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Hello everyone. I apologize for interrupting your break with this note. I have submitted grades for Property II. You can download the exam question, and the A+ paper (If this is yours, please drop me a line!).

Here is the breakdown of the grades. On the whole, the grades were quite good, I gave as many A- and above as I could, and the number of C & below was on the low side. I am very proud of the class.

I would like to thank all of you for making this a very enjoyable and enlightening class. I learned so much from each and every one of you, and for that I am forever grateful. I hope you will take and treasure this knowledge, and use it to accomplish great things throughout your legal career.

I have submitted the grades for the Constitutional Law Final Exam. You can download the exam here. Because the A+ paper was written in a bluebook–and there’s no easy way to share it–I have posted the second-highest paper (it was only two points lower, so it is a good model to study). To be frank, this was tale of two classes. The good students did really well, and the poor students did really poorly. There was not a lot in the middle.

Here is the curve for the final.

This distribution is roughly similar to that of the midterm–although a bit more smooth, telling me that there wasn’t a significant improvement for the class as a whole. In one of the few bright spots, there was some individual improvement for students who did not do well on the midterm.

Here are some specific thoughts for Question #1.

1. This part was based on the Houston Equal Rights Ordinance, a topic we discussed at great length in class. I even spent class time talking about how its repeal may trigger a lawsuit based on Schuette, Romer, and the political process, which we covered before. Very, very few of you got that issue right.
2. I wrote very clearly in the instructions that the bizarro-Obergefell court found that classifications based on sexual orientation were quasi-suspect, meaning intermediate scrutiny applies. The overwhelming majority of you either didn’t read that part, or decided to ignore it, as you chose rational-basis or strict-scrutiny based on your own reading of Lawrence or Windsor.
3. For the most part, you remembered my discussion from class that there was no such thing as “Hate Speech,” but very few of you managed to engage the precedents to consider a content-based restriction. Although, almost all of you managed to recite the five categories of unprotected speech, which did not resolve the question.
4. This question was to test if you understood a theme we developed throughout class–does the Supreme Court have a monopoly on interpreting the Constitution. I even mentioned Lincoln in the question. This was your place to shine. Inexplicably, only 25% of you even bothered to discuss Lincoln and Dred Scott in your answer.
5. The final question, why do people obey courts, was our theme on the second day of class when we discussed Cooper v. Aaron, and throughout. The answers here, for the most part, reflected a lack of thought.

I wrote Question #2 before class ended, and before the Syrian refugee crisis had come to the fore. It proved to be quite propitious.

1. About half of you were able to recognize that under Printz v. U.S., the federal government cannot commandeer state officials. Therefore, a Governor’s Executive Order indicating that his state officials would not assist federal officials is perfectly lawful. There may be issues where the state depends on federal funding–as reflected in the next part–but as a matter of federalism, there is no problem with this. The other half of you cited the Supremacy Clause to suggest that all federal laws trump state laws. This is wrong for this question.
2. The question of whether the Syrian Refugee Act is constitutional depends on whether withholding 10% of a jurisdiction’s budget for refusal to cooperate would be considered coercive under South Dakota v. Dole, New York v. United States, and NFIB v. Sebelius. The majority of you got Dole correctly, although many said 10% of a jurisdiction’s budget would not be coercive. This is almost certainly coercie in light of NFIB.
3. You may recall on the last day of class–if you bothered to attend–that one student who sits on the right side of the room, last row (from my vantage point) made a comment about having to take an oath of loyalty to the Constitution to become a citizen. At that point, I had already written the exam, so I made a point of stressing that new-citizens are required to take this oath, and I even related this back to Korematsu as as more narrowly tailored means to root out those disloyal to the U.S.  I basically gave away the answer to #3, despite my statement (ironically in my mind) that I wouldn’t give any hints on the last day. In this question, people were being singled out by nationality (which is subject to strict scrutiny). I think it is a close call whether the oath requirement is narrowly tailored enough. A few of you suggested that this is compelled speech–a good point–thought in light of the fact that this is a citizenship requirement, I think it would be permissible.
4. The overwhelming majority of you missed this question about the free exercise clause, which again, we covered on the last day of class. The Governor only required the oath for refugees from Afghanistan, Algeria, Egypt, Iran, Iraq, Kuwait, Lebanon, Libya, Morocco, Syria, or Turkey. Does anything jump out about that list of countries? As several of the top papers noted, these were all countries with large Muslim populations. In light of Church of Lukumi, even though the law was facially neutral with respect to religion, the clear purpose of the law was to single out Muslim refugees following acts of terrorism by ISIS. Thus, there is a free exercise clause violation. A number of you wrote that making someone take an oath to the Constitution would itself be a free exercise clause. This is a good idea, and one I hadn’t considered. I also gave credit for this. Since the time of our founding, people were given the option of swearing an oath, or giving an affirmation. This was an important recognition, as some religions do not permit swearing oaths. If for whatever reason you didn’t catch the Church of the Lukumi issue, you should have applied the Smith general-applicability framework. Many of you cited Sherbert and Yoder, which are no longer good law under the Free Exercise clause. (RFRA was not applicable because I wrote in the question that no claims were brought under state or federal law–only the Constitution).
5. Again, this question was a policy question to allow you to shine. The answers were okay, and for the most part, repeated what you wrote in #3. In fact a couple of you actually copied and pasted your answers verbatim. This is not a good idea.

I enjoyed this class, but was disappointed by the final exams. That so many of you missed issues that weren’t in the textbook, or other commercially-available sources (when you cite cases that we didn’t cover in class, I know you are using outside sources) suggests the class discussions did not get through to you, despite the fact that they are all recorded and students (with very few exceptions) did not come to my office after class to discuss these issues.

I have largely resisted writing about the President’s imminent town hall meeting where he will announce from on high his new plan to control guns through some species of executive actions. Why? I don’t know what he is going to do! There was a similar waiting game during the Summer of 2014 when we patiently awaited what the immigration action would look like. There have been rumors, which I addressed here and here, but until we know for sure the plan, everything else is speculation.

Today, Reuters sketches out two possible options the President may take.

Option #1 would be an executive order redefining what it means to be “in the business” of selling guns.

The Washington Post and Politico reported late last week that one of Obama’s main proposals would require some unlicensed gun dealers to get licenses and conduct background checks on potential buyers. Current law exempts smaller dealers who often operate at gun shows and sell online.

 

As rumored, this would quantify how many guns a person can sell annually before he would have to register for a Federal Firearms License (FFL). This would trigger (no pun intended) immediate law suits from people who sell that quantity of guns, and would be adversely affected. Also, be sure to hear from widows who inherited a hundred guns from their husbands, and do not wish to register as an FFL to sell them off. Needles to say, with this option, a Republican President could rescind this order with the stroke of a pen.

Option #2 would direct the ATF to refine its guidance about who is considered a dealer:

Obama could take the less risky path on guns by directing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to redefine its guidance on who is considered a dealer under federal gun law. This would be advisory and lack the force of law, which would mean that prosecutors could not rely on it when pursuing small gun dealers.

“The guidance could be used as evidence that prosecutors made a reasonable interpretation that a dealer needed a license, but it’s not binding,” said James Jacobs, law professor at New York University and author of the 2004 book “Can Gun Control Work?”

“In a way, it’s more like a speech, like the head of the ATF saying who needs a federal dealer’s license,” he said.

However, this approach would not be binding, and indictments could still be challenged on the ground.

Option #3 would go through the notice-and-comment process for ATF to formally redefine who is a firearms dealer.

Obama could choose an even more cautious route and direct the ATF to begin the formal administrative rulemaking process to change its regulations for who is considered a firearms dealer under the existing Gun Control Act. Agency action that includes the chance for public comment would create an enforceable rule that would likely pass legal muster, but that process probably would not conclude before Obama leaves office in January 2017.

Lawmakers could still try to block such ATF rulemaking by denying the agency funding, particularly funds for enforcing the rule if it was passed in the face of congressional opposition.

This approach would be harder to revoke by the next President, however, the rulemaking process may be held up for years before it ever goes becomes finalized. Plus, because it is a formal agency action, Congress can defund it.

Whatever the action looks like, it will not make a lick of a difference. As Adam Winkler noted:

Regardless of what steps Obama might take to increase the number of dealers who must conduct background checks, legal experts said that he cannot accomplish his desired gun control agenda – like boosting oversight of gun show sales – through executive action alone.

“This won’t really close the gun-show loophole, it will only narrow that loophole,” said Adam Winkler, a law professor at UCLA and author of Gunfight: The Battle Over the Right to Bear Arms in America. “This is going to marginally increase the number of people who have to get a license.”

This is all for show.

A common refrain–and one that has been flying around the constitutional lawprof list-serve–is that this is the most contemptible Congress of all time (even worse than the Civil War) and that the Republicans should be censured for not enacting the “common-sense” gun laws the President wants. (I’m sure the GOP would gladly put on the President’s desk a law guaranteeing nationwide concealed carry). As a result, the President is justified in using his executive power to its utmost potential, with an increasingly implausible series of defenses.

I couldn’t disagree more. In the face of congressional intransigence, there is one very powerful executive action that Obama has utterly failed at using effectively–the bully pulpit. When the Congress does something the President doesn’t like, the President can speak to the American people to show why Congress was wrong. In the midterm elections, the President can campaign for politicians of his own party, to build legislative majorities, so that his agenda can be enacted. Yet this hasn’t happened. Quite the opposite over the last 7 years, in fact. Since President Obama took office in 2009 with a 60-vote super majority in the Senate, and a large majority in the House, his party has lost representation in Congress in every elections. Despite “contemptible” behavior by Congress in 2010 and 2012, the GOP continues to make gains. The  effect has been ever more pronounced at the local level with an unprecedented number of Governorships and State Legislatures being control by Republicans.

But I think the criticism is even more profound. The reason why Congress is opposing President Obama’s agenda is because the American people voted for representatives to oppose his agenda. When elite segments of society exhibit scorn against Republican members of Congress for not passing progressive legislation, I see this as a proxy for scorn against the American people for not electing Democrats who will vote for that progressive legislation. Is it surprising that Congress votes to repeal Obamacare for the umpteenth time when a majority of the electorate do not like the law–and are likely made worse off by it– want to see it repealed?

In his final year of office, with majorities in neither house, and record-low popularity ratings, maybe the President has little to do but “sit around and do nothing,” other than try to get more Democrats into office for 2016. Perversely, taking rash and feckless action on guns–assuming they ever go into effect–may make that task even harder.

One of the most interesting aspects of Shelley v. Kramer is that, as a matter of common law property rules, the racially restrictive covenant should not have been enforced–totally apart from the 14th Amendment. Only 30 out of the 39 owner son Labadie Ave. in St. Louis agreed to the racially restrictive covenant. Under traditional common law rules, this would be insufficient to bind properties that did not partake due to a lack of horizontal and vertical privity.

Even if the agreement was construed as an equitable servitude, it still would not be enforceable as an equitable servitude for two reasons. First, there was no notice.  The house that Shelley purchased did not have the covenant recorded in the deed. Courts are able to impute constructive notice in limited cases. For example, in a subdivision where every single parcel has a one-family house, a court could find that a buyer should be on notice that he cannot build an apartment building in that area. However, that wouldn’t apply to Shelley, as there is no way she should have been on notice that there was a racially-restrictive covenant on the block. And to rebut a point a student always raises, the block was not entirely white–at the time, 5 of the parcels were owned by African Americans.

Second, a requirement of equitable servitudes is that the condition must “touch and concern” the land. This phrase was always nebulously defined, but even at its broadest, there is no way that the race of the person living in the house could relate to the land use. (Although at the time, the neighbors could have argued that having an African-American resident would diminish property values, which was recognized by the courts as touching and concerning the land).

More generally, this sort of covenant would have been viewed as an unlawful restraint on alienation, and would have also been unenforceable under common law rules.

This was the general theme of the first question of my Property II exam, where I tried to tease out these principles. You can download the exam and the A+ paper to play along at home.

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Instructions: The year is 1920. You are a law clerk for the Chief Justice of the Supreme Court of Missouri. You are asked to prepare a memorandum of no more 1,000 words addressing five questions concerning an important property dispute involving Abe, Bob, Cam, Dave, Oliver, and Tim. Missouri applies all common law property rules as articulated in the Restatement (First) of Property, and the legislature has adopted a notice recording statute.

—

Maple Street has historically been an upper-class residential block in St. Louis, Missouri. There are 50 homes on the cul-de-sac (a dead-end street). All of the lots on Maple street have a one-family house that is two or three stories tall. On 6/31/1915, thirty-five of the fifty lot owners on the block agree to form a homeowner’s association. The homeowner’s association agreement has three covenants:

1. Covenant #1: All lot owners on Maple Street covenant to maintain one-family residential houses that are no smaller than two stories and no taller than four stories.
2. Covenant #2: All lot owners on Maple Street covenant to pay to the Homeowner’s Association an annual fee of $1 for every 100 sq. ft. of land they own. This money will be used to pay for maintenance and landscaping of common areas.
3. Covenant #3: All lot owners on Maple Street covenant to only sell their properties to persons of the Caucasian race.

These covenants were recorded by each of the the thirty-five lot owners who agreed to join the homeowner’s association. However, they were neither signed nor recorded by the other fifteen lot owners on Maple Street. Notably, among the fifteen who refused to join were several African-American families.

Abe has lived on Lots 1 and 2 on Maple Street—which are right next to each other—since 1913. Abe refused to join the homeowner’s association in 1915, and did not record covenants for either lot.

Bob tells Abe that he wants to purchase Lot 2, and build a six-story tower for bird-watching. Bob admits that the tower will cast a shadow over Lot 1, and block a lot of sun light. Bob offers to pay for a covenant that will allow him to block the sun light over Lot 1. Abe agrees to the covenant. On 1/1/1916, Abe sells to Bob Lot 2 with the covenant on the deed. Bob is not Caucasian. Bob did not record the deed.

On 2/1/1916, Bob leases Lot 2 to Cam for one year. Over the following month, with Bob’s permission, Cam proceeds to construct the six-story tower.

On 3/10/1916, Dave expressed an interest in acquiring Lot 1 from Abe. Dave conducts a title search at the records office and finds the following chain of title:

Grantee Index

Grantee	Grantor	Property	Description	Date of Deed	Date Recorded
Tim	Oliver	Lot 1	General warranty deed in fee simple	1/1/1900	2/15/1916
Abe	Sam	Lot 2	Quitclaim deed in fee simple	1/1/1914	1/15/1916
Abe	Oliver	Lot 1	Quitclaim deed in fee simple	1/1/1913	1/12/1916

 

Grantor Index

Grantor	Grantee	Property	Description	Date of Deed	Date Recorded
Oliver	Abe	Lot 1	Quitclaim deed in fee simple	1/1/1913	1/12/1916
Sam	Abe	Lot 2	Quitclaim deed in fee simple	1/1/1914	1/15/1916
Oliver	Tim	Lot 1	General warranty deed in fee simple	1/1/1900	2/15/1916

 

On 3/1/1916, Abe sells Lot 1 to Dave in fee simple with a general warranty deed. Dave promptly records his deed. Then the litigation begins.

 

—

In a memorandum of no more than 1,000 words, please address how the Missouri Supreme Court should resolve the following five issues.

1. A member of the Homeowner’s Association files suit against Bob, seeking to set aside the sale of Lot 2, because he is in violation of Covenant #3. Who should prevail? Please remember that since the year is 1920, the doctrine of “Separate but Equal” announced in Plessy v. Ferguson is still good law. There are no federal constitutional problems with the judicial enforcement of Covenant #3—this question must be resolved as a matter of property law.
2. A member of the Homeowner’s Association files suit against Bob, claiming that he is in violation of Covenant #1 for having a six-story tower. Alternatively, the member argues that Bob should have been on notice that a six-story tower would be prohibited. Who should prevail?
3. The Homeowner’s Association files suit against Bob, who refuses to pay the annual fee, for violating Covenant #2. The Homeowner’s Association concedes that the covenant cannot be enforced as written, but argues that this promise should be construed as an equitable servitude, and enforced by the courts. Who should prevail?
4. Dave sues Cam for a nuisance, because the tower from Lot 1 casts a shadow on Lot 2. Who should prevail?
5. Tim sues Dave, seeking to quiet title, and determine the true owner of Lot 1. Who should prevail?

 

I wonder if she does pushups with RBG. In a contest, my money is on Ruth.

Via Capitol Hillary

Clinton also does the D.C. Circuit.

HRC also does W&C.