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Welcome to Constitutional Law. This class will cover a wide range of topics in constitutional law, including our constitutional structure, the scope of federal powers, the separation of powers, the 14th Amendment’s Due Process and Equal Protection clauses, individual liberty, federalism, the First Amendment speech and religion clauses, the Supreme Court, and many other topics. We will be using “The Constitution of the United States” by Paulsen, Calabresi, McConnell, Bray (Second Edition, Foundation Press, 2013).

You can find the syllabus here. Your assignment for the first day of class on 1/14/16:

Our Founding Documents

• The Declaration of Independence
• The Articles of Confederation (pp. 1633-1638)
• The Constitution of the United States (pp. 1-15).
• The Adoption of the Constitution (19-27).
• Six broad themes of the Constitution (35-39).
• Map of the Constitution (39-42).

Note: Read these documents in their entirety. They’re not long. And no one should graduate law school without reading them at least once.

You can also view all the class videos by subscribing to the YouTube channel. I have created playlists of the lectures from previous years.

• Constitutional Law Lectures from Fall 2015
• Constitutional Law Lectures from Spring 2015
• Constitutional Law Lectures from Spring 2014

Here is the playlist for the lectures from Fall 2015.

The lectures for this semester will appear on this playlist.

For the second question on my Property 2 Exam, I was inspired by the classic real estate game, Monopoly, and the Presidential candidates.

• Marco sells the same pieces of land to Ted and Hillary, while the former squats on it.
• The planning commission demands an exaction from Rand to build a bridge over railroad tracks.
• Bernie grows marijuana on Marvin Gardens, but there is temporary flooding from the Water Works.
• Donald builds a  “huge” wall on the Boardwalk to keep out migrants from Mediterranean.

The jokes write themselves, and I managed to factor in the actual Monopoly game board. Question #1 is here, the exam is here, and the A+ answer is here.

Instructions: You are a law clerk for a judge in the trial court in Monopoly, New Jersey. You are asked to consider five property issues concerning six friends: Ted, Marco, Hillary, Rand, Bernie, and Donald. New Jersey applies all common law property rules as articulated in the Restatement (First) of Property. The statute of limitations for all causes of action in New Jersey is two years.  New Jersey applies a notice recording statute.

—

The seaside town of Monopoly, New Jersey straddles both sides of the proverbial train tracks. The properties range from the rundown houses on the Mediterranean to the gleaming hotels on the Boardwalk, and everything in between. Six friends start their real estate dealings, as always, with the roll of the dice.

 

Turn 1

Ted makes the first move, and seeks to acquire the blighted lots of Baltic and Mediterranean from Marco. Marco provides Ted with a survey s 1qtating that Baltic stands fifty feet to the east of the Community Chest Bank, and that Mediterranean stands fifty feet to the west of the Community Chest Bank.

 

Marco’s Survey

Ted opts only to purchase Mediterranean, described on the deed as the lot 50 feet to the west of the bank. Marco gives Ted a quitclaim deed, which was never recorded.

The following week, Hillary offers to purchase both lots from Marco for $60,000. Marco shows Hillary the same survey he gave to Ted. Hillary has a bad feeling about it, and commissions her own survey. It turns out Marco’s survey was backwards. In fact, Baltic was fifty feet to the west of the Community Chest Bank, and Mediterranean was fifty feet to the east of the Bank.

 

Hillary’s Survey

            Hillary agrees to purchase both lots from Marco for $60,000. Marco and Hillary shake hands on the deal, and Hillary hands him a suitcase full of $60,000 cash. Later that night, Hillary called Marco, to ask him if he would give her a deed for the two lots. Little did she know that Marco was savagely beaten into a coma when a gang stole his cash-filled suitcase.

The next day, Hillary learns that Ted was living on the westward lot, which was in fact Baltic, and not Mediterranean. She shows Ted the survey, and tells him to get off. Ted refuses, and insists that he is staying on the westward lot, whatever it is called!

Three years later, Hillary files suit to eject Ted from Baltic, the westward Lot. Ted counterclaims that he has acquired Baltic through adverse possession. Marco, who miraculously awoke up from his coma, asserts that he was still the owner of both lots, and that Hillary never lawfully acquired them.

 

Turn 2

Rand owns the lots on St. James and Virginia. Between the two lots are train tracks for the Pennsylvania Railroad.

Rand has a house on Virginia. Rand seeks to build a hotel on St. James, and applies for a building permit. The Monopoly Planning Commission, without granting or denying his permit applications, suggests that Rand hire a local construction firm to build a bridge that stretches from St. James over the railroad tracks to Virginia. The Commission tells Rand that the bridge will help people walk from the train station to his hotel, and improve traffic conditions on the busy street. Rand is outraged, and refuses to pay to build the bridge. Rand files suit in the trial court, claiming that the Planning Commission violated his rights under the Takings Clause of the 5th Amendment.

 

Turn 3
Bernie rolls the dice next. He owns a farm on Marvin Gardens. To the west of Marvin Gardens is the Monopoly Jail and to the east is the Monopoly Public Water Works reservoir.

Bernie’s sole crop is marijuana, which was recently legalized in the state. The soil on Marvin Gardens is ideally suited for cannabis. However, the scent of the marijuana, which wafts over the walls of the jail, incites the prisoners to try to escape on a daily basis. It has become a serious security problem. The Monopoly City Council passes an ordinance, requiring that all marijuana growers are required to install 50-foot screens around the borders of their farms that can filter out the scent. Bernie refuses to build the screen, and files suit against the City Council in the trial court, alleging that the ordinance violates his rights under the Takings Clause of the 5th Amendment.

Bernie’s problems don’t end there. In order to provide enough water for his marijuana crops, the Water Works built a subterranean pipeline from the reservoir to the ground underneath Marvin Gardens. In the middle of the winter—long after Bernie’s crops were harvested—the pipeline bursts. The entire farm is flooded, and the ground underneath the farm sinks one inch. However, because the accident happened after the harvest, the flooding and subsidence did not damage any crops. Bernie files suit against the Water Works in the trial court, alleging that the burst pipeline resulted in a violation of his rights under the Takings Clause of the 5th Amendment.

Turn 4

Donald owns the opulent beachfront Boardwalk Hotel. Donald starts to build a “huge” wall surrounding the hotel, so he wouldn’t have to deal with or see the dispute on Mediterranean. The wall has a “beautiful” door to allow people cross onto the beach.

The Monopoly City Council amends the zoning code, and imposes a five-year moratorium on building anything that is “aesthetically unpleasing” on the beach. The purpose of the moratorium is to study how eliminating unsightly constructions near the beach improves the public’s physical and visual ability to access the shoreline. The moratorium may be renewed for additional five-year terms, in order to provide sufficient time to analyze the issue.

Donald submits his plans to finish the wall to the Monopoly Zoning Commission. The Commission determines that Donald’s red-brick wall would be “aesthetically unpleasing” because it is “out of place.” Donald asks for further clarification, but the Zoning Commission offers none. As a result, the Commission determines that the plan is subject to the moratorium, and Donald cannot complete his wall. Donald appeals the Commission’s findings to the trial court.

—

Each of these five suits is consolidated in a single case. You are asked to write a memorandum of no more than 1,000 words considering the following five issues:

1. Please describe what interest, if any, Ted, Hillary, and Marco hold in Baltic (the westward lot) and Mediterranean (the eastward lot).
2. Did the Planning Commission violate Rand’s rights under the Takings Clause of the 5th Amendment?
3. Did the City Council violate Bernie’s rights under the Takings Clause of the 5th Amendment by requiring him to install the screens around his farm?
4. Did the Water Works violate Bernie’s rights under the Takings Clause of the 5th Amendment when the pipeline burst?
5. Did the Zoning Commission have the authority to designate that Donald’s property is subject to the moratorium?

 

 

Hello everyone. Welcome to Property I. You can find the syllabus here.

Here is your first assignment.

Class 1 – 1/14/16

From Nature to Commons

• Johnson v. M’Inotsh, 3-10
• Notes and Questions, 10-18
• Toward a Theory of Property Rights, 40-46

 

Shortly before the President announced his new “executive action” on guns (more on that term later), he told the press:

“The good news is that these are not only recommendations that are well within my legal authority and the executive branch, but they’re also ones that the overwhelming majority of the American people, including gun owners, support and believe in.”

The notion  that ideas which “overwhelming majority of the American people” support should become law conflates our republican form of government with a direct democracy. Just because an idea is supported by 51% of the populace doesn’t mean it becomes law. Our constitutional system of government has numerous mechanisms built in to prevent direct-democracy. Indeed this was viewed as a cardinal aim of our framers–how to halt unchecked factions from implementing their agendas. But beyond that, the President’s statement is terribly confused.

First, I reject the notion that an “overwhelming majority of the American people, including gun owners, support and believe in” each of the seven executive actions I catalogued earlier. As I’m sure Ilya Somin can demonstrate, people are rationally ignorant about details of complex regulatory agenda. It took me nearly 30 minutes to make sense of the “Fact Sheet,” and I’m not entirely sure what these provisions mean. Additionally, even if a person tells a pollster she favors/opposes gun control, that says very little about the sorts of specific proposals the President announced today.

Second, despite what certain elite segments of society will tell you, gun control is simply not a particularly important issue for the American populace. A Gallup survey released today shows that the most important problems facing the U.S is government itself (16%), the economy (13%), unemployment (8%), immigration (8%), and healthcare (6%). Guns control is all the way at the bottom with 2%, right below “environment/pollution” (consider how high-priority the recent Climate Change conference in Paris is to most Americans?). Even if the President is correct that the people support his specific agenda–he’s not– it is such a low priority, that it is unsurprising Congress has not made any traction in this area.

To put this in terms of the Federalist, there are countless factions vying for the attention of the Legislative branch. Some want to focus on the economy. Others want to focus on immigration or health care. And somehow, through the miasma of Congress, some stuff makes it through. Stuff that doesn’t have enough support falls to the floor. The President’s use of executive action bypasses this process, and allows him to pursue those actions he likes, regardless of how important they are to the American people.

Third, as I demonstrated in The Shooting Cycle, although there is a spike in support of gun control after a mass killing, it quickly regresses to the mean.

The Gallup Poll confirms this trend:

Another issue that briefly spiked as a concern in 2015 was gun control, with mentions rising from near 1% most months to 7% in October and December following mass shootings that dominated the news.

At some point when things settle down, I will delve further into how “executive action” can alter the methods by which our countermajoritarian system operates.

Tonight the White House released a “Fact Sheet” discussing the executive actions the executive branch will take with respect to gun control. Not even President Obama has figured out how give a “Fact Sheet” the force of law–he’s trying, I’m sure–so the only important aspects of the lengthy document are whether an agency is proposing a rule, whether a rule is being finalized, or whether the President issued a directive to an agency. Everything else, as they say, is hortatory fluff. (Update: Thanks to Sean Marotta, who found that many of the finalized rules were proposed some time ago).

First, ATF is “finalizing a rule” to expand the scope of people who are required to run background checks prior to selling guns.

ATF is finalizing a rule to require background checks for people trying to buy some of the most dangerous weapons and other items through a trust, corporation, or other legal entity.

The President did not set a specific number of sales that triggers the rule, as many feared. (Update: Sean found the proposed rule was put out in 2013).

Second, ATF is “finalizing a rule” concerning lost or stolen firearms:

ATF is finalizing a rule to ensure that dealers who ship firearms notify law enforcement if their guns are lost or stolen in transit.

(Update: Sean found the proposed rule was put out in 2014).

Third, the Social Security Administration “has indicated that it will begin the rulemaking process” to prohibit people with certain mental illnesses–that render them unable to manage their own finances–from owning guns. (Note that they will go through the rulemaking process for this one, as it includes certain due process rights for those denied the right).

The Social Security Administration has indicated that it will begin the rulemaking process to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons.

Fourth, HHS is “finalizing a rule” to make it easier for states to report information about people who are prohibited from owning a gun for mental health reasons.

The Department of Health and Human Services is finalizing a rule to remove unnecessary legal barriers preventing States from reporting relevant information about people prohibited from possessing a gun for specific mental health reasons. … Today, the Department of Health and Human Services issued a final rule expressly permitting certain HIPAA covered entities to provide to the NICS limited demographic and other necessary information about these individuals

Fifth, ATF is “finalizing a rule” that makes it impossible for people to bypass the background check process by using a gun trust.

ATF is finalizing a rule that makes clear that people will no longer be able to avoid background checks by buying NFA guns and other items through a trust or corporation.

This measure, I’m sure, will hinder hardened criminals who hire attorneys to set up gun trusts prior to buying a gun. I know lawyers in blue states who have made an entire practice about building these trusts.

Sixth, ATF “issued a final rule” concerning lost or stolen guns.

Today, ATF issued a final rule clarifying that the licensee shipping a gun is responsible for notifying law enforcement upon discovery that it was lost or stolen in transit.

Seventh, there is a “presidential memorandum” that urges the agencies to investigate smart gun technologies, such as microstamping and fingerprint scanners.

Issue a Presidential Memorandum directing the Department of Defense, Department of Justice, and Department of Homeland Security to take two important steps to promote smart gun technology. …

The Presidential Memorandum also directs the departments to review the availability of smart gun technology on a regular basis, and to explore potential ways to further its use and development to more broadly improve gun safety. …

Millions of dollars have already been invested to support research into concepts that range from fingerprint scanners to radio-frequency identification to microstamping technology.

At first blush this is extremely underwhelming. I’m sure some gun control advocates are livid. But there is more here than meets the eye. My sense is that the President is setting the stage for future legislation actions. Think about what the actions as a whole accomplish. The President is building the framework for a national registry of people who are not fit to own firearms due to “mental health” concerns. By streamlining the process by which states can report this information–through waiver of HIPAA requirements–the President is signaling to blue states that they can tackle gun control at the local level, and this can ultimately be used nationally. Bloomberg and those funding this mission are no fools. Once such a database is built and tested, it will be so easy for a President Clinton to fold that into the instant background check. Additionally, deeming millions of people who are unable to manage their own finances incompetent to own guns is a significant stigmatization of the right to keep and bear arms. This could ultimately be expanded to other forms of state and federal welfare. This mission creep would be particularly insidious. Finally, funding research into the microstamping and finger-print-scanner guns will provide the basis for a future Congress to mandate these technologies for personal use. I don’t believe for a second that the DOD will require service revolvers to be finger-print activated. A similar research-now-legislate-later approach was used in New Jersey.

These regulations will be challenged in court, as Obama knew they would. But it doesn’t matter. This is simply laying the groundwork for future action when a Congress, more to his liking, is able to act. This is a long-game approach to gun control.