR A

I wonder what percentage of semi-automatic pistols accept magazines that have less than 8 rounds. Maybe subcompacts?

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Jan 15, 2013

Scalia and Breyer Guest-Star In A Very SCOTUS Episode of “Yes, Dear”

JUSTICE BREYER: And you’re — you’re — I’m picking up from — I find Justice Scalia’s hypothetical interpretations of legislative history very useful. So the — the –

­ (Laughter.)

JUSTICE SCALIA: Thank you. Thank you, dear colleague. I appreciate that.


The Justices added some levity to Levin v. United States.

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Jan 15, 2013

Constitutional Places: Lozman v. Riviera Beach

Justice Breyer’s opinion includes an appendix of the “floating home” (don’t call it a “vessel”!) in Lozman v. Riviera Beach. Here is how Breyer describes it:


In 2002 Fane Lozman, petitioner, bought a 60-foot by 12-foot floating home. App. 37, 71. The home consisted of a house-like plywood structure with French doors on three sides. Id., at 38, 44. It contained a sitting room, bedroom, closet, bathroom, and kitchen, along with a stairway leading to a second level with office space. Id., at 45–66. An empty bilge space underneath the main floor kept it afloat. Id., at 38. (See Appendix, infra, for a photograph.) After buying the floating home, Lozman had it towed about 200 miles to North Bay Village, Florida, where he moored it and then twice more had it towed between nearby marinas. In 2006 Lozman had the home towed a further 70 miles to a marina owned by the city of Riviera Beach (City), respondent, where he kept it docked

I also liked this discussion of what a vessel is, replete with a Disney reference:

Not every floating structure is a “vessel.” To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not “vessels,” even if they are “artificial contrivance[s]” capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so.


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Jan 15, 2013

Taleb on Bottom-Up Government and Federalism

Taleb’s discussion in Anti-Fragile of bottom-up Switzerland, rather than top-down, sounds in principles of federalism.

This great variety of people and their wallets are there, in Switzerland, for its shelter, safety, and stability. But all these refugees don’t notice the obvious: the most stable country in the world does not have a government. And it is not stable in spite of not having a government; it is stable because it does not have one.

It is not quite true that the Swiss do not have a government. What they do not have is a large central government, or what the common discourse describes as “the” government— what governs them is entirely bottom-up, municipal of sorts, regional entities called cantons, near-sovereign mini-states united in a confederation. There is plenty of volatility, with enmities between residents that stay at the level of fights over water fountains or other such uninspiring debates. This is not necessarily pleasant, since neighbors are transformed into busybodies— this is a dictatorship from the bottom, not from the top, but a dictatorship nevertheless. But this bottom-up form of dictatorship provides protection against the romanticism of utopias, since no big ideas can be generated in such an unintellectual atmosphere— it suffices to spend some time in cafés in the old section of Geneva, particularly on a Sunday afternoon, to understand that the process is highly unintellectual, devoid of any sense of the grandiose, even downright puny (there is a famous quip about how the greatest accomplishment of the Swiss was inventing the cuckoo clock while other nations produced great works— nice story except that the Swiss did not invent the cuckoo clock). But the system produces stability— boring stability— at every possible level.

A cluster of municipalities with charming provincial enmities, their own internal fights, and people out to get one another aggregates to a quite benign and stable state. Switzerland is similar to the income of the second brother, stable because of the variations and noise at the local level. Just as the income of the cab driver shows instability on a daily basis but annual stability, likewise Switzerland shows stability at the aggregate level, as the ensemble of cantons produces a solid system.

Taleb, Nassim Nicholas (2012-11-27). Antifragile: Things That Gain from Disorder (Kindle Locations 1739-1742). Random House, Inc.. Kindle Edition.

This echoes a question I asked Taleb when I (briefly) chatted with him:

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Jan 15, 2013

Johnson v. M’Intosh and Dred Scott were both cases about jurisdiction

Of course, these cases were about much, much more, and went to the heart of who was an equal person with equal rights. But, at their hearts, these were cases about jurisdiction, and whether federal Courts could entertain claims deriving from persons deemed legally inferior.

In Johnson v. M’Intosh (which I think has the same flipped comma as M’Cullough v. Maryland), Marshall found that the “Indian inhabitants” are “incapable of transferring the absolute title to others.” However, this was likely dicta. The crux of the opinion sounded in whether the Courts had jurisdiction to even consider the validity of these titles.

At the outset, Marshall stated “the question is whether this title can be recognized in the courts of the United States?”

Marshall concluded it did not. Thus, any grants of land from the “Indian inhabitants,” that conflicted with a grant of land to the Commonwealth of Virginia (and by cession, to the United States) were not cognizable in courts. Plaintiffs with such a claim “do not exhibit a title which can be sustained in the courts of the United States.” In other words, the federal courts lack the jurisdiction to consider the validity of a claim made directly from a Native American tribe to an individual. “Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.” The plaintiffs were out of luck.

Dred Scott, at its heart, was a case about diversity jurisdiction. As Taney wrote, the first question at issue was “Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties?” If Dred Scott was a citizen of the United States, he could invoke the diversity jurisdiction statute (what is now 28 U.S.C. s. 1331). If Scott was not a citizen, he could not invoke the diversity jurisdiction statute, and his claim must be dismissed.

Stated succinctly by Taney:

But in this case it does appear that the plaintiff was born a slave; and if the facts upon which he relies have not made him free, then it appears affirmatively on the record that he is not a citizen, and consequently his suit against Sandford was not a suit between citizens of different States, and the court had no authority to pass any judgment between the parties. The suit ought, in this view of it, to have been dismissed by the Circuit Court, and its judgment in favor of Sandford is erroneous, and must be reversed.

It is so bizarre to think of Dred Scott in terms of something as mundane as diversity jurisdiction.

Interestingly, Justice Campbell concurred to say Scott could sue in Missouri state court.

 Under the Constitution of the United States, his is an incapacity to sue in their courts, while, by the laws of Missouri, the operation of the verdict would be more extensive. I think it a safe conclusion to enforce the lesser disability imposed by the Constitution of the United States, and leave to the plaintiff all his rights in Missouri.

The Missouri Supreme Court opinion is grounded mostly in terms of diversity jurisdiction and choice of law issues (it is a fascinating read, though the procedural posture of this case is a mess).

Both cases that took the postion that certain people were less equal than others were premised on denying those people access to federal jurisdiction.

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Jan 15, 2013

Prop2 Class 1 – Adverse Possession Theory

Hello everyone and welcome to Property II.

Today we will cover property rights created through discovery or conquest with the case of Johnson v. M’Intosh.

During class, I will type in real time the lecture notes on this document.

In addition, I encourage each of you to post comments to our live-chat. You can use your real name or a madeup name if you prefer.

Here is a map of the property in Van Valkenburg v. Lutz.

Here is the Van Valkenburg Coat of Arms:

Van Valkenburg

Lambert of Valkenburg, Netherlands, and Annetie Jacobs of Schleswig, Holstein were married in Amsterdam in 1642 and came to North America in1644.Their first home in the New World
was in Manhattan.


In case you are interested, we will watch this video about a squatter in Dallas to open up class.

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Jan 15, 2013

Prop1 Class 1 – From Nature to Commons

Hello everyone and welcome to Property I.

Today we will cover property rights created through discovery or conquest with the case of Johnson v. M’Intosh.

During class, I will type in real time the lecture notes on this document.

In addition, I encourage each of you to post comments to our live-chat. You can use your real name or a madeup name if you prefer.

This is Chief Justice John Marshall (very nice sideburns):


This is John Locke (he resembles Mr. Burns, if he had hair). Here is a link to Chapter V of Second Treatise on Government. Chapter V focuses on property. Chapter XVI focuses on “Conquest.”


This is Hugo Grotius (has a Shakespeare thing going for him–he was Dutch):


This is Samuel Pufendorf (nice wig):


Here is a map of the land at issue in Johnson.


This is Harold Demsetz:


This is Ronald Coase. He is 100!


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Jan 15, 2013

“PACER Pricing is Illegal”

From Aaron Greenspan:

Princeton University Professor Stephen Schultze and his former graduate student, Harlan Yu, were aware of this situation, so they studied it. What they found was this:

“We examined the Courts’ budget documents from the past few years, and we discovered that the Courts claim PACER expenses of roughly $25 million per year. But in 2010, PACER users paid about $90 million in fees to access the system.”

There are two glaring problems with this picture. The first is that basic arithmetic reveals $90 million to be $65 million more than “the extent necessary” to run PACER, which makes the pricing, by definition, illegal. The second problem is that PACER apparently costs the government $25 million to run, and that was in 2010. Since then, revenues are way up.

Not surprisingly for government IT projects, PACER looks like most web sites did around 1994. It’s actually not one web site at all, but more like one hundred, spread across different court districts and circuits in the country. The district-level courts each have their own custom version because judges demand custom features, and no one can refuse their demands. The appellate-level courts have an entirely different and separate infrastructure, written in a different language. (Technically-inclined readers, it’s a Java applet. But really twelve different Java applets, depending on the circuit. No joke.) The Supreme Court, which can do whatever it wants, opts out of PACER entirely. Each level of PACER has separate login requirements, not to mention that PACER is separate from CM/ECF, an unbelievably badly-named system that actually lets you file documents, but under a separate login. What this means is that it is essentially impossible to follow a case from court to court, and if you even try, it is very, very expensive.

Any startup could design a system better than this for $10,000. (For a frame of reference, PlainSite, which is roughly as complex as PACER, has cost Think about $1,000 so far. (It hosts over 30GB of data from PACER and the Supreme Court andthe United States Patent and Trademark Office and the IRS.) But the courts, which complain of being broke, apparently prefer to spend $25 million or more per year on PACER instead of trying something new.

H/T Dan Katz

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