marsh v. AL -- this is private property. if someone were to leaflet in your bathroom, you have a trespass action, not a con law issue. but what is it about this case that bridges the issue for expression in this case, when the leafleting is happening on private property belonging to gulf? gulf has created a mini-government in someways (policing, public space maintenance, etc)... do they perform enough gov't like activity to become a government? j.black says that the more that gulf opens their property for public realm, the more it becomes public realm. how would that affect the leafletter in your bathroom? if you're trying to make a customer stream out of your bathroom, you may open yourself to con law issues because you've become a public forum.
if race consciousness is a bad thing, why let people have it?
why assign
state requirement is a "hydrolic check"
shelly v. kramer - racial covenant between HOA
if the shelleys had refused to sell to the shelleys, no con law issue (private)
they sell - no con law issue
animosity of the neighbors -- no con law issue
the neighbors go to court for an injunction -- now, a con law issue under 14th amd't
the potential is overbroadness from shelley v. kramer -- cause the parties can always call the cops...
pre-civil rights cases, lunch counter issues were trespass
bell v. MD: pre civil rights... is this the same as shelley v. kramer? no, because shelley is changing private ordering, and bell is supporting the private desires of the diner owner (though, after 1965, the diner owner would have statutory problems in discriminating sales)
you can find a gov't actor in the storyline in these kind of cases.
congressional power.
shurbert v. verner -- religious limits act is passed (sherbert test)
14th amd't, s. 5:
n.b. -- when US quotes marbury, they are really kickin their supremacy
US v. the jaycees: "it's not a marriage, it's a lunch club. it's not a religious event, it's a meeting." we're out of the intimate stage, but we're in the public stage, like with the NAACP case: how does the court reconcile without infringing on the organization? jaycees is about developing young men, and it's not changed by letting young women participate and vote on the board. is that persuasive or is it clutter?
1) the jaycee's side of an issue isn't changed by who's aprt of the voting base... that's an empirical proposition, just an assertion public association is important for later cases
2) assumption is being made that gender’s not being used to deliver anything unique in this situtation that we can point to
public association is important for later cases, and somewhat of a watermark to the association interests
boy scouts v. dale: homos are creepy....
does dale shake you when you compare to lawrence v. TX?
trying to make a distinction between public and private: moral judgment isn't the laws, but the boy scouts. criminal law proceeds from moral disapproval in lawrence, and that's not cool. but in dale, BSA (like KKK...) get to make certain discriminatory choices and decisions
remember, private discrimination is totally cool. but public figures are connected to public dimensions (speaker to audience, writer to readership, etc).
are we actually talking about religion for the first time, or have we been talking about religion all along? 1st amendment brings religion up, but we're pressing for a definition: is it an organized, facilitated thign? is it broader than that -- a religion without a house of worship, without even a god? is it every idea that you have that's dear to you (i like tofu... go obama... i like rumsfeld...) supreme court does not have a clear view or application for the religion clause, from old days to today. and it's worse in this world of incorporation in some ways, because all the states must play by the same rules.
noxious use of land -
in determining the public interests here, holmes is making a very consciencous choice in the choice of plaintiff: MAN -- what's man's interest in his house... what's other ways to look at this
1) the coaler act doesn't speak to "man's" house, it speaks to habitations where all sorts of people might go
2) brandies says: you can carve up something so that the act would diminish the value in all the property
we have an issue of a devaluation of a property. holmes says it's a diminution in the value of use. brandeis says its a drop in the vaule of the whole thing. the lower the value, the more likely a taking and then the public's interest will be decreased in the land in general.
holmes: the public doesn't have an interest in man's house
brandeis: that isn't even the issue!
holmes is focusing on the acts of particular parties with respect to their particular property and how that is not comparable to the
the kohler act is not at issue. just who should pay is.
this case's take away: with the same principles, facts and doctrine to guide, holmes and brandeis come out with different results. this is a problem for people who think that laws should be predictable.
penn central v. NYC
does the landmark's preservation law determine a taking?
brennan says that since there's no formula we read haddaceck and mahon:
1) land-use regulations that promote the health, safety, morals and general welfare of the public, even though they prohibit the most
basically,
1) did you buy your land in reliance on what you could do with your land?
2) does the regulation restrict your reasonable expectation of what you could do with your land?
here, brennan says that taking is related to taking of the whole of your property. in loretto they said it was a taking to a tiny tiny part.
the relevant denominator for takings claims... is this consistent with loretto? what was significant about the taking of the 1/8 of an inch of space on loretto's building?
police powers. the public use element of the takings clause is reiterated in kelo, and public purpose is stated very broadly. the language actually comes from penn central:
- if the regulation furthers public purpose, then there hasn't been a taking.
after penn cental, we just care whether or not a taking is within the state's power to proscribe. what reciprocity of advantage? in penn coal, holmes talks about how public bad v. public benefit may nevertheless be upheld if there's a mutual reciprocity of advantage (if the burdened FSA owner is given an equivalent benefit)
what's reciprocity of advantage in this case? is there any? renquist says no, it's not being shared fairly, because all the cost of preserving grand central is put on a few property owners even though the entire community of new york gets the benefit
MR: intent to commit the crime, but you can't have attempts for reckless or negligent crimes. no attempt for felony murder except in FL
AR: common law rule from new york (dangerous proximity)
MPC is substantial step
rizzo. when the defendant couldn't find the victim,
1. 2:55pm - anne decideds to kill bob, who lives 20 miles away
2. 3:00 pm - anne loads her gun
3. 3:30 pm - anne sets off for bob's house with the gun
4. 3:55 pm - anne arrives at bob's house at this point, anne's actions fit an attempt via the MPC
5. 3:56 pm - anne aurveys the area
6. 4:00 pm - anne returns to her car
7. 5:15 pm - anne lies in wait with the gun at this point it's questionable if she fits an attempt at the NYPL
8. 5:20 pm - bob does not arrive home at the expected time
9. 5:35 pm - anne leaves, bob arrives home five min later
if anne leaves, is she attempting still?
new hypo.
11. 5:15pm anne lies in wait with the gun
12. 5:20 pm bob arrives home; anne aims
bob exits the car
anne puts her figner on the trigger, bob's daughter appears
(if change of heart happened, abandonment)
anne decides to wait until the next day
13. later anne decides not to kill bob
abandonment.
there's no harm.
therefore there's no culpability.
anne has renounced her decision to kill bob.
she's no longer dangerous at step 13.
we want to encourage abandonment, because otherwise there's not encouragement to not go forward with the prohibited act.
renunciation NYPL 40.10 (1) abandoned/prevented (2) voluntary and complete not increased fear ** not postponement
arguments under abandonment.
BUT -- if she abandons because she's worried of getting caught, she's still demonstrated her immorality. OR -- she's not culpable, because she got rid of the intent and acted in the manner that we want for people to do: it's a conundrum of punishing successful deterrence
BUT -- if she's only afraid because she doesn't want to get caught, she is even more dangerous in a sense because she will just think of a way to commit the crime with less chance of being caught
is our approach to law subjective or objective:
SUB: we have to figure out what people are thinking... in the real world, how do we know?
OBJ: the objective elements can be
there's a difference between thinking about sleeping with a 15 year old and doing it. proof problems are an issue, in addition to
when we get to step 13: anne is guilty of attempted murder, BUT if she can prove that she abandoned, she gets off with that defense.
if someone sticks their hand in dean simon's pocket to rob him, but there's nothing there are they guilty of larceny? NO; no harm not culpable of attempted larcency? YES; they demonstrated their danger (U) and they have a culpable intent (R)
dean simons is gonna kill albina and says "die sucker" but there's no bullets in the gun. attempted murder? YES; demonstrated danger and culpable intent
factual possibility is NOT a defense!
hypo. you think it's a crime to skip crim law. you say to the cops "arrest me! i skipped" and then you say "arrest me because i attempted to skip!"
factual impossibility because there's no prohibited behavior!
the problems are the inbetween...
hypo. walking through times sq and pass a shifty guy with a brief case filled with watches. you need a watch. he has a rolex for $10. you think that they're stolen, potentially but you buy one anyway. are you guilty of receipt of stolen property? are you guilty of attempt?
lady elton's lace.
impossibility at common law:
* factual impossibility (not a defense)
* legal impoosibility (defense)
* hybrid impossibility (who knows? shooting a corpse, like the dekki problem)
under the MPC/NYPL: d is guilty of an attempt if he would have been guilty of a crime had the circumstances revealed themselves to be as he believed them to be.
grading attempts.
under MPC, they are the same as the BARREK but the exception is culpability.
under NYPL, we take the opposite approach, and attempts are usually 1 grade less serious. exceptions are murder 1 and serious drug felonies. but murder 1 and 2 are both A1 penalties, but you're still under an A grade as an attempted murder.
the distinctions between harm and culpability
the distincctions between retribution and utilitarianism the distinctions between subjective and objective the distinctions between politics and morals the distinctions between vengenance and punishment
kelo v. new london
pfizer wanted to condemn an area in new london to purchase and build a new R&D facility. kelo alleges there is no public use to the pfizer redevelopment plan. the state supreme court says that economic development is a public use. the case then moves on to the US.
stevens in the majority sets forth the public use doctrine:
berman -- a case brought to challenge a statutory scheme for south DC, that was basically a federal shanty town and an embarrassment of the nation against the communist dismissal of these areas of our country. the area was seized by a development authority and redeveloped into a public/private area that still stands.
is there a difference between blight and economic development?
we want to know if, as a whole, the economic activity will zoning is a classic example of this kind of deferrence from the courts to the political branches
and what happened? the economy bottomed out...
pfizer didn't come through, and didn't come through with the development... the town fucked up and made a bad decision.
just compensation: valuation issues
- objective v. subjective
- pre-condemnation v. post-condemnation
who gets to decide what the best use of land is? what would it look like?
what is a taking?
kelo: no question of taking because the state goverment explicitly was exercising eminent domain.
however there is also regulatory taking: the gov't enacts a regulation and the effect is a taking.
the issue is that, when this type of taking has occured, the FSA holder is due just compensation.
impacts her rights in such a way that it is a violation of 5h amd't. the court of appeals holds that the cables and boxes are so trivial that they cannot be a taking. and justice marshall says for the US that it is a taking: "a permanent physical occupation"
the regulation takes away from loretto the right to exclude even this small nuisance from the cable company.
but why do we talk about it as regulation when we're saying that this has to do with her right to exclude?
does our concerns about this lead us to the issue of per se taking? or is it the other way around?
hadacheck v. sebastian
"the community must make progress and the private interests are not in line with that"
nusiance regulation.
what is a nusiance?
think babck to forrester -- if the father survived, would he have been convicted of attempted homicide? yes; had both t
think back to the dogs case, the whipple manslaughter -- what if diane whipple had not died? would knowler be convicted of attempted homicide? did she have the intent to commit a crime? if intent means mental state, she did - but if it means intent, she did not (didn't wish to kill anyone).
what about if dean simons shot at jacob to show what a great shot he is and missed. would he be convicted of attempted murder? no. why not?
- reckless conduct but reckless endangerment: it could have but didn't kill someone, but there is no intent to kill anyone (reckless endangerment is a much less serious crime)
is there such a thing as attempted manslaughter? yes and no...
there is voluntary and involuntary manslaughter!
gentry.
he poured gas all over her
mens rea: recklessness
actus reus: gas
causation: but for and prox cause
what if you were on the jury, would you believe that she walked over to the stove?
let's say that he poured gas on her withan intent to scare her, throws a match at her and says, "jump" to make her scared. she doesn't jump. what is he charged with? murder, probably depraved heart
IL uses common law definition of murder.
at common law, murder is malice aforethought:
the four mental states
1. intent to kill
2. intent to inflict great bodily harm
3. extreme recklessness
4. felony murder
had ruby hill died, the state could have gotten any of these four definitions.
but since they're going for attempted murder, the prosecutor must show that gentry had intent to kill ruby hill.
got purposefulness, recklessness and negligence. but need two other mental states...
hypo.
dean simons is a major supplier of drugs. meghan wants to buy. dean simons is going to sell her 1k of coke. what is he doing? possessing, potentially possession with an intent to distribute. is meghan in possession? no. when meghan has it, what is the mental state? does meghan think it's coke? no. so knowledge is the mental state of possession. what is the mental state of the possession interest? the mental state of the attempt...
do we want to punish meghan for the attempted possession of narcotics? yes. why? because she intends (conscious object) to possess and distribute.
the mental state for the underlying crime -- knowingly
the mental state for the underlying act (?)-- purposefully
bruce v. state
what can we get him with felony murder? no - no intent for felony murder
what are the arguments for/against?
Utilitarian
FOR: to make people commit felonies less dangerously
AGAINST: doesn't give any incentive to people to stop once they've started because their culpability will already be so high
FOR REBUTTAL: in attempt cases, you are close to the injury but you don't have it ultimately
Retributive
FOR: the harm isn't present (the victim didn't die)
AGAINST: you're not any less culpable just because the person didn't die
why do we want to punish attempts?
we want to deter dangerous people.
why not punish attempts?
because there's no harm.
but let's think of the utilitarian effects...
for example, stat rape situation: why did we punish garnett even though he didn't know the girl was 13?
the statute's policy is that we want to deter people from social harm. but for attempted engagement in the conduct prohibited by strict liability, the mental state is purposefully
NYPL and common law - since there's no harm, we're going to go after people for choosing conduct (i.e. intending to engage in the crime) that is dangerous/deterrable.
so in NYS, if hte prosecutor could prove that garnett intended to have sex with the underage girl, he could have been
MPC - since the underlying crime doesn't have a mental state, neither does the crime.
n.b. -- when doing problems on the exam, divide the world into intentional and unintentional
INTENTIONAL UNINTENTIONAL
murder murder depraved felony
mans purposefully recklessly
neg hom negligently
people v. rizzo
actus reus.
what's the problem with thoughts?
1. proof problems
2.
the challenge in defining the actus reus in attempt:
balancing the utilitarian effect of saving lives (that's awesome) with all the problems that can come up if cops intercept too soon (practical and philosophical problems)
dangerous proximity test: was the defendant 1) close enough to 2) commit serious harm
MPC substantial step
strongly corroborated with criminal purpose
actus reus: questions come up at incomplete attempts
culpability
because in rizzo they knew that he was not there
1. 2:55pm - anne decideds to kill bob, who lives 20 miles away
2. 3:00 pm - anne loads her gun
3. 3:30 pm - anne sets off for bob's house with the gun
4. 3:55 pm - anne arrives at bob's house
5. 3:56 pm - anne aurveys the area
6. 4:00 pm - anne returns to her car
7. 5:15 pm - anne lies in wait with the gun
8. 5:20 pm - bob does not arrive home at the expected time
9. 5:35 pm - anne leaves, bob arrives home five min later
the hydraform case about the stoves. the american was late in its delivery and selling defective steel to hydraform. there was a clause that proported to limited consequential damages. the lower court found the clause to be unconscionable. assuming consequential damages, how far do they go? souter said that the consequential damages ruling, though it goes beyond the clause, is still limited: all that hydraform can get is lost profits on the 150 stoves it didn't sell because american steel was late and provided defective steel. it can't get diminished business value.
bohac v. dep't of agriculture.
not a contracts case, but the appellate court is looking at the meaning of consequential damages and making an inquiry into whether they include nonpecuniary losses. consequential damages does not cover nonpecuniary losses. sharfman calls it the "undertaker's exception": see p.1060 for the restatement... if you do something reeeeeally anguishing like messing up on a body, and that causes grave (haha) emotional disturbance, you may be covered by the remedies doctrine. also innkeepers and carriers are covered.
in the long island case of broken engagement, the court held damages for nonpecuniary loss was not a legally cognizable mental anguish for contract breach remedy.
acquista may be an exception to where nonpecuniary losses may be allowed remedy.
plantiff is seeking damages in excess of the insurance company limits of payout. the theory is that there is some sort of nonpecuniary/emotional/nonfinancial losses associated with the denial of coverage.
the case gives some theories: maybe the doctor was deprived of medical treatment or other therapies that would have made his life better, and now he's suffered damages because of the lack of treatment. this opens the door to a tort claim via contract law: "why not just bring a tort claim here? there's a claim of emo distress and loss of opportunity?" sharfman says that in torts you have IIED but here even if it wasn't intentional, you stillhave rise to distress even without intention, just need breach or unconscionability or reliance under contract.
guy got the car and made payments. then realized the new car was used. stopped payments, and car dealer sued. common law rule: you don't get punitive damages. but this is a case where defendant got them on counter claim. the general rule for punitive damages is that they must have some reasonable relation to the compensatory reward. what does reasonable mean? sharfman says he doesn't know but that it could be like a ratio: J. Kennedy says that a ration more than 10/1 is too high and without due process.
money from amco would not work here because there's some losses to lackleed in this trailer park are dependent on the gas. they would have a claim, and that could potentially not be foreseeable to amco and so the compensatory would not be full under hadley and so amco would be held to specific performance.
go ahead and breach and pay: the economic doctrine under posner
here in walgreens case, the landlord wants to breach the lease and rent to another pharmacy. the landlord wants to pay damages and walgreens wants an injunction because the monetary damages would under compensate. posner was happy with the lower court. for our purposes: if you can come up with the arguments for why the money remedy is likely to under compensate then you're in inadequacy at law territory in which case specific performance/injunction could definitely work. you can try to calculate what walgreens profits would be against pharmor's but there's nothing certain to that about the loss. though it's unclear as to the loss it still is reasonable that the money would undercompensate.
notes: injunction goes pretty far -- the contractor who hasn't even begun to build the mall yet is ordered to build it.
negative injunction case: abc v. dick wolf
this is a labor/employee contract. you can't force someone to perform on an employment contract. you might owe damages, but there's no specific performance. wolf doesn't want to go forward with abc, but instead wants to move to cbs and abc wants a negative injunction to make wolf unable to work for cbs. can't as someone to perform specifically under an employment contract but you can get an injunction to keep them from working with someone else. losses: loss of advertising, loss of viewership, etc.
land use in the form of equitable servitude:
restrictions and controls of common interest entities and what those interests over the group can be.
* internal fees/ taxes
* restriction to behaviours and life choices
* restriction to use of land (aesthetic regulations,
* deciding who may live in the community
zoning.
is this the kind of authority that we have given our governments?
euclidean zoning
village of euclid v. ambler realty 272 US
the village of euclid had a zoning system. ambler decided to challenge under the 14th amendment: the land i own is more valuable as industrial land, but the use zones don't allow industrial use and so you have taken my property by diminishing its value (this is kind of like the south carolina beach front reclamation case)
what else could ambler do to reclaim the value and use on its property? it could have asked the city for a zoning variance
why didn't ambler do this? want the constitutional issue decided
wouldn't they have been in a better position if they had applied for a variance
the entire scheme of having to check with the gov't before use is an element of the lack of DP under the law.
con -- deprevation of property in violation of 14th amd't, or of just compensation under 5th amd't
pro -- the burden is not so great, there is a DP exception of the variance; it is an extension of the police power to protect citizen's health, wealth and privacy
the legislature is protecting the privileges of the residents of the community who might be affected by non residential uses of neighboring land.
so what's the dispute? you have the right to enjoy your own property until it burdens someone else's use of their property
how does that work in this situation? the residents who want to use their land residentially would be burdened by the industrial use of the land and the interest in their property would be impaired (see H1)
what's the opposite argument? you're allowing residents to live here is burdening my use of this land, which is so perfectly made for industrial activity, and you
who gets to decide??? why not say landowners get to decide? why not say the market gets to decide? what's wrong with letting the market sort out these disputes?
land use exists to separate and distinguish.
why not combine the residential, suburban and industrial uses of lands? why not impose
what is the issue of fire and traffic in this case? the children!! think of the children!!
what do we need to save the children?
- traffic regulations,
the zoning ordinance, by restricting these traffic and industrial uses, improve the environment for children. and what is the best for the children?
- single family home (U-1): all else is in service to that
- U2 is also a residential zone... two-family homes
- U3 is apartment buildings
what's the problem with putting all the residential properties together? because apt's are "parasites" and they "soak up the sun" and create noise and increased business, impair safety... density brings danger
if the guiding principle is that you must use your land so as to not injure another's use of his land, and we take as a measure against injury of the single-family home, it is inherently bad because
the single family home: why do we let the single family homeowners decide?
there are values that are given up by moving industry very far from residences, as well.
why can't we look to the judiciary branch to
how do weigh the interests of the community against those of the private landowner? in equity, there's not enough
where have we drawn a distinction between the system of rules and the application of those rules to an individual? nahrstedt: where the court said, the rule doesn't take into account your individual experiences, we're going to look at the rule as to its effect on the community as a whole and defer to the community's ability/desire to govern itself and give it the benefit of the doubt.
here, the community is the state via police power and it has given the village of euclid the power to enact a zoning ordinance, and the court says it's not its job to have to regulate balancing of those interests in the community. that's what legislatures do. this is a separation of powers problem.
the only question we have to ask is if the system of restrictions is reasonable v. arbitrary, just as in nahrstedt. justice stevens comes up with a lot of reasons... if you can come up with those reasons, then the zoning is probably ok. these are the days before strict scrutiny and rational basis, but this reasoning is closest to rational basis.
and so, now we have this...
is this ok that we set up our communities this way on purpose?
compare robert moses and jane jacobs, and the argument that saved greenwich village.
zoning ordinances reflect the attitudes of the community, and what we want our physical world to look like. after euclid, it is clear: these discussions do not take place in the courts, they take place in the community and are enacted through the legislature.
this can lead to problems and limitiations on use however. problems impacted by circumstances not covered by the zoning itself. but there are two possibilities not in line with the zoning ordinances:
1. variance.
2. forebearance, such as grandfathering in zoning ordinances or permitting certain uses neither permitted nor forbidden to continue/begin if certain conditions are met
3. individual dispensation, as we will see in commons...
commons v. westwood zoning board of adjustment
the commons own a parcel of land but the zoning ordinance says that you can't own a home on a parcel of land under a certain size. there also has to be a certain frontage for what faces on the street. the lot is just too small for a house. the commons try to sell the land and that doesn't work. the neighbors aren't willing to sell to enlarge the property. the neighbors won't buy at a fair price. then they petition for a variance, stating an established hardship and the city zoning board finds that a) the commons didn't establish the necessary hardship and b) granting them a variance would substantially impair the intent/purpose of the zone planning because they say so. the commons appeal to the new jersey supreme court...
state v. shack is an NJ case
NJ coalition against the war case
public dust trust case
... NJ is a hotbed of progressive judicial rule
the court looks at the statute and determines what the zoning board has to consider, positive and negative criteria (and the party has the burden for both)
1. (negative) undue hardship
2. (positive) the variance would not be detrimental to the public good nor impair the intent/purpose of the zoning scheme
how do we know if there's an undue hardship? how do we determine this?
* did the property owner create/self-impose the hardship (put himself in a nonconforming position)
* efforts that the property owner makes to bring the property into compliance
in this case...
point 1, the negative:
at the time the lot came into being, the size restrictions were not in place.
the zoning arose after the parcel was designed. and that is a finding in favor
of undue hardship, because the appellant didn't create the position.
secondly, the commons tried to sell and the neighbors lowballed to the value.
the court considers the property with a variance: why is it doing that???
to make sure that the land has some value in light of the holding.
but absent a variance, is the land unfit for effective use?
there are houses in the area that are on parcels of land this same size but
they are before the zoning ordinance. that shows that the land could
be used for the physical conditions of the land. is it reasonable to tell
the commons that they cannot build?
point 2, the positive:
the house being proposed would be in the same range as other houses in the neighborhood, thereby it would not bring down the value of the other homes in the area. why would we allow certain interests to outweigh the others? why should we allow the community to say, "sorry, we've already established our homes and our aesthetic and we don't want to allow you to change it?" what if we decide we just... don't like our neighbor's house?
so why do we ever allow conditions where there is an undue hardship such as this? should the burden always be on the nonconforming owner? in reality, there is the same effect as if there had already been a taking.
are the negative criteria met? we don't know. because the court said that both parties needed mroe evidence -- zoning board was conclusory, and the facts alone are not sufficient for a determination.
in both euclid and commons, there is a foresight to eminent domain...
imagine a situation where the community says, "sure our decisions are gonna take away the value of your land." in this kind of regulatory taking, there may be a constitutional issue under 5th and 14th amd't issue, and the gov't may be required to provide fair compensation for the taking.
next week, we're looking at the question of whether or not the neighbors/community bear the burden of noncomformity. if zoning ordnance imposes a burden on a nonconforming parcel, but we find that the parcel is an undue hardhsip on the community, the public will take. the public at large will get a benefit from the improved land but will have to pay for it... that may not be a good thing.
eminent domain.
there are two fundamental rights arguments that the court rejects:
1. education... education is a caste system in america, the slope is analogous to race in that if your district chooses who/how education happens then
2. ... uh... didn't catch this one
think in equal protection terms, but don't collapse into due process doctrine.
what's the equal protection clause issue that education should be treated as a fundamental right?
once education has been granted, it can't be taken away from people. and it is essential to the participation in democracy.
harper.
heart of the warren court, and probably it's strongest liberal moment because this is about civil rights... not a money thing, but probably more a 15th amendment racial issue: jim crow segregation embedded in a statute.
harlan says that the tax passes rational basis. but what's the problem with demanding more doctrinally?
the word equality is being thrown around a lot -- but what's the test and the standard?
why is this something that crosses the line?
crawford v. marion county
what's the test, what's the doctrinal distinction to require
why do equal numbers of voters need to be delegated to each district?
bush v. gore:
once the right to vote is set up in a state, the right has to become fundamental.
so what's the qualification? how can some people's votes count more than others'?
because "undervotes" that were counted as blank and "overvotes" that were counted twice churned through those quickly and there was not a single standard for the voting process.
what is the remand argument for the decision (equalize the process)? the process is too difficult to equalize.
access to the courts.
griffin v. illinois is the starting point.
if a state offers access, it can't be limited by for example your ability to pay the court slip, etc.
why is this an invidious wrong?
travel.
... i missed this.
speech!!!
so, what's the big deal about speech?
speech really matters, so there's no rational basis for the test.
"nonspeech" is stuff that the gov't can totally disallow if they want
then speech is
but the text says "congress shall make no law"... isn't that a flat out fallacy then, to allow congress to modify speech and its rights if C says you can't???
us v. playboy
content based: law is aimed at the subject matter, on the part of the regulator.
doesn't have to be pro or con -- just focused on the subject matter (viewpoint based)
viewpoint based regulation is always content based (but content based doesn't always have to be viewpoint based)
what does the state have to prove?
1) no alternative or less restrictive method tailored to achieve the government's purposes
2) the government's interests
so here...
1) protect people from offensive and immoral speech.
2) protect children from smut. it makes us feel virtuous.
1: as far as speech offending, the court says that you can never not offend someone with speech, so that can't be a compelling interest.
2: protecting the children -- that isn't enough of a reason for this regulation when there is more narrowly tailored/ less restrictive activity to meet these interests
hypo #1. arthur is a paranoid schizophrenic, with a particular obsession with fruit. he comes to believe that his mother's head is actually a melon. and he believes that as the result of genetic engineering gone bad, the melon is growing and will not stop. eventually, it will take over the house. so he carves up the melon.
actus reus: arthur caused the death of another person.
voluntary? YES -- he intended to carve up (a fruit that he even knew was) his mother's head.
mens rea: ...
as to common law:
defects of cognition (m'naughten)
1) does not know nature and quality of act
2) does not know the act is wrong
is there another way of defending?
mens rea: arthur did not know the nature or quality of the act he was doing, and couldn't have intended to kill another human being
hypo #2. bod is a ps who believes that his neighbor victor is controlling his mind with radio waves. in particular, he believes that victor is responsible for his mother's death, for his inability to have sex, and for his girlfriend leaving him, and that these indignitites are just a prelude to victor's ultimate plan, which is to kill bob and take over the world. so bob kills victor.
bob has a defect of cognition. does he know what he's doing? yes does he know he killed victor? yes does he know he's cause the death of another person? yes if he wants to assert insanity defense can he say i didn't know the quality/nature? no what can he assert if he wants to claim insanity defense? can you think of a different assertion?yes -- bob thinks he is doing something good....
hypo #3. charlie is a ps who hears voices in his head. the voices keep telling charlie "kill the president." he says no, that's wrong. but the voices won't stop. he goes and shoots the president. the voices stop.
does charlie have the correct mental state? yes does hie kno what he did was wrong? yes if he has only m'naughten test, he won't win? what insanity defense is available to him? irresistible impulse it's not that charlie doesn't perceive the world correctly, it's that he cannot control himself
defects of volition
3) act was an "irresistible impulse" ... what does this even mean?
hypo #4. dennis is a ps who suffers from a delusion about the particular actress. he thinks that he's become too plain and she doesn't love him anymore. he wants to be cool enough to get her attention again, so he kills the president.
did dennis intend to kill another person? yes
does dennis know what he's doing? yes
is it an irresistible impulse? no, he just refuses to be deterred
what defect is available to him?
defects (durham test)
4) act was the product of a mental disease or defect (just, he's crazy!)
under durham, all you need is a link between the mental illness and the crime...
hypo #5. edgar is a construction worker who as a result of a head injury has become a sociopath with an increased mental defect. one day when edgar is walking down a subway platform as a train enters the station, he rougly pushes a child out of his way. the child falls on the track and is killed by the passing train.
what did he do? push a kid
mental state? reckless/maybe knowingly but not really intent
is he guilty of a manslaughter?
can he assert insanity defense? he has a mental disease caused by traumatic brain injury. which form of the test would work for him?
did he understand the nature/quality? no
did he know he was pushing a little girl? yes
did he know what he was doing was wrong? yes
was it an irresistible impulse? probably not (not thinking "i gotta go push a girl!")
was it a result of his mental disease? yes
to the extent you feel sorry for someone, it effects your retributive decisions. however, the impulse to punish is still largely utilitarian: to quote rich campisi, "we don't care -- we need to protect society, it's difficult to draw lines, and if we're overly broad we will have slippery slope arguments abound."
however, we still do give a defense for insanity...
the bottom line is that we can argue it if there's a mental disease/defect... what's the retributive effect there?
the definitions come from doctors, who could care less about whether or not people are blameworthy. instead, they are looking for how to treat and heal.
but we are using the definitions to impact punishment and blame...
(con) utilitarian -- prison is more cost effective
(pro) retributive -- they have low culpability
(pro) utilitarian -- protect defendant from prison inmates
(pro) utilitarian -- some people are not deterrable
(con) utilitarian -- you can deter caregivers from enabling...
but understand the weakness: the fear your child could kill
someone is powerful enough deterrence and probably won't
additionally impact
(con) retributive -- harm!!!
the two major pro arguments: insane people have low culpability and are not deterrable
the major con argument: HARM
hinkley. attempted murder. what's the typical sentence? 10 - 20... he's been in civil commitment for 30, and he's not getting out
the oldest state supported
the court calls the state out on the made up interests of opposition.
how would having a woman in the position screw things up?
it's not that the plaintiffs couldn't, they wouldn't be adversarial to women.
the arguments are funny cause they are pointing out the exact
"find the stereotype" analysis.... do we think that that would be stable? a way to get to more non-suspect views about men versus women.
an interest in differences between men and women...
single race schools -- we know that we're in strict scrutiny.
but what about single sex schools?
the principle of single sex schools is only principled, until you start drawing the line.
o'connor says you're engaging in stereotype in VMI (though she doesn't feel that way about racial scrutiny)
illegitimacy.
the court has also assigned intermediate scrutiny to this as well.
fundmental rights.
the others:
- the right to vote
- independently protected constitutional liberty
- access to the courts
two points where gov't interest comes in:
strict scrutiny of activity that affects suspect class
fundamentalism... why???
maybe because it's a big project to get the gov't held to put education, housing, medical care would take soooo much more time and thought to evaluate if they were held to the level of strict scrutiny, unlike the fundamental rights and suspect class.
looked at covenants, and how they are enforced against successors.
then, injunction -- we didn't have to ask what type of privity was available. we don't care what is available in equity against the successor to interest in land held by the promisor.
we discussed why we might want to enforce these types of promises, and what we came to was that the decision of not/enforce comes down to who determines how the land is used.
land lasts longer than we do. the question is whether interests that arrive first/earlier in time have a greater say over interests that arrive later. that's what we mean when we say 'running with the land' -- decisions made in the past are going to bind us in the future even if new interests arise.
that may seem abstract, but it is very important in common interest communities.
the equitable servitude that allows common interest communities spring up from the ruling of tucks v. moxhay.
equitable servitude: elements
1. for a property to be held in ES, OPPs must have intended to be enforced by/against successors.
2. if the party against whom sought is a purchasor as opposed to a grat successor, then the purchaser is not bound by covenant unless he has notice (**the recording system: we want to protect value against surprise** -- use the title record system; for example if you are buying a condo in a building where every unit looks the same, even if no covenant on record regarding the condo, you may be charged with being on notice about certain covenants about the building)
3. in order to run with the land, the covenant must "touch and concern land"
4. for the benefit to run with land, there must be vertical privity of estate on the benefit side.
the rockways;
neponsit property owners v. emigrant
neponsit created by real estate developer. the contractor filed record for the community he wanted to build. the plan provided for certain restrictions on the land, which is written into each deed that is given to each first purchasor.
the deed states:
1. charges to be paid to neposit and assignee, apportioned to the public portions of the property.
2. neponsit can assign to a HOA
3. lien against the land if you don't pay
4.
emigrant savings bank bought a property that was in arrears on its assessment.
the HOA asserts: "this debt you own operates as a lien on your property. we can sell the property (foreclose) and recover."
is this true?
let's look at the ES:
1. for a property to be held in ES, OPPs must have intended to be enforced by/against successors? yes -- it is explicitly stated!
2. if the party against whom sought is a purchasor as opposed to a grat successor, then the purchaser is not bound by covenant unless he has notice -- yes, because they saw the original deed
3. in order to run with the land, the covenant must "touch and concern land" -- that's the argument. the moneys collected will be used to touch and concern land that is the infrastructure of the property owners organization, which the association doesn't really own, it's part of the entire community's.
on the one hand, we have the argument "hey, this is just a promise to pay money. there's no T&C to the land, just a promise to pay for services."
on the other hand, we have to argument "but those services are what T&C the land, and that's what you were contracting for."
4. for the benefit to run with land, there must be vertical privity of estate on the benefit side.
the court says that the T&C test is about
everyone paying for the property increases the value for the burdened subsequent purchasor's interest in the land. but it also increases everyone else's interest in the land. reciprocal benefits that arise when everyone in the community subjects themselves to these burdens.
but what about the bank's argument? any affirmative covenant is a personal covenant/ covenant in gross, that is not succeeded because since it concerns to parties it doesn't T&C. you're not promising to maintain this infrastructure for yourself and neighbors every year, you're promising to pay money. that $4 a year (1911!!) doesn't really build any benefits for your community. it's only when you pay the assignee, they may use it for something that may eventually have some benefit to you.
how does the court deal with this case? the court says that it's just a technical difference between the HOA saying "give me money and i will do something concerning the land" and "i will do something concerning this land" -- the court says it is the same and is at equity at common law
but what is the neponsit doing? they are creating a private community, and collecting fees parallel to taxes.
who seeks to enforce against the other party (the benefit side)? who seeks the benefit of the covenant of this case? HOA
so, is there vertical privity of estate on the benefit side between the original promisor (neponsit) and the current party (HOA)?
who is seeking
what is this covenant about? how can you say you're predecessors to a privity in estate if you don't own the land. the HOA doesn't own the land, it is just expecting the homeowners to pay.
so we're looking technically -- there's no duty to pay, because the party on the benefit side does not have any interest in the land.
BUT...
the HOA is a tool used by the parties, a proxy. the people represented do have interest in the land acquired by the original promisee through a chain of voluntary transfers of estate in land.
rather than look at the formal relationships, we're looking at the practical relationships created from covenants....
if we're looking now at the functional relationships set up by these private interests by covenants enforceable in equity, are there any limits to how these parties can set up their affairs?
affirmative covenant (agreement to do something) v. negative covenant (build within a certain distance from the landline)
affirmative could become problematic because the fees could exceed the value of the burden taken on (for example, the property is only worth $5k but the fees are $1k/month) the way a negative covenant can't (the most you can lose is the exact value of the land)
the land as security = conversion to a lien enforceable in foreclosure
when looking at negative covenants, we can say that from an economic prospective, they are less burdensome b/c cthey can't create a breater burden, but they can create different burdens....
nahrstedt v. lakeside village
P says she didn't know about the covenants, conditions and restrictions (CCR)
one of the CCR is "no pets" and she has cats.
even though they are indoor cats, they wanted P to remove the cats. when she refused, they started assessing her fines, which can act as a lien on her interests in the condo.
so rather than wait, P sues and enjoins the assessments saying that the fees are incorrect under california statute that makes enforcement of certain CCR rules unavailable because the CCR is unreasonable.
how do we determine if a HOA's CCR are unreasonable?
- are they against public policy?
- are they an undue burden?
- are they unconstitutional or unlawful discrimination?
- are they arbitrary?
does it matter if the CCR are applicable against everyone, as opposed to just against the P?
yes!
- equal protection: the rule will be analyzed as a whole when challenged, and only if we see it's being enforced in different ways against different people we'll find problem with the rule
is this how the trial court viewed it? the tr ct said that the condo could prove reasonableness by showing that her specific cats somehow impacted everyone else in the condo....
basically, if these cats aren't bothering anyone, then the enforcement is unreasonable.
the other way of looking at the rule is to say that cats anywhere in any condo of the property is a problem and is enforced by the HOA.
the court basically says, well -- these are the private interests of the condo and so if you want your cats, you have to move. or if you want interest in the real property in this building, you have to do something else -- either get rid of the cats or continue paying the fee.
what if every condo in a fifty mile radius has the same covenant, or every condo in a fifty mile radius has the covenant where "no convicted sex offender can own interest in this condo building"?
- is it against public policy? is it invidious discrimination?
- are they an undue burden?
- are they unconstitutional or unlawful discrimination?
- is it arbitrary?
we're balancing the interests of the children and the interests of
the registered sex offender, in the interest of the children...
but what if *every* place has the same restriction???
to analyze, you're not looking at the particular facts: you are looking at the restrictions at their whole across the whole community.
coop is a situation where all the interest in the FSA is held by a corporation, and the shareholders are the residents. the residents don't own the property, instead they own shares appurtenant to a proprietary lease (the ownership interest is proprietary but it is still a lease of the unit in relation to the shares). the relationship between the owner and the community are governed by a hybrid of corporate and landlord tenant law. the rules that govern the common interest community can arise different ways:
- lease covenants (landlord/tenant)
- bylaws
- shareholders have a responsibility for maintaining the property (maintenance fee assessed against the shares in the property used for mortgage, super, taxes, grounds, repairs, etc)
-
40 w. 67th st. v. pullman
pullman bought an apartment in 1998, and immediately started causing problems for the community.
he is a troublemaker!!! how did he get in in the first place? he is a scion of the pullman traincar -- he's got this.
the board tries to restrain his proprietary lease, and it's a unanimous decision to make him vacate.
pullman ignores the notice and they sue him for a declaratory judgement cancelling shares and for use and occupancy, and attorney fees in removal, etc. all against the apartment that the co-op intends to sell, and will hand the remainder of the sales over to pullman.
the court dismissed saying that the board failed to establish an adequate factor from the statute on real prop and perceedings: "if a landlor wants to remove a tenant for being unreasonable, the landlord has the burden of proof."
but how do we analyze the decision "we don't want you here anymore?" the business judgment rule:
- not furthering legitimate interests
- in bad faith (you have to have a legitimate reason and can't be acting
in the furtherance of a discriminatory intent, malice, arbitrariness, or favoritism)
- not in furtherance of its corporate interests?
- was the board acting out of respect of its authority?
let's apply the rule to the board:
- not furthering legitimate interests
- in bad faith (you have to have a legitimate reason and can't be acting in the furtherance of a discriminatory intent, malice, arbitrariness, or favoritism): how do we know that the coop wasn't discriminating? how do we know that there wasn't malice or favoritism on the board's decisions?
- not in furtherance of its corporate interests? it was: the whole community voted unanimously that they wanted him out, but the court didn't ask a lot about this... what might be the furtherance of the corporate interest? the interest is choosing your neighbors
- was the board acting out of respect of its authority? the board has been given authority by the corporation and acted within its scope with the
all of our studies so far are
but they haven't been the right to decide who buys the lot next to you. if you own that lot, you get to choose who to contract with.
but here we're seeing a corporate interest that the law in real property otherwise would not have entertained.
nahrstedt -- restrictions on behavior, that can be analogized to police power restrictions
pullman -- common interests communities acting like mini-governments get opportunities to make decisions that we would never give at large otherwise
rights that can be exercised by private interests are new and different restrictions than we've previously thought about. but perhaps since we trust these decentralized communities and they are subject to market competition, we're willing to tolerate this kind of power....
but think about if this is a good idea:
would you be comfortable if mayor bloomberg did that? or if pres obama did that?
must be facing deadly force or serious physical injury.
common law
force:
(1) deadly
(2) imminent
(3) unlawful
belief:
(4) necessary
(5) reasonably
NYPL
belief:
(1) reasonable
(2) necessary
force:
(3) imminent
(4) unlawful
(5) deadly
exceptions:
1. aggressor rule: if you start the fight, there are limits to self-defense common law: if you through unlawful act..., can't use self-defense NYPL: initial aggressor -- any standard MPC: intent to invoke serious physical injury
exception to aggressor rule is the renunciation rule --
what does D have to do to make himself not aggressor anymore?
retreat rule -
castle exception: but even here, there's differences in the doctrine
NYPL - english rule
other jurisdictions - the true man rule
so, back to bernie goetz...
it's 1984.
goetz boards a 2 train, from 14th to chambers st.
the youths ask for money, goetz shoots at them.
the question: how do we define reasonableness?
the reasonableness requirement
NYPL: in NYS, how do we define reasonable? see NYPL 35.15
NYPL: "s/he reasonably believes" (OBJ) MPC 3.04(2)(b): "the actor believes" (SUB)
back to goetz...
on the basis of the facts of the case, do we really think that goetz subjectively thought that deadly force was necessary? if it's subjective and he says "yes", he wins.
under MPC, it would have played out like this:
goetz would have said, "well subjectively i thought that i was in such danger that i had to act (see april 7 notes: goetz was that racially crazed)"
now we turn to MPC 3.04(2)
do we just allow anybody who believes that deadly force is necessary to kill?
we then to MPC 3.09(2) which is a limit to 3.04: "if the actor is reckless
or negligent in having such belief"
if goetz is reckless and negligent in his belief, the defense is unavailable to him.
but now, we continue MPC 3.09: "in a prosecution for an offense for which recklessness or negligence, as the case maybe, suffices to establish culpability."
MPC mental states:
murder -- P or K
manslaughter --R
negligent homicide -- N
3.09 says "reckless or negligent" then the defense is unavailable. if you're N in believing that you need to use self-defense, it's unavailable for negligent homicide. if you're reckless, it's unavailable for manslaughter. but what about murder???
let's say that the jury opinion is "goetz should have known..."
the jury opinion is that he is crim N.
let's say the jury "goetz was reckless"
the jury would convict him of manslaughter.
in NYS, the NYPL 35.15 will make him guilty of murder.
what's the policy argument behind this? what's the reasoning for the MPC?
the MPC is entirely based on retributive culpability:
it is trying to exactly match the conviction with the mental state.
this is 2.02 of the MPC!
what is the NYPL approach? we'll look at the exact flip side:
utilitarian argument - an innocent person is dead, and this statute
prevents people from acting recklessly, especially to use deadly
self-defense.
harm - the harm is extremely serious
we have one approach to reasonableness, you are or you aren't:
we want to deter mistakes!
what's the criticism?
you can't deter mistakes.
the rebuttal?
you can't deter mistakes, but you can make people think twice. think about stat rape: there's some worry about over deterrence, okay... do we want overdeterrence here?
the MPC is often called "imperfect self-defense":
reckless = manslaughter
negligence = crim homicide
therefore, it's not really subjective...
back to goetz.
"a determination of reasonableness must be based on the circumstances facing a defendant or his situation" where else have we seen this language? extreme emotional disturbance
so let's look at bernie's situation (remember that this case was pretried):
at this trial what should/not be considered part of the situation?
- prior muggings
- physical attributes of defendants
- the number of "attackers"
- age (much younger than bernie, more fit and healthy)
- race (not as much of a factor, why?
- gender (girls wouldn't have been feared as much as boys probably)
should race matter?
racial paranoia.
what is the difference between the simmons case (the thought that the asian guy down the street was a shaolin who would kick his ass), goetz (i'm surrounded by black youths on the 1980s subway train)
like with rape, do we want people's typical belief that is widely held but wrong to be allowed to be used as a standard for it to be considered "reasonable"
** the more you want to subjectify, the more you're focused on culpability. do we want to allow that?
the utilitarian argument is that this is such a severe harm presented from acting as a vigilante. the deterrence element is particular.
how much do we subjectify the objective standard?
how do we evaluate the culpability of someone who does something really outrageously but with the intent of doing something for a utilitarian reason, or subjective belief of harm?
in manslaughter, we saw extreme emotional disturbance.
in rape law, we see culpability and harm trying to push social understanding of the crime.
here we're looking at similar things with self-defense:
so much of it is about race --
the object of the subjective question often extends around race!!!
state v. norman
is the history of abuse between them a reasonable factor to determining the subjective belief of necessity of the self-defense? of course! are her experiences relevant as a objective standard? absolutely but... what about the belief that she couldn't get away/ call the cops/ etc? at the moment she killed him, was the threat imminent?
(n.b. -- regardless of how the jury is instructed, the expert testimony and the beatings would always have been entered to the case. becuase always have to prove that the defendant believed that there was a threat presented.)
1. everything assigned in class
2. rules (maj/minority, modern/classic,
3. any additional rules that may be applied
4. can talk about why we have certain rules and what the policy reasons for them are
easements
1. where the parties intended such a right to exist, from the relevant circumstances (van sandt v. royster: right to continue use of something that had been done before the two parcels were separated, a "quasi-easement") in this case we ask if we can infer that the owners of the separated parcels wanted the use to continue? what do we look to to answer this?
a. what was happneing when this parcel was split in two? was there already a use, such that there could be a continuation of the use (cause if it hasn't happened yet, it can't be continued)
b. was the burdened party aware? if they weren't, we can hardly say that they intended to have the easement.
c. is the use permanent or intermittent? we don't consider non-permanent use to be an easement.
d. was this use necessary to the enjoyment of the dominant tenant? if it's not really necessary, maybe it's not so clear that the party taking title to the dominant would have relied on the subserviant tenant in the way it was being used when the two parcels were split.
other factors from the restatement may comein to play, but basically come to whether or not the two parties intended uses on the two parcels of land to continue.
for example, we construe against an easement more for the grantorr than grantee, has to do that we expect people to write stuff out (put it in the deed, and if you don't we may be more skeptical of what you say)
we may require the degree of necessity etc, to make up for this (see the restatement on real property!!!)
othen v. rosier
claiming the right to use a right of way through the rosier's property.
the parcels were once owned by a common grantor (mr. Hill)
the right of way is a necessity and not a convenience
that necessity to traverse the allegedly subservient estate existed at the time that the two estates were subdivided from the original common parcel
othen wasn't able to prove a common division from the estate: to prove that the owner of the 100 acre provision had to traverse, we would need to know about the surrounding land. we don't know what other options were availalbe, and so we can't say taht the right of way was a necessity. additionally, the 16 acres in front were
you can't create an easement in land you own, so the 16 acres in front do not have an easement for him that way.
however, there may be an easement by prescription, which is similar to adverse possession.
via use through the statutory period, adverse possession may satisfy the requirements for an easement interest.
the use is continuous.
it is an open and notorious use of the land.
is the use exclusive? no...
but if it's exclusive, you don't have an easement you would have adverse possession: we would be saying that you are now the possessor of the property interest in question.
should there be any difference between exclusive use and exclusive possession?
there's a possiblity to call it open and notorious but still not permissive. however, the court didn't see it this way here, the court still viewed it as not hostile.
the court doesn't want to allow othen to combine the periods of use because it's not proven that the road is the exact same that was created and used prior to the upkeep maintenance .
what should be done?
1. maybe the answer is the market -- you could bargain for a position to use the right of way, or bargain with a neighbor to create a
on it's face this seems inconsistent with the open and notorious requirement, to say that the use hasn't been exclusive even if concurrent with the owner of the subserviant estate.
think of suburban common driveways -- the courts are not always aligned on how those cases will come out.
covenant enforceable at law.
covenants are like contracts, if they have consideration.
but in real covenants, we're speaking about promises that are sought to be enforced by a damages award.
land lasts a lot longer than people's promises do. the land may have passed to a successor, and the promisee may pass the land to a successor... so then are the promises still enforceable for action for damages when there is no contract between successor parties?
as to a contract, we can't say that one has consented to the other or that one has relied on the other, as we do with contracts. there must be some other reason as to the binding and enforcement. we do this through...
privity!
privity of contract: A and B have a contract of how to use the land, that's enforceable.
but that's nto necessarily true to someone you sell/pass the land to.
though we woud want for it to be....
so in order to get at this problem, the common law created a series of complex rules:
1. in order to determine if the successor is liable, we ask if the burden of the covenant runs with the land. the burden of the covenant will be enfo at law only if there is horizontal privity to estate (made in an insturment that made an interest in the property, not just a contract but a deed or covenyance of real prop that included this covenant to be enforced. this is a differnt privity than we're used to seeing in adverse possession with tacking or landlord/tenant law with assignment... totally different! horizontal relationship is how the interest came to be: if the interest came to be throught he intsrument conveying interest in the estate in land. but if there's not, there's no legal interest in the estate in land passing betwen the parties so no privity that will suffice. horizontal privity of estate is important to determining whether the burden of the covenant will run at law. if there's no burden, then there's no successsor who will be boudn by the promisor! that's not true with respect to the benefit --
2. in order to determine if a successor to the beneficiary, we ask if the benefit runs with the land.
in determining the benefit parcel, we don't care about privity of estate.
problem.
A and B are neighbors who plan to restrict to sengle family use. sing a promise: A to assign to her heirs for isngle family purpose only. recorded nder the name of each signer.
we have a promisor and promisee. does their agreement (consisting of promises of how to use the land) made in an instrument making an estate in land? NO
are A and B making a life estate? NO, this is just a contract.
B sells to C who builds an apt building. A sues. what result?
if C is to be bound by the promise of the predecessor, does the burden run from B to C? this is the party against who enforcement is sought. so does the BURDEN run at law to this party (B/C)?
1. was there horizontal privity of estate between A and B? if not the burden cannot run. this interest was not an estate in land. so there's no horizontal privity/ no burden running with land at law.
A and B make their promises in instrument not conveying interest in real property. B sells to C. A acts in violation. C sues to enforce promises against A. what result?
C did not create the promise, A did. C is seeking to enforce, does the benefit run from B to C? yes.
this is the party seeking enforcement. so does the BENEFIT run at law to this party (B/C)? yes.
1. we dont' need horizontal privity for the benefit to run... why??? because A made the promise, and so there's not as much trouble enforceing the promises of the person who made them. whereas it's difficult to enforce promises of people who didn't make the promises, but upon whom promises were conveyed.
vertical privity of estate: this is more like successor privity relationships, like howard v. kunto (tacking with respect to the same piece of land). we are asking whether the successor to the burden parcel has succeeded to the same estate owned by the original promisor. if so, the burden will run to those successors... what does that mean. if the sucessor aginst whom sought has gotten a portion, like LE or DF, doesn't run to the same estate. for the benefittor, the rules are more relaxed as well -- we are only asking if the successor has succeeded to any part of the original parcel, in which case the owner of that parcel has standing to enforce the covenant. hwoever, adverse possession still doesn't give you standing on either side because it's considered a new source of title to which covenants woudn't have been made.
somewhat rare, not typical that these will be sought in covenants enforceable by law. instead, injunctive relief will be more expected. still, we gotta know this...
tulk v. moxhay
moxhay wants to build and tulk sues for an injunction on the ability to build on the garden in lester square.
rules to vertical privity estate (england only has this between landlord and tenant, not even as broadly as we do). in law of england, can't say that the privity extended from elms to moxley.
what is the court to do? court says moxhay, you knew that you would get this land for less because it was encumbered upon. to now turn around and say that the promises dn't encumber the land, is unfair. but this is only true if everyone's expectations were that the promise was enforceable against him -- but if the expectation wasn't a function of the promise, and didn't create an encumberance then this is
3d party beneficiaries: the interests of others who have relied on the square being open must be looked at. why? because tulk owns the land around the area, but doesn't want to own the garden to maintain it.
why would anybody buy the garden instead? it holds value, because the property has a provision for the collection of rent from the surrounding inhabitants for the use of the garden.... tulk is basically conceding the ownership of the land.
fairness: it's unfair to allow moxhay to get the land at a discount with an encumberance, but then not to reap the full value of hte land. the grantor of this land extracted a promise, and is enjoying their property on the reliance of that promise. allowing the purchaser to use the land as he'd like irregardless of the promise, then that's against the covenant. and that's not fair to anybody...
so this case is not really about fairness or about the doctrine.
the uses of one piece of land can have an effect on the value and usage of neighboring pieces of land... but so what?
there's a right to build and to move forward. the person who wants to not have a build (tulk) and then a person who wants to build on the land (moxhay). and the promise to keep the property to not be built on has value -- but if the subsequent persons don't have a value in that promise then what does it matter?
what would be the effect of saying it's not unfair to let the promisor to go back on the promise? would anybody ever accept such a promise as conveyance of real property? -- yes
covenants are different than other dispositions to the use of property after the original possessor is gone! allowing people to control the uses to the land that they convey/sell/etc. may build on people's comfort to convey.
eventually, tulk or his successors sold the injunction right to the party who wanted to build, which menat that nothing stood in the way of leichester square becoming a big mall. so the public wanted moxhay to create a public park in 1974.
why do it in 1874 instead of 1848? because we are respecting private parties and their decisions.
but moxhay was a private party: why are tulk's private intentions more important than moxhay's? because moxhay bought certain rights and bargained for certain things. he was on notice.
why would it be so bad if it had remained private property instead of becoming state property? if it's private it's for the subjective interest of the private owner and public property -- for all the people who live near this -- their property interests may be affected.
this debate is over the locus of control, not a debate over what's fair and efficient, just over who gets to decide how land is used. this case is a discussion of who gets to decide how resources will get used.
these are the issues of the rest of the course.
till now, we've been talking about two extremes
1. private interests
2. interests of society as a whole
now we're filling in the interest details...
the authority to regulate the uses of property come from the state and from private parties:
- zoning
- takings
-
servitudes continued:
- p. 798 - 815
- p. 40 W. 67th st. v. pullman
- p. 821 - 841, 849 - 857
A has no claim to damages because there is no covenant running with the land, and so there is
