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Hi everyone! I have submitted grades for both sections. I am very proud of all of you. This was my first semester teaching Property, and I did not know what to expect with the exams. On the whole, you nailed it. I put together really difficult fact patterns that were quite open-ended, with the intent that there would be many, many, many correct answers. I thought I had considered all the possible answers, but several of you came up with things I didn’t even think of. Well done.

Additionally, many of you incorporated various concepts we talked about in class that were not in the textbook (such as the Coase Theorem, various constitutional concepts, etc.). This made me beam with pride.

Finally, despite all of your concerns, almost every single one of you managed to completely answer the question within the word limit. In other words, the differences between the A, B, and C was not due to an inability to write within the word limits. You also got very creative with abbreviations (APed was my favorite–adversely possessed) and really-long-hyphenates-to-avoid-adding-another-word.

The Exams

Section B

You can download the exam for Section B here: Property II Fall 2012 Section B Exam

I provide for your consideration the A+ exam here: SectionB-BestPaper

Section D

For this exam, I must confess error. In paragraph 5, I wrote:

Back in 1990, Carl and Domer, who were at the time the owners of Dryacre and Wetacre, respectively, reached a set of covenants.

It was clear that Carl owned Dryacre and Domer owned Wetacre.

Later in paragraph 7, I wrote

 Second, Aggie discovered that when Domer acquired Dryacre from Edna in 1985, Edna inserted a covenant into the deed so that the land could only be used for “agricultural purposes.”

This was an error. It should have been “when Carl acquired Dryacre.”

To make up for that mistake, I gave everyone equal credit for that issue. It was one of many issues, and barely made a dent in the scoring.

Here is the corrected exam:  PropertyIIExam-Blackman-SectionD-Correct

I also provide for your consideration the A+ paper: SectionD-BestPaper

The Grades

First year classes, including Property II, are subject to the school’s mandatory grading curve (see p. 84 of the handbook):

grades assigned in classes of 40 or more students shall conform to a mandatory grading distribution. That distribution provides for a required 9-16 percent for A+/A, a required 16-30 percent for A+/A/A-; a required 16-30 percent for C+/C/C-/D+/D/F; and a required 9-16 percent for C/C-/D+/D/F. The class average shall be 2.85-3.15.

I think you will find that in each section, the scores approached the upper limits of the grades allowed above an A-, and approached the lower limits of grades below C+. In addition, the class average was very close to the upper limit (3.15). In other words, there were more As than Cs, and the class averages were quite high.

Here are the full breakdowns for each section.

Section B

• Average: 3.121
• A and above -13.0%
• A- and above – 26.1%
• C+ and below: 17.4%
• C and below: 10.1%

 

Section D

• Average: 3.143
• A and above – 14.3%
• A- and above – 28.6%
• C+ and below: 19.0%
• C and below: 11.9%

Thank you all for a great semester! BTW, if you wrote either of the A+ papers, please email me, if you’d like. Thanks!

 

 

Jack Balkin offers a counterfactual history of the Supreme Court if Bork was nominated and confirmed in 1986 to replace Justice Rehnquist, and Scalia was nominated and confirmed in 1987 to replace Powell. Balkin speculates that without the brutal Borking that was still fresh, in 1990 Bush 41, would not have tried to play it safe with Souter, and instead nominated “Kenn Starr, or Edith Jones, or even Clarence Thomas a year early.” What would a Court with a “five person majority consisting of Rehnquist, Bork, Scalia, Thomas, and Jones” have accomplished?

What conservatives did not get, however, was five movement conservatives on the Court. If they had, we might be speaking of the post-1987 period the way we speak of the New Deal Revolution or the glory days of the Warren Court as a period of significant constitutional transformation. As it is, the Rehnquist and Roberts Courts have moved doctrine considerably to the right in a number of areas. One can only imagine what a Court staffed with Bork, Scalia and Thomas might have done.

I partly agree with Jack.

Jack is most certainly right that a court stocked with Bork and Jones, along with Rehnquist, Scalia, and Thomas, would not have hesitated to reverse Roe. Also, Bowers would probably still be good law. And Guantanamo would still be open for business–oh wait, never mind.

Indeed, Bork was inimical to individual liberty and he likely would have voted to roll back many judicially created rights, and halted the creation of others. Inkblots and all.

But that is only half of the judicial picture. Bork was a very conservative Burkean (Borkean?) jurist who believed in deferring to the democratic process at all costs.

How would Bork have fared with striking down laws? The Federalism Revolution of the Rehnquist Court was premised on the Court striking down democratically-enacted pieces of legislation based on heretofore unknown inkblots in the Constitution. Would Bork have been as eager as Justice Kennedy to strike down the Gun Free School Zone Act or VAWA? What about adopting an atextual reading of the 11th Amendment in Seminole Tribe or Alden v. Maine? Not even Scalia or Kenned were willing to take a hit on the commerce clause in Raich.

What about some of the other “conservative activist cases?”

Bork had a very cabined and cramped view of free speech? Could you see Justice Bork striking down BCRA in Citizens United?

Would Bork have swallowed his pride, like Scalia, by incorporating the Second Amendment through substantive due process in McDonald?

Would Bork have adopted the tenuous reasoning in Bush v. Gore, or would he have put politics aside?

And what about Obamacare? Would Bork’s vote have been much different from that of John Roberts? And what if Bush 43 appointed Judge Wilkinson (a close match with Bork) instead of Alito? Would the 5th vote to strike down Obamacare have existed?

Perhaps Bork’s strong conservativism would have pushed Justice O’Connor further to the left, as Scalia often did, and weakened her support for federalism altogether. And I can imagine personality conflits with Justice Jones emerging–though, the thought of her telling Justice Breyer to shut up (especially during one of his winding hypotheticals) would be very entertaining.

Of course, Balkin’s hypothesis assumes that even if Ted Kennedy didn’t Bork Bork in 1987, he wouldn’t have Borked Edith Jones or Clarence Thomas in 1990 when Bill Freakin’ Brennan retired! What, with three years of four years of Bork on the bench at that time, I doubt the Judiciary Committee, chaired by Joe Biden, would have soft-peddled the nomination. Look at what happened with the Thomas nomination in 1991.

More from Judge McConnell here.

Counterfactuals are always fun.

An ominous 1987 advertisement from People for the American Way, opposing Bork, narrated by none other than Gregory Peck.

I launched this blog on September 27, 2009, mostly as something to keep me connected while in Johnstown and maybe to help my academic career. Three years later, I am still in disbelief over how much I’ve written, and flattered that people continue to read it.

I hit 1,500 posts on 1/19/2011 and 2,000 posts on 5/10/2011. During my hiatus from August 2011 to August 2012, I hit 3,000 posts on 11/14/2011, 3,500 posts on 2/1/2012, 4,000 posts on 4/13/2012, and 4,500 posts on 7/27/2012. Today, I hit 5,000 posts.

Thank you for your readership!

My eagle-eyed friend Mike Sacks caught this gem:

[tweet https://twitter.com/MikeSacksHP/status/281456614698004481]

Here is the full passage from RBG:

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar­ ian state as a credible reason to deny Congress the author­ ity ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”). But see, e.g., post, at 3 (joint opin­ ion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (assert­ ing, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription”).

In many respects, Chief Justice Roberts’s opinion is a fitting tribute to Judge Bork.