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I wrote four exam questions for my two sections Property II. Here is the third question. Feel free to take a stab at the answer in the comments.

Instructions: You are a law clerk and your judge asks you to prepare a bench memo of no more than 500 words based on the following set of facts. You are in a jurisdiction that adopts the rules of the Restatement (First) of Property. The jurisdiction has a “Race-Notice” recording statute. The period required for adverse possession is ten years with color of title, and twenty years without color of title. Here are all the facts. If you draw any inferences beyond these facts, please explain why you drew those inferences.

Once known for sunny days that swept the clouds away, Sesame Street has fallen on hard times. Under the iron-fisted rule of Mayor Mutt, the air is no longer sweet, no matter how you get there.  Today’s problems are brought to you by the letter A, for austerity, and the number 99.

Abby Cadabby–who accepted some wise advice, and went to law school to study property law, instead of becoming a princess–was the leading developer of land on Sesame Street. Abby lived on Oneacre, and subdivided it into four equal subdivisions: Blackacre, Whiteacre, Greenacre, and Yellowacre. Abby, who you may say is a schemer, inserted covenants on the deeds of each of the four plots of land at the time of the subdivision.

 

• Blackacre’s Deed:  Blackacre was limited to industrial use only. The owner of Blackacre was allowed to dump waste onto Greenacre. The owner of Blackacre was required to allow the owner of Whiteacre entry to Blackacre at any time for any reason.
• Whiteacre’s Deed: Whiteacre was limited to single-family residential use only. The owner of Whiteacre was required to allow Abby to cross Whiteacre to access the main road.
• Greenacre’s Deed: Greenacre could only be used for a nursery school. The owner of Greenacre was required to allow the owner of Yellowacre access to Geenacre at any time for any reasons.
• Yellowacre’s Deed: Yellowacre was limited to a multi-family residential use only.

All of these deeds were recorded. After the subdivisions were completed, Abby engaged in a series of transactions.

First, Abby sold Blackacre to Big Bird in fee simple. Big Bird opened a Cookie Factory. Second, Abby sold Whiteacre to Cookie Monster in fee simple. Cookie moved in with his three children. Third, Abby sold Greenacre to Dexter, who opened up a nursery school. Fourth, Abby sold Yellowacre to Elmo, who moved into the land alone. None of these quitclaim deed were ever recorded.

However, some problems soon arose. Big Bird’s bird-brained scheme to run a cookie factory on Blackacre never took off.  Mayor Mutt, and his cronies at Brain Capital, flipped the bird onto the street after buying out and restructuring his failing cookie factory. Without a roost to call home, Big Bird fled the coop, and high-tailed it to Poppy Street. Brain sold Blackacre to Fozzy.

Dexter was arrested for a string of gruesome murder. In order to pay his legal fees, he sold Geenacre to Grover.

Elmo pleaded guilty to molesting children, and registered as a sex offender. One of the conditions of the registry was that Elmo was not allowed to own property within 100 feet of a school, playground, library, or any other place children may frequent.

After acquiring Blackacre from Brain Capital, Fozzy ramped up production at the cookie factory, but also quadrupled the amount of waste being dumped onto Greenacre. Fozzy also put up a fence to prevent Cookie Monster’s children from entering Blackacre–they helped themselves to way too many cookies (nom nom nom).

Abby, who no longer had any interest in crossing Whiteacre, sold Henson her interest in Whiteacre. Cookie Monster, who did not care much for Henson, did not allow him to cross Whiteacre, and insisted that only Abby could cross the land.

Grover, who now owned Greenacre, was appalled at the amount of waste being dumped, and worried about the wellbeing of the children. Grover blocked Blackacre’s access to dump on Greeancre. Likewise, when Grover learned of Elmo’s sex-offender status, he barred Elmo from Greenacre.

Mayor Mutt, intent on wreaking more havoc in this quaint community enacted an ordinance that banned the baking of cookies in city limits, citing the noxious odors created during the process. Fozzy complained that the smell of baking cookies is in fact delicious, and Mayor Mutt was just trying to shut down the factory so his cronies at Brain could profit by outsourcing cookie production to Poppie Street.

Elmo the sex offender realized he could no longer own Yellowacre–which was very close to the nursery school on Greenacre. The real estate market on Sesame Street was dwindling, and no one would buy it from him. Tickled by how to resolve his dilemma, Elmo simply abandoned Yellowacre and moved away to Poppy Street.

Then, to make things more complicated, Kermit hops onto the scene, and croaks that Abby never had title to Oneacre, and thus the subdivisions were void. Kermit then recorded the deed transferring Oneacre to him–it was 20 years old at this point!

First, Kermit asserts that he had owned Oneacre for over 20 years. Second, he claimed that he negotiated with Abby to sell Onacre eleven years ago, and even reached a price, but never actually delivered the deed to Abby. Nonetheless, Abby entered the land and continuously lived there for eleven years. Third, Kermit stated that Oneacre had a covenant restricting the use of the land to only agricultural purposes.

In response, Abby asserts that she in fact did pay Kermit for Oneacre, but never actually received the deed. Alternatively, Abby claims that she openly and notoriously stayed on Oneacre for eleven years and obtained Oneacre through adverse possession–thus, her subdivisions were valid.

Then, litigation commenced. The lawyers came and started to play, but everything was not A-OK. It is in the courthouse where we meet. That’s the way it goes on Sesame Street.

• First, Kermit filed suit against the owners of Blackacre (Fozzy), Whiteacre (Cookie Monster), Greenacre (Grover), and Yellowacre (Elmo, who abandoned the land) with three causes of action: first, to quiet title on the four plots of land; second, to enforce the covenant restricting the use of the land to agricultural use on each of the four plots of land; and third, to oust Grover from Greenacre (Kermit quipped, “it isn’t easy being on Greenacre”).
• Second, Fozzy (owner of Blackacre) sued Mayor Mutt for enforcing the ordinance that prevented him from baking cookies, which Fozzy asserted resulted in a complete diminution in the value of Blackacre.
• Third, Cookie Monster (owner of Whiteacre) sued Fozzy to enforce the covenant granting Cookie Monster and his family entry onto Blackacre. Cookie Monster also sued to enjoin Henson from trespassing on Whiteacre, claiming that only Abby could benefit from the covenant.
• Fourth, Grover (owner of Greenacre) sued Fozzy (owner of Blackacre) for a nuisance for dumping waste on his land.
• Fifth, Elmo sued Grover for denying him access to Greenacre.

How should the court resolve each of these issues.

From the President’s remarks tonight at the Newtown memorial service:

We can’t tolerate this anymore. These tragedies must end. And to end them, we must change. We will be told that the causes of such violence are complex, and that is true. No single law — no set of laws can eliminate evil from the world, or prevent every senseless act of violence in our society.

But that can’t be an excuse for inaction. Surely, we can do better than this. If there is even one step we can take to save another child, or another parent, or another town, from the grief that has visited Tucson, and Aurora, and Oak Creek, and Newtown, and communities from Columbine to Blacksburg before that — then surely we have an obligation to try.

In the coming weeks, I will use whatever power this office holds to engage my fellow citizens — from law enforcement to mental health professionals to parents and educators — in an effort aimed at preventing more tragedies like this. Because what choice do we have? We can’t accept events like this as routine. Are we really prepared to say that we’re powerless in the face of such carnage, that the politics are too hard? Are we prepared to say that such violence visited on our children year after year after year is somehow the price of our freedom?

My thoughts on the price, and related social costs of freedom are discussed in my 2011 article in the Harvard Journal of Law & Public Policy, The Constitutionality of Social Cost.

Here is the abstract:

To understand the future of the Second Amendment, one must ask, “Why is this right different from all other rights?” In District of Columbia v. Heller and McDonald v. City of Chicago, the majority and dissenting opinions differed wildly over the historical pedigree of the individual right to keep and bear arms, but they agreed that the governmental interest in reducing the risk of danger from firearms should play some role in the constitutional calculus, and that the Second Amendment should be treated differently from other constitutional rights.

At first blush, this may make sense. Guns can be dangerous if misused. As Justice Breyer noted in McDonald, “[T]he carrying of arms . . . often puts others’ lives at risk.” Because a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” when construing the Second Amendment, it would seem straightforward that courts take into consideration the potential social cost, or presumed negative externalities, of private ownership of firearms. So obvious, in fact, that courts and pundits perfunctorily gloss over the constitutionality of limiting liberty in order to minimize social costs. This judicial oversight is glaring, and it has contributed in no small part to the currently disjointed state of Second Amendment jurisprudence.

Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities. The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate to advocate for certain types of violence . The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial, permitting crimes to go unpunished. Likewise, a violation of a person’s Miranda rights renders certain confessions — even an uncoerced inculpatory confession — inadmissible.

Procedural rights during the criminal trial — including the right to grand jury indictment, the right against self-incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury — all make the prosecution of culpable defendants significantly harder. The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. The right to non-excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial. The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person — however dangerous — cannot be indefinitely without proper procedures. Liberty’s harm to society takes many forms — not just from the exercise of the right to keep and bear arms.

These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” this concern is not constitutionally sacrosanct.

This Article explores the constitutional dimensions of the social cost of liberty. Although some have suggested that courts should look to the First Amendment for interpretational guidance for the Second Amendment, I propose a more holistic approach: look to the entire Bill of Rights. Liberty interests certainly vary by type, but the Court’s precedents balancing those interests against society’s need for safety and security coalesce into different schools. By reconceptualizing the right to keep and bear arms through the lens of social cost, in light of over a century of Supreme Court jurisprudence, one can see that despite its dangerous potential, the Second Amendment is not so different from all other rights; accordingly, it should not be treated differently

This Article proceeds in five parts. Part I explores a Coasean view of freedom that balances liberties and externalities, and introduces the concept of the constitutionality of social cost. Part II provides an overview of the competing views of social cost in Heller and McDonald, focusing on Justice Breyer’s balancing test and Justice Scalia’s pragmatic dicta. Part III considers the loneliness of the Second Amendment in the Bill of Rights and confronts many of the arguments of the dissenting Justices that the majority did not refute. Part IV views the Second Amendment through the lens of the constitutionality of social cost and considers the “wide variety of constitutional contexts [in which the Court] found . . . public-safety concerns sufficiently forceful to justify restrictions on individual liberties.”

Building on Parts I–IV, Part V provides a roadmap for the development of Second Amendment jurisprudence going forward. Second Amendment challenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demonstrated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appropriate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.

Also related is an unpublished follow-up article I wrote, titled Judging the Constitutionality of Social Cost. Here is the abstract:

The tiers of judicial scrutiny represent the Supreme Court’s attempts to balance three important concerns–individual liberty, collective safety, and social cost. The relationship between liberty and safety has been ably explored; however, considerations of social cost — a factor that has been integral in the Supreme Court’s balancing of liberty and security — has been neglected. Understanding the interaction between liberty, safety, and social costs, reveals insight into how the Supreme Court has fashioned the tiers of scrutiny, and judicial review more broadly.

The Supreme Court has recognized two types of social cost, that I have labeled liberty costs and security costs. First, liberty costs, refer to the risk of negative externalities to society as a whole that can result from individuals exercising liberty. Second, safety costs, refer to the risk of negative externalities to individual liberty that can result from the state providing for collective safety.

The Supreme Court employs the tiers of scrutiny when the liberty interests of an individual (or group of individuals) are weighed against the interests of the state to provide for collective safety (defined broadly as the police powers — health, safety, and morals). Scrutiny is effectively a question of burdens — which party’s interests receive judicial deference, and which party’s interests are met with judicial skepticism. Or, to state it differently, which party bears the burden of justifying its high social costs. These relationships are plotted on a graph I labeled the Social Cost Frontier. The frontier depicts judicial review and the relationship between the tiers of scrutiny and social cost, with respect to Miranda, the exclusionary rule, the overbreadth doctrine, unprotected speech, and commercial speech.

Social cost further explains how the court shifts between the counter-majoritarian difficulty and representation reinforcement. Which branch of government is in the better position to assess social costs — the legislature, or the courts? Or more precisely, should the court defer to the state’s assessment of social cost, or defer to the individual’s assessment, or engage in an independent inquiry. Ultimately, this determination is largely informed by a given Justice’s view of liberty and safety costs with respect to Footnote Four of United States v. Carolene Products, and Professor John Hart Ely’s “representation reinforcement” theory of the Constitution. Even with the judiciary’s assumption of this role, certain cognitive and confirmation biases dictate that, in the words of Frédéric Bastiat, there are seen, and unseen costs by the Justices. The costs that are unseen, are often the costs that the Justice is inclined to disregard. How a Justice choose to see, and not see, certain social costs — rather than abstract terms like tiers of scrutiny, or equal protection, or due process — explains how some of the most important constitutional issues of our time can be so divisive.

The Supreme Court’s reliance on social cost, without ever fully defining it, illustrates the normative appeal of this rubric. No one likes costs, they’re bad. Identifying costs, and using them as a rationale for a judicial decision is quite attract. Yet, by failing to define these costs — and what considerations go into calculating them — the Court, and the academy, has unfortunately elided over an important jurisprudential step in numerous cases involving the Constitution. Further, by assuming the role of assessing social cost, and either grating the costs deference or skepticism, the Court has succeeded at its institutional aim at minimizing social cost in the absence of judicial intervention. For when either cost grows too large, the role — and need — of courts disappears. In their efforts to keep this balance in check, courts aim to maintain their legitimacy, and indeed relatedly, their need for existence. If courts step too far in either direction, their legitimacy, and place in society decreases

 

The 4th Circuit, joining the 5th, 8th, and 10th Circuits, holds that “illegal aliens” are not protected by the 2nd Amendment.

The court had an interesting discussion as to who “the people” are for purposes of the Second Amendment:

The Supreme Court’s precedent is therefore not clear on whether “the people” includes illegal aliens.

Here, we need not limit our analysis to the scope of the term “the people” and thereby become enmeshed in the question of whether “the people” includes illegal aliens or whether the term has the same scope in each of its constitutional uses.*

*Were we to limit our analysis to the scope of the term “the people,” we would also have to recognize that groups like women, Native Americans, and blacks may not have been part of the political community at the time of the founding but are today within the class that we refer to as “the people.” In this same vein, it was understood that Catholics could be disarmed in England prior to the founding, but again today they are within the class that we refer to as “the people.”

In other words, what a person was in 1787 is irrelevant. Instead, we look to how modern society views a person, which most certainly includes all of those groups.

The court finds that Heller’s holding was limited to law-abiding citizens:

Even though the Heller Court stressed that the core right of the Second Amendment protects law-abiding members of the political community, it did not face a law prohibiting firearms possession by a particular class of persons. Nonetheless, we can employ the historical analysis it prescribed to apply its observations to this case, see Chester, 628 F.3d at 680, and thus to reach the conclusion that we do—that illegal aliens do not belong to the class of law-abiding members of the political community to whom the Second Amendment gives protection.

This issue came up in McDonald v. Chicago. The privileges or immunities clause only applies to citizens. If a right was extended to the states through the Privileges or Immunities Clause, it would only apply to citizens. This was a common argument against using P or I. Though, with the 4th Circuit’s construction, it would be a moot point as only citizens would be eligible for the right to keep and bear arms, in any case.

In fact, Dale Ho of the NAACPLDF argued that the Court dodged a bullet in McDonald by not using P or I because it avoided the thorny issue of limiting rights to citizens.

If advocates of progressive originalism overestimate the likely benefits of revitalizing the Privileges or Immunities Clause, they also underesti- mate the possible pitfalls of charting such a new constitutional course. Reliance on the Privileges or Immunities Clause as the exclusive source of substantive rights protec- tions in the Fourteenth Amendment could reduce constitutional protections for non- citizens, who may be excluded from the provision’s scope, and may also call into question the range of rights currently protected under the Fourteenth Amendment

I wonder how immigrant-rights groups feel about this holding.

Update: David Cohen reminded me of his article about McDonald’s Paradox that addresses just that issue (see here, here, and here).

GPS data was tossed out by SCOTUS. Now, he’ll be convicted based on cell-site data. The dude can’t win!

The opinion is here:

On January 23, 2012, the Supreme Court vacated Antoine Jones’ conviction under 21 U.S.C. § 846 for Conspiracy to Distribute and Possess with Intent to Distribute Five Kilograms or more of Cocaine and Fifty Grams or more of Cocaine Base. United States v. Jones, 132 S. Ct. 945 (2012). In that opinion, the Supreme Court unanimously ruled that the government’s installation of a GPS device on Jones’ car and use of the device to track the car’s movement for a period of twenty-eight days constituted a Fourth Amendment search. Relying on that decision, as well as the D.C. Circuit’s opinion in this case in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d on other grounds sub nom. United States v. Jones, 132 S. Ct. 945 (2012), defendant now moves to suppress cell-site data covering a four-month period that was obtained pursuant to three orders issued by United States Magistrate Judges of this Court in June, August, and September of 2005. (Defendant’s Motion to Suppress Cell Site Data, Mar. 29, 2012 [ECF No. 606] (“Mot.”).)

Defendant, with the support of an amici curiae brief filed by Electronic Frontier Foundation and Center for Democracy & Technology (Brief Amici Curiae in Support of Defendant Jones’ Motion to Suppress, Aug. 13, 2012 [ECF No. 644] (“Amicus Br.”)), argues that under the Fourth Amendment, the government was required to obtain a warrant based on probable cause prior to tracking Jones’ location based on cell-site data provided by a third party provider for a four-month period of time. The Court, however, need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies.

H/T Mike Scarcella