Monthly Archives: December 2011

Are Law Students Getting Screwed?

Don’t miss the long, controversial story on law school accreditation in today’s N.Y. Times — David Segal, The Price To Play Its Way, New York Times, December 18, 2011, at p. 1 (Business Section). Reduced to its essence, the point of that article is that as practiced today, the ABA process of law school accreditation is needlessly elitist, overly expensive, and it often puts legal education beyond the reach of many worthy young people who would make fine lawyers and as such contribute to society, but who instead are kept out of the profession altogether, or graduate from law school with student-loan debts running into six figures, which distorts their lifestyle options and career objectives, and forces them to spend years, if not decades, with a financial monkey on their backs.

Our favorite passage is the Times’ report of the ABA’s defense of its restrictive practices, namely that the ABA does not intend to raise the cost of law school or to limit competition. Rather, its purpose is “to ensure that lawyers are well trained and that the public gets quality legal services.” Oh yeah? Just you try taking that position inside a law school faculty and you’ll get the haughty response that “We are not a trade school!” But if not a glorified “trade school” striving to train future members of the legal profession, then what is the primary function of a law school?

Besides, isn’t it the purpose of the bar exam to insure that fledgling lawyers graduate from law school posessing the minimal qualifications required to practice law and protect their clients’ interest with competence? Which is interesting because as all law school insiders know, law faculties take pride in the fact that they do not prepare their charges to pass the bar exam — that job falls to the many private bar preparation courses that offer their services to law school graduates. As Dean Erwin Chemerinsky of the University of California Law School put it recently, they see the law as a vehicle for “change,” even though they never tell you how they really want to change the American legal system and through it American society. And here we thought that the primary purpose of law is to insure a modicum of stability, so people can go about their business without spending fortunes on lawyers and on endless litigation over what conduct is permissible and what isn’t.

In case any of our readers are interested in legal archaeology, your faithful servant went to law school in the olden days (the late 1950s) when it was possible and common that law students were on a pay-as-you-go basis, and graduated debt-free. Many held down jobs while going to night law school. Which in our case, sure broadened the professional options available to one, and didn’t hamper our career or level of professional accomplishment one iota. If anything, our real world experience opened legal employment opportunities not otherwise available to kids who graduate from law school without having ever held a real responsible job, and without having any knowledge of how things are done in the real world, to which the law needs to be applied, and who are not able to bring maturity of thought to their legal tasks.

There is much that can be said on this subject and we are sure that much will be said about that Times article. So you ought to read it for yourself and make up your own mind. Click here.

Not With a Bang, But a Whimper — Lawsuit Against Eminent Domain Critic Carla Main Dropped

Reason magazine,  (click here)  reports that what was left of the lawsuit against Carla T. Main, author of the acclaimed book Bulldozed: “Kelo,” Eminent Domain and the American Lust for Land (Encounter Books 2007), has been dismissed by the plaintiff, a Texas developer, who sued for defamation when the book came out. The book was critical of a Texas redevelopment case seeking to take the land belonging to the Gore family in Freeport, Texas. Jacob Sullum, Developer Who Sued Author for Criticizing Eminent Domain Abuse Drops His Case, December 12, 2011.

The Texas Court of Appeals threw out most of the suit earlier, holding that Main’s writing was protected by law as legitimate cricism of government. Main v. Royall, 348 S.W.3d 381 (Tex.Ap. p. 2011). Now the whole shebang has been dismissed.

By the way, apart from her book, we recommend Ms. Main’s earlier article on eminent domain, How Eminent Domain Ran Amok, Policy Review, October & November 2005, at p. 133.

Why People Are Leaving California

We offer without comment the dispatch from the Santa Monica Daily Press of December 16, 2011, Ashley Archibald, Council Approves Small Apartments With No Parking, (click here) reporting that the city council has just approved the construction of a downtown 56-unit apartment house, containing 48 studios that will rent for $1750 per month for a 360 sq. ft. studio unit, without parking. We have trouble believing it, but what do we know?

For our earlier post dealing with why folks are leaving California, click here.

Follow up. Evidently, we aren’t the only ones worrying about this topic. On January 28, 2012, the Federalist Society will hold its Sixth Annual Western Conference, dealing with “Challenges Facing California and the Western States,” at 10:00 AM to 4:00 PM, at the Ronald Reagan Presidential Library in Simi Valley, California. The featured panel, consisting of Chief Judge Alex Kozinski and Judge Stephen Reinhardt both of the U.S. Court of Appeals for the 9th Circuit, will address the topic of California in Crisis: Are People and Jobs Leaving for Better Pastures?

Meaning no disrespect to their Lordships, the answer to that question is a resounding “Yes,” the rest being commentary on how many Californians are splitting la-la land, and at what rate. Could it be that the clowns running Sacramento have at long last rendered California ungovernable? But be that as it may, both these gents are pretty smart and can be pretty funny, whether you agree with their widely differing views or not. We have seen what we irreverently call the “Steve ‘n Alex Show” a number of times and we recommend it, no matter what the topic. The program will also include a bunch of other distinguished speakers.

Altogether, sounds like a worthwhile way to spend a Saturday.

China Again – The Los Angeles Times Wakes Up

Evidently, proceeding on the premise that better late than never, the L.A. Times is finally reporting on the Chinese Wukan land seizure controversy in today’s issue. Barbara Demick, China Fights Back Against Land Confiscation, L.A. Times, December 16, 2011, even if the story is tucked away on p. A7. Click here.

Apart from a summary of events already reported by the NY Times and commented on in this blog (click here ), we learn that the Chinese protests involve more than just parading and picketing.  “[V]illagers in late September destroyed a restaurant and pig farm that belonged to a Hong Kong developer and vandalized local government offices.”

The L.A. Times also provides us with an insight into the financial aspects of this controversy.  It reports that whereas  in 1998, local governments reaped $70 million from resales of seized village land to developers, last year that figure soared to $470 billion (with a “b”). No wonder the comrades have stepped up the incidence of theft, thereby giving a new meaning to the term “kleptocracy.”

Finally, an interesting postscript. It turns out that in some ways the Chinese redeveloper/kleptocrats are no different over there than they are here. These takings are usually accompanied by projections of job creation, etc. But in the event, job creation is minimal and “mostly it was just for luxury villas that didn’t create jobs. The people did not benefit.”

Follow up. The New York Times is not giving up on this story and has followed it up in today’s paper – Michael Wines, Revolt Begins Like Others, But Its End Is Less Certain, N.Y. Times, December 17, 2011, at p. A6. Click  here. What we learn from it is that the Wukan villagers “became so angry that their deeply resented officials — and even the police — fled rather than than face them. Now there is a striking vacuum of authority, and even the villagers are not entirely sure what to make of their fleeting freedom.”

Finally, and most uncomfortably, what emerges from this Chinese brouhaha is a demonstration that there are features of the Chinese donnybrook that bear an unpleasant resemblance to features of our urban redevelopment. There is a cozy, crony capitalism relationship between favored Chinese [re]developers and government officials, that is not altogether dissimilar to our urban redevelopment process. By saying that we do not wish to emulate the idiots who are ever-ready to malign the United States by suggesting that it is like this or that totalitarian government. It isn’t. But in the last half-century, some features of our eminent domain law, particularly as applied to urban redevelopment — notably the U.S. Supreme Coirt’s abandonment of its proper role in applying the checks and balances doctrine to eminent domain — bear an uncomfortable similarity to what is going on over there, where humble Chinese peasants are realizing that no one will protect them except themselves, and are beginning to emulate the 13th century Englishmen who confronted King John at Runnymede and forced him to sign the Magna Carta.

People are territorial creatures and anybody who messes around with their turf is looking for trouble. That has been the case in several countries, as we note every now and then in this blog. That it hasn’t happened here yet, is no guarantee that it won’t happen. Over here, public sentiment against promiscuous use of eminent domain, that makes  a mockery of the “public use” limitation on takings, particularly when it favors well-connected fat cats is running high . We certainly hope that this resentment falls short of physical confrontations, but no one can guarantee it.

California Bullet Train — Impossible as Designed

The latest on the misbegotten San Diego to San Francisco “bullet train” whose projected cost has soared to north of $98 billion, turns out to be that it is an engineering impossibility. It turns out that there was some sneaky fine print in the proposition submitted to the voters authorizing it. It mandated , and still does, that when operational, the train must travel from San Diego to San Francsico  in 2 hours and forty minutes. How come? Because, according to the Los Angeles Times, a fellow whom the Times identifies as Mehdi Morshed, “the longtime chief executive of the rail authority who retired last year after a 30-year career promoting high-speed rail,” admitted to the L.A. Times that he was “the one who insisted on putting the times in.” Ralph Vartabedian and Dan Weikel, Bullet  Train Travel-Time Mandate Addso Ballooning of Costs, L.A. Times, December 15, 2011, — click on,0,1729184.story.  But it turns out that if (as presently contemplated) the route is laid out through Palmdale, which will result in a “dogleg” taking those trains out of the way eastward instead going straight north along Interstate 5, a 2-hour and forty minutes travel time is not doable.

And as if that were not enough, it also turns out that in a recent poll, a majority of California respondents indicated that they would like to see another vote on that train thing, and of those, a majority indicated that, evidently having learned the true cost of this caper, they would not vote for it again.

Your tax money at work.

Follow up. For an L.A. Times discussion of the high speed rail controversy, complete with charges of improprietioes, click here.

China – Violence Over Land Seizures Continues

The BBC News Service reports that the confrontation between the Chinese authorities and and villagers in Wukan continues. China Protest Worsens in Guangdong After Villager Death, December 14, 2011. New protests broke out several days ago after the death of a villager while in police custody. The protests broke out over the authorities takings of villagers land in order to convey it to [re]developers. The reason for such rioting is that when villagers’ land is seized, the “compensation” they receive can be a joke. The Chinese authorities calculate it not based on market value, but on the income the seized farm produces, which, given the prevailing low standard of living over there, and the increase in the highest and best use when the land is reclassified as usable for intensive development, can be as little as 5% of what the local officials charge redevelopers when they reconvey the seized land to them – click here.

Shortly before midnight on December 14, 2011, BBC reported that news of these events disappeared from the web — web users seeking the Chinese site reporting these events get a message reading “According to relevant law, regulations and policies, search results for Wukan cannot be displayed.”

So if you ever needed an example of the interrelationship between property rights and other liberties, here it is: where private property rights are not secure, neither are other liberties, like freedom of speech.

And by the way, if you mean to do some surfing on this point yourself, note that though the BBC and the New York Times refer to the village in question as Wukan, others on the web use the name Wuhan.

Afterthought. We don’t know what took us so long, but it just dawned on us that this story has gone unmentioned in the Los Angeles Times. You can read there recent stories about a Chinese 90-year old reindeer wrangler, the air escaping from the Chinese real estate bubble, the Panda census, urban air pollution, and unrest inspired by general economic conditions. But we find nothing in recent L.A. Times coverage about the unrest inspired by land confiscation, even though according to the BBC there are thousands of the latter kind of protests in China every year. Interesting.

Follow up. Guess what? Unlike the L.A. Times, the New York Times features this story on the front page. Andrew Jacobs, Village Revolts Over Inequities of Chinese Life, N.Y. Times, December 15, 2011, at p. A1 — click here. This article reports more details than the BBC but it does its usual politically correct dance around the mulberry bush, and starts out by reciting that the Chinese are protesting “worsening pollution, claims of unpaid wages, or instances of police brutality.”  Only after reciting these politically correct causes, does the N.Y. Times get around to telling its readers that “A major source of unrest, including in Wukan, is the seizure of land by well connected private developers and government officials, which invariably involves forced evictions for meager compensation.”

We also learn from the NY Times that “Last year, there were as many as 180,000 outbursts of what sociologists here describe as ‘mass incidents: strikes, sit-ins, rallies and violent clashes that have mushroomed alongside China’s breakneck economic expansion.” 180,000 “outbursts” last year?!  That’s almost 500 per day, or 20 per hour. We flat-out don’t believe it, but if true, that means China is on the verge of a revolution.

Still, even if the real numbers are much lower, it’s a case of so much for the workers’ and peasants’ paradise. Even allowing for the disparity in the respective sizes of populations, can you imagine the Times’ response if other countries of which the Times does not approve, were to experience a comparable daily number of “outbursts’?

Man Bites Dog! California Property Owner Wins Regulatory Taking Case in the California Court of Appeal

It’s getting a bit late where we are, and our night-owl days are behind us, so we can’t go through the whole thing right now in the detail it deserves, but a California Court of Appeal just upheld an owner’s regulatory taking case – the court of appeal opinion may be found by clicking on Avenida San Juan Partnership v. City of San Clemente, Case Nos. G043479 & G043534 (4th Dist., Div. 3, Dec. 14, 2011).  Go to for a preliminary discussion by Robert Thomas. For a discussion of the attorneys fees aspect of this controversy click here.

The court firmly upheld the trial court’s finding of a regulatory taking (zoning a 2.85-acre parcel for one house per 20 acres, while surrounded by land zoned for four houses per acre, thus rendering the subject land useless and effecting a taking), but the case was remanded for the limited purpose of (a) allowing the city to choose between paying or deleting the confiscatory zoning, (b) recalculating valuation (which the trial court that arrived at it, itself characterized as a “lowball”) and (c) recalculating attorneys fees.

To the best of our knowledge, this is only the second successful regulatory taking case in California state courts. There is one more in the federal courts in California — the City of Monterey v. Del Monte Dunes case which was affirmed by the U.S. Supreme Court. In spite of the fact that la-la land is the largest, and the most stringently regulated state in the mainland United States, that has accounted for as many claims of regulatory takings cases in the U.S. Supreme Court as the rest of the country put together, there haven’t been any other successful regulatory takings cases. But lots of unsuccessful ones.



Eminent Domain in Taiwan

The Taiwan News reports that new legislation on eminent domain is pending in the Taiwan legislature, but if you have any visions of a benign new legal regime liberalizing the rules, forget about it. Lin Shu-yuan and Ann Chen, Farmers Say Draft Bill Fails to Address Land Expropriation Woes, Taiwan News, Central News Agency, December 13, 2011.

Hundreds of farmers who lost land to eminent domain “staged a quiet protest in front of the Legislature . . . as lawmakers were processing an amendment pertaining to government acquisition of land.” Their grievance is that the law, even as amended, unfairly favors condemnors. A professor from Shih Hsin University is quoted as explaining that the amended law still allows expropriation at will, although it requires that any land expropriation be “in the public interest.” But that, says the Professor, does not take into account public opinion of what constitutes “public interest.” The definition of “public interest” will be left entirely up to the local government. Which is not unlike our law where the determination of “public use” by a condemnor, according to our Supreme Court, is deemed “well-nigh conclusive.”

As for compensation, the new law does not allow appraisers to determine market value, and this leaves the government with the right to acquire private property at what it deems to be fair market value. It also contains no provisions for relocation assistance to displaced condemnees — it only allows allows such payments to “people of low-income groups who have no alternative place of residence.

Conclusion: the protesting farmers intend to continue their sit-in protest “until their voices are heard.” We wish them luck.

Lowball Watch – New York

The New York Supreme Court for Rockland County handed down a decision in AAA Electricians, Inc. v. Village of Haverstraw, Index No. 6169/03, December 9, 2011, involving the taking of an 18.9-acre riverfront parcel (0.5 0f an acre underwater), with the figures as follows:

Prelitigation offer – $2,596,150

Deposit – $2,596,150 (plus interest at 6%, for a total of $2,631,429.19)

Condemnor’s trial testimony – $1,000,000

Court award – $6,500,000, plus interest

That comes to 6.5 times the condemnor’s testimony, and 2.5 times the pretrial offer.

In an interesting side isse, the court granted the owners’ motion for sanctions because the condemnor’s appraiser did not retain copies of his draft appraisal reports as required by USPAP rules. The sanction: “the Court elects to accord an adverse inference with regard to the destruction of prior draft appraisals. . .”

Note that in New York, as viewers of “Law and Order” know, the Supreme Court is a trial court; the lowest court of general jurisdiction. What the rest of the country (save Maryland) calls the Supreme Court, New Yorkers call the Court of Appeals. And what everybody else calls the Court of Appeals, they call the Appellate Division. Go figure.


Where Are All the Kelo Fans Now?

The Washington Post brings an interesting dispatch from the Middle East. Joel Greenberg, Israeli Plan to Move West Bank Bedouin Stirs Controversy, Washington Post, December 12, 2011 – click here.  The Israelis are talking about moving some Bedouin squatter encampments. They are described by the Washington Post as containing “about 2,000 Palestinian Bedouins living in the desert hills east of Jerusalem.”

“The hills are dotted with more than 20 encampments of Bedouins, formerly nomadic goat and sheep herders who migrated from Israel’s southern Negev region in the early 1950s to the West Bank. Their hamlets, consist…of groups of corrugated metal and wooden shacks covered with plastic sheeting. . .” (emphasis added).

So two things appear to be uncontested: first, that under American law those are slums, and as such ideal candidates for elimination and redevelopment, and second, that those Bedouins do not own the land in question, having moved onto it in the 1950s without claim of title. The Post does not reveal the nature of that land, but it appears to be so-called miri land — a type of state land, so that under our law one coulld not acquire prescriptive rights in it. So it would appear that those formerly nomadic Bedouins who have become squatters, have no property interest in  the land in question, and it is difficult to see how they get to object to being asked to move from land on which they are squatting. If this were our government-owned land, all those poor folks would get would be the back of Uncle Sam’s hand, and an order to move.

But, hey man, it’s the Middle East where according to the liberal American press (of which the grandees of the Washington Post are charter members) Israel is always wrong and the Arabs always right, even when they have no legal leg to stand on. Moreover, the plan is to move the squatter Bedouins from the area where some of their encampments are in army firing zones, or on state land that has not been licensed for construction, and move them to an area near the exurban town of Ma’ale Adumim where they would be able to build legally with access to water, electricity and government services.

This is bad? We wish we could get a deal like that for our clients who find themselves living on government land without any right to live there, and are told to move.

And saving the best (in a manner of speaking) for the last, wasn’t it the Washingto Post that in 2005 editorialized after Kelo that it was hunky-dory to kick out lower middle-class folks out of the homes they did own? And telling them to take a hike because the City of New London and the Pfizer pharmaceutical corporation wanted to make money by replacing their modest homes with upscale shops, condos and a five-star hotel, in order to reap the benefit of higher taxes and private revenues?

Moral: At the Washington Post it all depends on whose ox winds up turning on the spit.