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A Houstonian complains that his 13-mile trip on Uber cost him $247.50 with surge pricing in effect. Yet, his own confused comments illustrate so lucidly how supply and demand work. In short, he couldn’t find a taxi after a football game finished, he was tired of walking, so he hired an Uber knowing surge pricing was in effect.

The trip went down like this: Livingston took an $18 Uber ride from Oak Forest to Rice Village and met some friends. From there, he went to the Texas Bowl to see Texas play Arkansas at NRG Stadium.

His group left before the game ended, around 11 p.m., and he and his friends planned to split a fare back to Oak Forest. It would normally be about a $45 ride, with the various fees and taxes.

I’ve been to football games at NRG (formerly Reliant) Stadium. After games, it is an absolute madhouse. I don’t mean to be critical, but going to a football game, and expecting to take a taxi home is a really, really, really foolish idea. There are no cabs. Your have options. You can drive yourself, and pay $50 for parking. Even then, it took me over an hour to drive to my apartment 2 miles away. Or, you can take the light rail (which may involve a 30 minute wait. Or you walk to an off-stadium parking lot. I’ve done all of the above to varying degrees of success. But why would anyone think it is a good idea to get a taxi? There aren’t any for good reason! The roads are a mess.

As it turns out, he couldn’t get a taxi, because there weren’t any. And because he was tired, and didn’t feel like walking anymore, he called an Uber, and what do you know, it showed up!

“We walked to the Fiesta (grocery store) parking lot and found our Uber driver,” Livingston explained in an email. “He told us it would be at a higher rate because of the surge pricing … but we were tired of walking and looking for a ride so we accepted.”

Tuesday morning, Livingston posted his details on Twitter, chiding Uber for the big up-charge and wishing he’d just waited for a cab.

One point to stress about NRG stadium, is that it is HUGE. If you leave after the game, depending where you sit, it can take maybe 20 minutes just to walk down the ramps, and then another 20 minutes to cross the gargantuan parking lot. By the time you hit Kirby Drive (the main artery adjacent to the stadium), you may be walking for about 40 minutes. (Google Maps suggests a 1 mile walk from the stadium to Fiesta). I’m sure he was tired after a long game. And when you’re tired, and don’t feel like waiting for a cab anymore, you have an option. Pay more for Uber–which the driver warned about–or keep on walking.

Supply and demand is a wonderful thing. If surge pricing wasn’t in effect, there would not be any taxis, and this sports fan would have had to keep on walking.

I am preemptively cringing from all the drunkards who knowingly accept surge pricing on New Years Eve, and then bitch about it the morning after. If you don’t like Uber for whatever reason–a fetish for occupational licensing, a dislike for supply and demand, or a fear of your driver having inadequate coverage–do not use Uber. It’s really easy.

Update: Uber provided an infographic explaining when surge pricing will be in effect:

For my Property II final, I situated the situation on the Titanic, and the iceberg crashes into Staten Island causing a situation for the Situation. There are a number of direct quotations from the movie, plus a reference to Leo and Kate’s “finger-painting” in the car. Plus, I ask whether using eminent domain to seize a ship that is underwater would be a public use (I think Justice Stevens would say yes under Kelo). As for Titanic, Mythbusters determined that the only way Rose and Jack could have both survived, was by wrapping the life jacket around the piece of wood. So much for never letting go.

—

You are a law clerk for Chief Justice Cameron of the Court of Admiralty. You are asked to prepare a memorandum of 500 words that analyzes a series of Titanic property disputes that occurred on the high seas, and on land. While at sea, the ship captain acts as a governmental official, and all of his orders are subject to the restrictions imposed on the government by the United States Constitution. The Court of Admiralty adheres to all of the federal constitutional precedents as decided the United States Supreme Court, and follows a common law approach to property as articulated in the Restatement (First) of Property. There is no zoning law at sea, but all common law torts apply. With respect to the laws respecting accretion and avulsion, the Court of Admiralty follows the precedents of the Supreme Court of Texas. The adverse possession period for all claims is two years.

—

Titanus was called the “ship of dreams.” And it was. It really was. The so-called unsinkable boat—the largest in the world—set out on its maiden voyage from Southampton, England to New York City.

The Titanus was under the control of Captain, who was responsible for making all of the orders and decision on board. He acted like the Mayor of the ship.

The decks of the Titanus were divided into separate classes, each treated as separate tracts of property at sea: Cabins on Firstacre, were owned by the wealthiest passengers. Middle-class passengers resided in cabins on Secondacre. Finally, cabins on Thirdacre were all the poorest passengers at sea could afford.

Residing in a cabin on Firstacre was Rose, the beautiful heiress, and her fiance Hockley, the wealthy industrialist. Rose was very unhappy with her situation. To cheer her up, Hockley put a gigantic 56-carat diamond on her neck, called “The Heart of the Ocean.” Rose couldn’t care less about it, quipping sarcastically, “It’s overwhelming.”

Slumming it in a cabin on Thirdacre was Jack. Jack, a drifter without a home, won a ticket onto the Titanus after playing a lucky hand in poker.

During the first evening of the voyage, Rose was leaning against the balcony, thinking about taking her own life by jumping into the ocean. Jack saw her, and talked her out of suicide. She was grateful, and invited Jack back to a dinner in the glamorous ballroom of Firstacre. In truth, it was love at first sight. “Near, far, wherever you are,” Rose sang to herself, “I believe that the heart does go on.”

Captain is furious that such a low-class vagabond was dining with the aristocrats. Captain cooks up a scheme to make it impossible for the poorest passengers to reside on Titanus.

In Order #1, the Captain orders that 75% of the cabins in Thirdacre be converted to more expensive cabins, that will be reassigned to Firstacre. The Captain reasons that there is not enough room for the upper-class passengers who pay higher fees—even though many cabins on Firstacre are vacant. He offers no compensation to those displaced.

In Order #2, the Captain orders that no more than 3 unrelated people can live together in a cabin on Thirdacre. He places no limitations on those who can live together on Firstacre and Second acre.

Jack is furious with these two orders. He shared a cabin on Thirdacre with three of his best friends, who were like family to him! As a result, he has nowhere to live on Titanus. Jack asks Captain, “Where am I supposed to live?” Captain replies, “Not my problem. Aren’t you the King of the World?”

With all this newfound space, Hockley has an idea. He proposes to expand his cabin on Firstacre, which was only one floor, to be three stories tall. The first floor would be on Thirdacre, the second floor would be on Secondacre, and the penthouse suite would be on Firstacre. It was undisputed that the extension would not impact the health, safety, or welfare of those on Titanus. However, the three-story cabin would not fit in with the appearance of the rest of the cabins, which are all only one-story tall. The Captain, appalled by the idea of having a three-story cabin, tells him to stop. Hockley refuses.

The Captain then issues Order #3, which designates any cabin that is “out of place” a nuisance that must be enjoined.

The Captain then takes a walk down to Thirdacre, and is appalled by the squalid and filthy conditions. He issues Order #4, finding that Thirdacre is “blighted,” and ordering that all of the cabins on the deck be seized from their owners through the power of eminent domain. Captain decides that he will pursue the condemnation of Thirdacre in the Admiralty Court after the ship arrives in New York.

That evening, Jack was furious. He had nowhere to live, and his cabin on Thirdacre would soon be condemned. He plucked out Rose from her cabin, and the two partied below deck, before fingerpainting in a car. Hockley caught them in flagrante delicto, and demanded that Rose return the diamond to Hockley. Rose obliges and gives him the “Heart of the Ocean.” But Hockley has a better idea. When Jack isn’t looking, Hockley puts the diamond in Jack’s coat pocket, and then accuses him of stealing the jewelry. Jack is arrested on the spot, and locked up in Captain’s chambers.

Then, the unthinkable happened. The Titanus slammed into a massive iceberg, tearing an enormous gash in the side of the boat’s hull. The unsinkable ship began to sink. Rather than honorably going down with the ship, Captain and Hoakley sneak onto a lifeboat by carrying a baby, as they sing along with the never-ending band, “For those in peril on the sea…”

Jack miraculously manages to escape, and finds Rose as the ship is sinking. Jack gives Rose his coat to keep her warm. What neither realizes is that the diamond was still in the coat pocket.

Silently, the Titanus falls into the fathoms below. Rose and Jack are left treading in the freezing water. For reasons that are totally unclear, the duo is not able to float together on a huge piece of wood adrift in the ocean. Rose stays warm on top, while Jack succumbs to hypothermia below. Rose promises Jack that she will “never let go.” Five seconds later she lets go, allowing her soul mate to descend into the depths. But Rose survives. She must have meant that her “heart does go on,” not Jack’s, whose heart promptly stopped beating.

Soon Rose is rescued, and transported to New York harbor. As she passes the Statue of Liberty, she realizes that she has the diamond in her coat pocket. She thinks about selling it, but the thought of the money reminds her of Hockley. Instead, she holds onto it.

Rose was not the only one to arrive in New York. The Titanus had struck the iceberg so hard, that it changed its course, and the glacier washed up on the shores of Staten Island. After the iceberg melted, it dumped millions of gallons of water onto the Staten Island beach, and pushed the vegetation line of Tanacre towards the waterline by about 15 feet. Situation, the owner of Tanacare, started to cheer, and exclaimed “I just got a lot more land. Now that’s a situation.”

Situation files for a permit to build a combination Gym/Tanning Salon/Laundromat on the newly formed land on Tanacre. The government denies his permit, explaining that (1) the new land beyond the new vegetation line belongs to the state, and (2) that it is a protected wetland, so he cannot build anything on it. “It’s worthless,” he screams! The Situation’s tan face turns pale with anger.

—

Despite the fact that the Titanus rests on the bottom of the ocean floor, several lawsuits have bubbled up to the surface.

1. Hockley challenges Order #3, asserting that since there is no zoning law at sea, Captain has incorrectly applied nuisance doctrine. Captain counterclaims, asserting that in the absence of zoning law, Order #3 is an appropriate application of nuisance doctrine. Please address the strengths and weaknesses of Hockley and Captain’s arguments, focusing on all relevant legal, economic, and policy grounds.

2. Jack challenges the constitutionality of Orders #1 and #2, asserting that they violated his rights under the First, Fifth, and Fourteenth Amendments. Captain counterclaims, asserting that each was a valid action taken pursuant to the police power. Please address the strengths and weaknesses of Jack and Captain’s arguments with respect to (1) Order #1 and (1) Order #2, and conclude who should prevail on each claim.

3. Even though the Titanus is underwater—both literally and financially—Captain proceeds with the condemnations pursuant to Order #4. He wants to seize by eminent domain the “blighted” (and submerged) cabins on Thirdacre. Jack challenges the condemnation, asserting that this is not a taking for “public use.” Under the Supreme Court’s precedents, how would this taking be resolved?

4. Following the denial of his permit, Situation files a suit, alleging that (1) he acquired the new land following the melting of the iceberg, and (2) the designation of his property as a wetland was a taking. How should the court resolve each of these two claims?

5. Three years after the sinking of the Titanus, Hockley files an action in replevin demanding the return of the “Heart of the Ocean” diamond from Rose. Rose claims she acquired it through adverse possession. How should the court resolve this claim?

On March 4, Obamacare will make its third trip to the Supreme Court in the case of King v. Burwell. In NFIB v. Sebelius (2012), the Supreme Court narrowly upheld the constitutionality of Obamacare’s individual mandate, but invalidated its Medicaid expansion. In Burwell v. Hobby Lobby (2014), the Court found that Obamacare’s contraception mandate violated the Religious Freedom Restoration Act. However, King v. Burwell is different from its predecessors. Rather than challenging the legality of the law Congress designed, this case challenges the legality of how President Obama has implemented the law–or more precisely, modified, delayed, and suspended it. The Cato Institute and I have filed an amicus brief in this case to alert the Court to the administrative, separation-of-powers, and rule of law violations attending the ACA’s implementation.

Through a series of memoranda, regulations, and even blog posts, the President has disregarded statutory text, ignored legislative history, and remade Obamacare in his own image. This case focuses on tax credits, one of the key pillars of the law that the administration has toppled.

To assist those who lack employer-sponsored insurance, Congress appropriated subsidies for residents of states choosing to create exchanges. Congress could not command states to establish them, so it used the withholding of subsidies as a stick to nudge states in the right direction. The statute expresses this intent in language that is clear as day. Individuals can receive these credits if they are “covered by a qualified health plan . . . enrolled in through an Exchange established by the State.” In other words, if a state fails to establish an exchange, and a resident buys a plan through the federal HealthCare.gov, he would not be eligible for the subsidies. Congress structured these growing pains for the ACA: states that do not establish exchanges would be forced to swallow a bitter pill, and their residents would be denied subsidies. The ACA’s Medicaid expansion plan, which the Supreme Court invalidated, operated with a similar carrot-and-stick approach.

These results were unacceptable to an administration intent on pain-free implementation. The ACA was not designed to expand access to health insurance at all costs. Through its oversimplification of how the ACA works as a whole, the government incorrectly assumes that the 111th Congress shared President’s Obama’s evolving vision of how to expand access to healthcare. This bird’s-eye view of the forest ignores the trees—all 535 of them. To paraphrase Inigo Montoya, Congress didn’t think “expand coverage” means what the executive thinks it means.

To obviate the uncomfortable compromises Congress reached, the executive again engaged in a lawmaking process, issuing a rule that nullifies the statute. Under the new “IRS Rule,” subsidies would be available in all states “regardless of whether the Exchange is established and operated by a State . . . or by HHS.” As documented in a detailed report by the House Oversight Committee, the executive branch engaged in a multi-agency rulemaking process based on a convoluted series of linguistic contortions without any meaningful analysis of the ACA’s history. At least one government attorney recognized that there “was no direct statutory authority to interpret [a federal] exchange as an ‘Exchange established by the State.’” But such concerns were squelched, and the rogue rule was released.

Through the IRS Rule, the executive emulates Humpty Dumpty. “When I use a word . . . it means just what I choose it to mean—neither more or less.” Alice asked: “whether you can make words mean so many different things.” Id. The Supreme Court must answer no, and vacate the IRS rule that provides subsidies in states that did not establish exchanges.

Suspension of laws through broad transitional relief, blanket enforcement waivers under the guise of prosecutorial discretion, and regulations without statutory basis are all species of executive lawmaking that violate the separation of powers.  Instead of serving as the legislature’s stewards, the administration has consistently disregarded and modified congressional instructions. Executive lawmaking—which has alas become commonplace—poses a severe threat to the separation-of-powers principles that undergird the Constitution and ultimately the rule of law itself. This problem is endemic, but not limited, to the ACA.

• Individual Mandate– Congress scheduled the individual mandate and its accompany penalty to go into effect on January 1, 2014. However, after its “minimum essential coverage” provision resulted in the cancellation of millions of policies, the President modified, delayed, and suspended the law. Through a letter, the government (1) advised insurers that they could sell non-compliant plans, (2) exempted consumers who bought these non-compliant plans from the mandate/penalty, (3) “encouraged” states to allow insurers to offer non-compliant plans, and (4) barred HHS from serving as a congressionally mandated backstop in the event that steps 1-3 happen. All this happened while the president threatened to veto a two-paragraph bill that would have lawfully accomplished all the above. These executive actions thwarted the very goals Congress articulated. The so-called “administrative fix” is subject to a challenge by the West Virginia.

 

• Employer Mandate– Congress scheduled the employer mandate and its accompanying penalty to also go into effect on January 1, 2014 for employers with more than 50 employees. However, after the mandate proved popular among businesses, it too was modified, delayed, and suspended–twice. Through a blog post, the administration initially delayed the employer mandate till 2015.  But one year wasn’t enough. A few months later, the administration bifurcated the mandate without any statutory authority. Employers with 50 to 100 full time employees would not be subject to the mandate in 2014 or 2015. In 2015, these smaller businesses would not be subject to the penalty so long as 70% of their employees were offered comprehensive coverage. In 2016, and beyond, no penalties were assessed if an employer covered 95% of its employees. Without any statutory authority, the executive completely suspended the employer mandate for 2014, partially waived it for 2015, and decided that in 2016 and beyond the mandate will never be fully implemented as Congress designed. The delay of the employer mandate is subject to a legal challenge by the U.S. House of Representatives. The President may have said more than he intended, referring to his rejiggering of the employer mandate as “making a temporary modification to the health care law” that Congress said “needed to be modified.” The President cannot modify the law.

• Obamacare for Congressional Employees– Under Obamacare, Congress required that Members and their staff purchase plans “offered through an Exchange established under” the ACA. This statute was part of Congress’s balanced design to ensure those in Washington would share the experience of Americans unable to obtain cushy federal benefits. Unsurprisingly, this provision proved unpopular among Hill staffers. Initially, the Office of Personnel Management found that it lacked the authority to offer these subsidized benefits to congressional employees. After President Obama became “personally involved,” however, OPM did a regulatory 180 and issued a rule allowing staffers to buy subsidized plans. This rule, challenged in court by Senator Ron Johnson, was flatly inconsistent with statutory text.

• Obamacare for Territories– Congress implemented the ACA in U.S. territories in a way to render their markets unstable. The territories asked the government to exempt them from these onerous provisions. However, On three separate occasions, however, the government explained to the territories that Congress crafted the provisions to “apply . . .  in the territories.” In unequivocal terms, the letter concluded that “HHS has no legal authority to exclude the territories from the guaranteed availability provision of the Affordable Care Act. However meritorious your request might be, HHS is not authorized to choose which provisions . . . might apply to the territories.” What a difference a year makes. One year later, HHS did another regulatory 180 and determined “After a “careful review of this situation and the relevant statutory language” that the provisions ““do not apply to the territories.”

President Obama’s philosophy on executive power has unfortunately become all too clear: (1) Congress passes a statute, (2) the statute is inconsistent with the president’s evolving policy preferences, so (3) the administration modifies or suspends enforcement of the law to achieve a result inconsistent with what Congress designed. This dynamic has lurked in the background of every legal challenge to the ACA, as well as the administration’s policy towards immigration (Deferred Action for Childhood Arrivals and Deferred Action for Parental Accountability), the Controlled Substance Act and related banking provisions, the National Defense Authorization Act restricting the release of detainees from Guantanamo Bay, the War Powers Act limiting the duration of “hostilities” in Libya, and others (see Gridlock and Executive Power).

In King v. Burwell, the Supreme Court should address the President’s deliberate indifference toward Congress. A ruling to uphold this behavior sets a dangerous precedent for this nascent superstatute, which will be implemented for years to come by different presidents with different views of the law. More troubling, such a precedent could be used in future to license virtually any executive action to modify, amend, or suspend any duly enacted law.If this President can unilaterally bypass statutes he does not agree with, the structural bulwarks designed by our framers crumble into mere parchment barriers.

What better way to test recording acts, covenants, and latent defects that a question about the Ghostbuters! See if you catch the Michael Jackson and Justice Scalia references.

You are a junior associate at the law firm of Gohs, Baz, & Ters LLC. Your senior partner asks you to prepare a memorandum of no more than 500 words about a case currently pending before the New York Supreme Court. This dispute involves competing claims to Redacre involving Gozer, Louis, Jeanine, and the heirs of Zul and Vigo. New York adheres to all common law property rules, as articulated in the Restatement (First) of Property. New York applies a Race Notice Recording Statute.

—

On January 1, 2014, Gozer offered to sell Redacre to Louis for $100,000. Redacre, located in an area zoned for residential purposes, was a perfect spot for Louis to live. Before he acquired Redacre, Louis took a trip to the Records Hall to investigate the history of the property.

At the Records Hall, Louis retrieved the following records from the Grantee and Grantor indexes, starting his search with “Gozer” in the Grantee index:

Grantee Index

Grantee	Grantor	Property	Description	Date of Deed	Date Recorded
Gozer	Vigo	Redacre	General Warranty deed in Fee Simple	6/1/1977	6/15/1980
Vigo	Zul	Redacre	General Warranty deed in Fee Simple	1/1/1900	7/15/1900
Zul	Zul	Greenacre	Covenant to only use Greenacre for “commercial purposes”	1/1/1900	6/25/1900
Oscar	Zul	Whiteacre	Covenant to only use Whiteacre for “commercial purposes”	1/1/1900	6/18/1900
Oscar	Zul	Whiteacre	General Warranty Deed in Fee Simple	1/1/1900	6/18/1900
Zul	Zul	Blackacre	Subdivision of Blackacre into Whiteacre, Redacre, and Greenacre	1/1/1900	1/10/1900

 

Grantor Index

Grantor	Grantee	Property	Description	Date of Deed	Date Recorded
Zul	Zul	Blackacre	Subdivision of Blackacre into Whiteacre, Redacre, and Greenacre	1/1/1900	1/10/1900
Zul	Oscar	Whiteacre	General Warranty Deed in Fee Simple	1/1/1900	6/18/1900
Zul	Oscar	Whiteacre	Covenant to only use Whiteacre for commercial purposes	1/1/1900	6/18/1900
Zul	Zul	Greenacre	Covenant to only use Greenacre for “commercial purposes”	1/1/1900	6/25/1900
Zul	Vigo	Redacre	General Warranty deed in Fee Simple	1/1/1900	7/15/1900
Vigo	Gozer	Redacre	General Warranty deed in Fee Simple	6/1/1977	6/15/1980

In order to afford Redacre, Louis secures two mortgages. The first for $75,000 from City Bank. The second for $15,000 from Ecto Bank. Louis puts up the remaining $10,000 as a down payment from his savings.

Gozer offers Louis a general warranty deed, which provides that Louis takes Redacre “subject however, to all restrictions and covenants applying to this property.” After reviewing the records, Louis asks Gozer if there are any covenants on Redacre. Gozer replies, “No.” Without purchasing title insurance, Louis acquires Redacre on 2/1/14. Louis does not record his deed.

However, soon after Louis moves onto Redacre, things get thrilling. Out of nowhere, Louis hears an ominous voice bellow: “Darkness falls across the land. The midnight hour is close at hand. Creatures crawl in search of blood. For no mere mortal can resist the evil of the thriller.”

Instantly, the ghosts of Vigo and Zul appear. Louis screams, “Ah! The ghosts of property past! How Dickensian!” Both Zul and Vigo had long since died, but their spirits have haunted Redacre for years. While some ghosts remain in this world in order to perfect souls to enter the afterlife, these ghouls had a different goal–to perfect title to property.

First, the ghost of Zul hovers in front of Louis and shows him a covenant on Redacre, dated 1/1/1900. Zul is listed as the “covenantor” and Vigo is listed as the “covenantee.” The Covenant says Redacre may only be used for “commercial purposes.” Louis asks Zul and Vigo if they ever recorded the covenant. They both shake their heads no. “There is no data, only Zul,” the ghost replies. Louis says, “How was I supposed to know about that covenant!” Zul again shakes his head.

Second, the ghost of Vigo holds up a document, dated 1/1/50, signed by Vigo. The document states that “the owner of Redacre shall never remove the ghosts that haunt this land.” Louis asks if the document was ever recorded. Vigo shakes his head no, but explains that the ghosts have lived peacefully on the land since then. Louis said he had no knowledge of such an arrangement.

Third, Vigo holds up another deed, indicating that Gozer sold Redacre to Jeanine on 7/11/77. Louis looks at the deed closely, and it indicates that the grantee was “Jeanine,” but the grantor was listed as “Goser.” The deed indicates it was recorded on 7/15/1979.

Louis, thinks to himself—”Who are you going to call?” Then it hits him: “The Ghostbusters!” The Ghostbusters work in a very peculiar line of business—capturing and storing ghosts. The quartet drive around the streets of Manhattan searching for ghosts, isolating them with special “proton packs,” capturing them in portable “traps,” and then storing the ghosts in a special “containment unit” at their headquarters. Louis shouts to the spirits that he is calling the Ghostbusters who will eliminate them. The ghost of Vigo warns him that his heir will enforce the document prohibiting the removal of ghosts. Louis ignores him.

Soon, the Ghostbusters arrive. They isolate the spirits, trap them, and store them in their special containment unit. But left behind on the floor are the three documents: (1) the 1/1/1900 covenant between Zul and Vigo, (2) the document signed by Vigo on 1/1/1950, (3) and the deed from “Goser” to Jeanine on 7/11/1917. Louis shoves all three in a drawer.

The next day, the Ghostbusters send Louis the bill. Louis, who was broke, is unable to pay it.

Louis calls Gozer, and complains that the house was haunted. Louis demands that he refund the purchase price, and pay the bill to remove the ghosts. Gozer said the ghosts were “Not my problem.”

Gozer thought back to the time he purchased Redacre, and recalled that Vigo told him not to remove the ghosts. Gozer thought Vigo was crazy, and wanted to buy the property, so he said, “Sure. I’ll leave the spirits alone. I ain’t afraid of no ghosts.” Gozer didn’t believe such urban legends.

Gozer, who kept a copy of the key to Redacre, sneaks in and finds the three documents from the ghosts. Realizing that they may benefit him, on 10/1/14, Gozer brings all three documents to the records office. As the clerk is about to record the three documents about Redacre, he remembers that a week earlier Jeanine brought in a deed about Redacre, dated 7/11/1977 and originally recorded on 7/15/1979. Jeanine had asked the clerk to change the spelling on her deed of the grantor from “Goser” to “Gozer.” The clerk makes the change, and records Jeanine’s revised deed first. A few minutes later, the clerk records the three documents brought in by Gozer. Moments later, Louis storms into the Records Office, and frantically asks the clerk to record his deed from Gozer right away. The clerk does so, as the last act of the day before closing the records office.

After Louis fails to make payments on either of his mortgages, or the bill to the Ghostbusters, City Bank moves to foreclose Redacre. City Bank gives Louis one-week notice, and advertises the sale at the records hall. Louis begs for another week, telling the bank that he will soon get a lot of money from Gozer, who sold him a haunted house. The bank was not interested in delaying the sale. At the foreclosure sale, a manager from City Bank was the only bidder present. He places the only bid of $80,000, and acquires title to Redacre. One week later, City Bank sells Redacre back to Gozer for $79,000.

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, this massive property dispute begins its legal battle from the beyond.

—

1. Louis sues Gozer for failing to disclose the fact that Redacre was haunted. Gozer counterclaims that he had no knowledge that Redacre was haunted. As a matter of policy, discuss the validity of the doctrine of caveat emptor in this case. Specifically, address the strongest arguments in favor of Louis, and the strongest arguments in favor of Gozer.

2. Louis files suit against Gozer for giving him an unmarketable title. Please address (1) whether the title was marketable, (2) what present or future covenants were violated (if any), (3) should either Louis or Gozer have been on notice about any restrictions on the land, and (4) what is the significance of the clause that provides “subject however, to all restrictions and covenants applying to this property.”
3. (a) The heir of Zul—who still owns Greenacre—files for an injunction to stop Louis from living in the house on Redacre. The heir is seeking to enforce the 1900 covenant limiting the use of Redacre to commercial purposes. Please address (1) whether Louis is bound by this covenant, (2) and if so, what are his strongest defenses to the suit.
   (b) The heir of Vigo files a suit against Louis seeking damages for removing the ghosts in violation of the 1950 document. Please address (1) how the court should treat this document, (2) whether Louis is bound by it, and (3) if so, what are his strongest defenses to the suit.

4. Jeanine files a suit to quiet title on Redacre, claiming she acquired Redacre on 7/11/77 from Gozer. Louis counters that he had no notice of this deed. Under New York’s Race Notice recording statute, who will prevail?

 

5. Ecto Bank files a suit against Louis for a deficiency judgment. Louis counterclaims that the foreclosure sale by City Bank was not valid, and seeks to set aside the foreclosure sale. Address (1) the strongest arguments in favor of Ecto Bank for receiving a deficiency judgment, (2) the strongest arguments in favor of City Bank that the sale was valid, and (3) the strongest argument in favor of Louis that the foreclosure sale should be set aside.

In Judge Howell’s decision for D.D.C. rejecting Sheriff Joe Arpaio’s constitutional challenge to DAPA (see my standing post here), she rejects the claim that there is no individualized determination with respect to DACA. To support this conclusion, she cites USCIS statistics which show that 36,860 requests out of 719,746 were rejected. This amounts to about a 5% rejection rate.

Statistics provided by the defendants reflect that such case-by-case review is in operation. As of December 5, 2014, 36,860 requests for deferred action under DACA were denied and another 42,632 applicants were rejected as not eligible. Defs.’ Mem., Ex. 22 (USCIS, Current Statistics: Deferred Action for Childhood Arrivals: Pending, Receipts, Rejected, Approvals, and Denials (2014)), ECF No. 13-22.

The DOJ elaborates on these numbers in FN. 23 on p. 29 of its brief.

Plaintiff baselessly dismisses this individualized determination as a “fiction.” See, e.g., Pl.’s Mot. at 4. But, as of December 5, 2014, of the 719,746 individuals who made initial requests for deferred action under DACA, 42,632 applications were rejected, 630,032 were approved, and 36,860 were denied. See DHS, Current Statistics: Deferred Action for Childhood Arrivals: Pending, Receipts, Rejected, Approvals, and Denials (2014) (attached as Exhibit 22). Further, those who request DACA likely are a self-selecting group. In any event, agencies may establish frameworks for the exercise of prosecutorial discretion.

Here is the chart from exhibit 22.

 

One question I am researching is what to make of this strikingly low denial rate. (I am putting aside for the moment the rejected rate is for people who do not fill out the paperwork correctly, and are rejected for clerical reasons). I have a few preliminary thoughts, as I am still thinking this issue through.

First, the DAPA policy speaks in terms of discretion. As Judge Howell explained:

In addition, although the challenged deferred action programs represent a large class- based program, such breadth does not push the programs over the line from the faithful execution of the law to the unconstitutional rewriting of the law for the following reason: The programs still retain provisions for meaningful case-by-case review.13 See 2014 Guidance Memorandum at 4 (requiring that a DAPA applicant present “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate”). This case-by-case decisionmaking reinforces the conclusion that the challenged programs amount only to the valid exercise of prosecutorial discretion and reflect the reality that “an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985).

What are these “other factors” to deem a person “inappropriate”? We don’t know. The OLC memo acknowledged that the DAPA policy is silent on this front. Presumably, the discretion is vested in individual agents. But, as we learned from DACA, agents were encouraged to process as many applications as possible. (See my National Review piece on point).

Second, I think we have to keep in mind that it is the President, and not Congress who determined the threshold eligibility for DAPA. When only 5% of applicants are being denied, we are talking about 5% of those who do not meet the President’s self-imposed criteria for executive discretion. I am working on an article now that looks at grant rates for discretionary action (for example, cancellation of removal). The grant rates are very, very, very low, as Congress imposes a number of statutory “stumbling blocks,” such as proving an extreme hardship.

Third, why are even 5% denied. What factors are being presented to disqualify someone, if they meet all the other criteria. I’ve asked this question to a few immigration law experts, and I haven’t received an answer.

Stay tuned for more on this.