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Greg Stohr of Bloomberg News interviewed me about the D.C. Circuit’s pending decision concerning rehearing en banc in Halbig. I noted that the mindset of Harry Reid, Emily Bazelon, and others, that the court will vacate the panel decision just because there are more Obama appointees on the court presents a “dangerous mindset.”

Senate Majority Leader Harry Reid, a Nevada Democrat, last month fueled the perception that the Democratic appointees would tip the balance. Asked whether the D.C. Circuit panel’s decision vindicated his decision to change the voting rules, he replied, “if you look at simple math, it sure does.”

Those comments, and the assumption that the D.C. Circuit will divide along partisan lines to uphold the IRS rule, have drawn fire from critics of the health-care law.

“It’s a really dangerous mindset,” said Josh Blackman, a professor at South Texas College of Law in Houston who wrote a book on the first health-care case. He called the D.C. Circuit a “very professional court” with a tradition of granting full-court review sparingly.

A decision by the full appeals court to reverse the panel would eliminate the circuit split, making a Supreme Court grant of review less of a necessity. Although the justices could still get involved, they might be reluctant to outlaw subsidies being used by millions of Americans.

Two years ago, four justices said they would have thrown out the entire law. Chief Justice John Roberts joined the court’s four Democratic appointees in voting to largely uphold the measure.

The S.G. Brief in Opposition to Cert is due on Wednesday, September 3. Stay tuned.

 

The Times had a fascinating piece on trying to establish the boundary between North Carolina and South Carolina that touches on so many things I find interesting–colonial history, property lines, and the original jurisdiction of the Supreme Court! In short, to avoid the bruising litigation fees of litigating a boundary dispute to the Supreme Court the Carolinas decided to resolve the disputes themselves, based on surveys ordered from the time of King George III. So much to love about this!

First, the article offers a fascinating history of why the border is so disputed–lazy colonial surveyors:

When the two Carolinas were created as separate British colonies, they were supposed to be split by two simple straight lines: one running northwest from the Atlantic Coast to the 35th Parallel, the other following the 35th due west to the “South Seas.” But making the territory resemble the map wasn’t so easy.

The original 1735 survey party, for example, had members who sometimes didn’t show up, sometimes didn’t get paid and often gave up while trudging through the ghastly swamps and wilderness they encountered on their way up from the coast. That may explain why they failed to reach their target, the 35th Parallel, after two years of effort: Instead, they drove a stake into the ground 12 miles too far to the south, and went home.

King George III (yes that King George) tried to fix it, but it also didn’t work.

Another party, sent out in 1764 to continue the survey, headed west from that same erroneous stake, despite explicit orders from King George III to verify that the first surveyors had indeed reached the 35th Parallel. By the time they detected their error, 64 miles later, they had shaved 422,000 acres off what was supposed to be South Carolina. Subsequent efforts to compensate South Carolina by continuing the westward line slightly north of the 35th Parallel were similarly jinxed, this time by a compass-deflecting magnetic anomaly west of present-day Charlotte, N.C., that skewed the boundary slightly northwest, carving thousands of acres out of what was supposed to be North Carolina.

Second, the article explores some other costly state-v-state litigation, including Georgia v. Tennessee (which didn’t make it to the Court), Georgia v. South Carolina (boundary along Savannah River), and New Jersey v. New York (dispute over Ellis Island).

Georgia and Tennessee, to cite the loudest current example, are trading insults and ultimatums over a strip of land barely a mile wide. In 1990 Georgia marched South Carolina to the Supreme Court over a handful of islands in the Savannah River (South Carolina prevailed). New Jersey did the same to New York a few years later over landfill around Ellis Island. When New Jersey won, Rudolph W. Giuliani, then the mayor of New York City, quipped, “It must have been a fix.” …

The default response these days to situations like this is usually conflict, which can be costly. The legal bill for South Carolina’s defense against Georgia, for example, topped $10 million, and so traumatized South Carolina officials that they looked for a peaceful way to find the missing border with North Carolina.

To avoid that problem, North and South Carolina decided to work it out amicably.

The Carolinas have shown that cooperation is cheaper than litigation. Sidney C. Miller, the boundary commission’s co-chairman from South Carolina, said 20 years of boundary resurveying had cost his state just a fraction of the bills from the 1990 Georgia lawsuit, not to mention lower levels of stress and vitriol.

And they had to use sophisticated technology to match up the metes and bounds of surveys from days of yesteryear.

In 1993 the two states’ mapping agencies pledged to cooperate, harnessing geospatial technology to old-fashioned detective work. In one border segment near Charlotte, they unearthed colonial-era property maps that had used the boundary trees as tract corners and overlaid Geographic Information System data — mapping technology accurate within inches — to calculate where the trees once stood.

In another segment, researchers found a stone boundary monument that had been set as part of a 1928 resurvey, except it now stood near a tee on a golf course. Officials at the course had moved it years before so duffers could brag about their two-state tee shot. Using the original 1928 maps, advanced mathematics and some informed guesswork, the joint survey teams navigated to the exact spot where the monument had been uprooted, and even found its broken-off base.

By 2013, the entire 334-mile boundary had been relocated and re-marked.

Fascinating.

Today we will finish the rule of capture, with a discussion on oil and gas, and other “fugitives.” Then, we move onto acquisiton by creation.

The lecture notes are here. The livechat is here.

Oil & Gas

And, “I drink your milkshake.”

[youtube http://www.youtube.com/watch?v=RKQ3LXHKB34]

Here are some pics illustrating slant drilling. One of which may be from a cartoon.

You can learn more about the Manziel family and oil here.

 

International News Service v. Associated Press

The International News Service was owned by the famous publisher and Yellow Journalist William Randolph Hearst.

The majority opinion was written by Justice Mahlon Pitney. He was Christopher Reeve’s (Superman!) great-grandfather. He was a pretty non-noteworthy justice.

The author of the dissent, Justice Brandeis, was a big deal.

Cheney Brothers v. Doris Silk Corp

This opinion was authored by 2nd Circuit Judge Learned Hand, the greatest judge never to sit on the Supreme Court. Yes that was his name, Learned Hand. Actually his full name is Billings Learned Hand, but in college he started going by Learned. Learned’s cousin, Augustus, was also on the 2nd Circuit Court of Appeals.

Here is an awesome video of Hand signing.

[youtube http://www.youtube.com/watch?v=iKN_W35P8jA]

Today we will continue our discussion of the contract of sales with a focus on duty to disclose defects and the merger doctrine. The lecture notes are here. The livechat is here.

Here is the Texas form listing all the required disclosures.

The New York Times and Atlas Obscura have good articles about the Haunted House.

The Times writes:

The phones have been ringing at real-estate offices in Rockland County. A patient in a psychiatric hospital called. So did a para-psychologist from Florida. And so did the Amazing Kreskin, all the way from his hotel room in Atlantic City.

That turreted turn-of-the-century Victorian house in Nyack is back on the market – the one that the owner says has not one, not two, but three ghosts. The one that was the subject of a court ruling last week.

There was nothing creepy about Justice Edward H. Lehner’s decision in State Supreme Court in Manhattan. He found that a would-be buyer, Jeffrey M. Stambovsky, could not back out of a $650,000 contract on the three-story clapboard house without losing his $32,500 down payment on it.

Mr. Stambovsky, who acknowledges that the contract expired after he skipped a scheduled closing last fall, had argued that no one warned him about any preternatural residents who, presumably, would not comply with ordinary eviction orders.

…

As for whether he will see the ghosts in Nyack – in 22 years, the owner, Helen V. Ackley, has seen only one.

”He was sitting in midair, watching me paint the ceiling in the living room, rocking and back forth,” she said. ”I was on an 8-foot stepladder. I asked if he approved of what we were doing to the house, if the colors were to his liking. He smiled and he nodded his head.”

Mrs. Ackley said one of the other ghosts would waltz into her daughter’s bedroom. ”We don’t know whether or not she was the one who woke the children up by shaking the bed,” she said.

Ghost No. 3 was a Navy lieutenant during the American Revolution. ”My son saw him eyeball to eyeball outside the basement door,” Mrs. Ackley said.

Here is a Google Map of the haunted house:

View Larger Map

There was at least one Texan who wanted a lease voided because the house was haunted. In some cases, a haunted house may actually increase the property value. Recently the Pennslyvania Supreme Court found that there was no duty for sellers to disclose there was a murder-suicide in the house.