Monthly Archives: November 2011

Extra, Extra! Read All About It. NY Times Says Law Schools Charge a Lot of Money But Don’t Teach Their Students How to Be Lawyers.

Today’s must reading is David Segal, What They Don’t Teach Law Students: Lawyering, N.Y. Times, November 20, 2011, at p. A1 – click here. Its point is that law schools don’t teach their students how to be lawyers. We noted the same thing a while back when we observed (in a law review article — forgive us!) that these days law school faculty members go on about the influence of Kant on the critical legal studies movement, while their bewildered students are surprised to learn that Kant was person, and otherwise have no idea wht the prof is talking about. But the profs blather on about the theoretical and historical aspects of the law, and spend their time writing incomprehensible articles about law that fewer and fewer people (except other professors) bother to read. And who can blame them? Would you curl up on the couch with a glass of wine and a copy of A Future Foretold: Neo-Aristotelian Praise of Post-Modern Legal Theory? No? Nor would we. And yet, such stuff fills thousands of pages of law journals, laying waste to forests chopped down for the paper consumed in the process, and taking big chunks out of law school budgets. Mind you, there may be a place for such stuff in university departments of philosophy, but not in law schools which take the students’ (and their parents’) good money (a kid can graduate from law school $150,000 in debt) but fail to teach them the skills necessary to become lawyers, some would argue that it often leaves them asking what types of lawyers would they be able to become under such learning.

The problem, says the Times, is that law faculties largely don’t know anything about the practice of law, because they have never practiced any. These days, a typical new law school faculty member went to an ipsy-pipsy law school where he served on the law review, then clerked for a judge for a year, and then either joined a law faculty, or spent a year before doing so, working for the government or in the bowels of a large downtown firm, doing mind-numbing crap so his time could be billed at several hundred dollars an hour to unsuspecting big-buck clients.

Now, it seems, the worm has turned and those clients are no longer willing to get billed for training fledgling big-firm lawyers — train your new lawyers on your own dime, they increasingly say to the law firms that handle their legal matters. The upshot, given the ongoing recession, is that big law firms are hiring fewer new lawyers, making prospects grim for all those kids who went into hock up to their eyeballs to pay for law school, but can’t find a position that is capable of providing them with an income capable of servicing their debt and leaving something for reasonable living expenses. And as we noted in this blog a while back, some of the routine legal work is being offshored to India.

So much for the nub of the Times report. But there is more. The article stresses the fact that these days law school faculties despise the practice of law. They see “law” as an ideological instrument of change, although you rarely hear them explain in detail what they want to change it to. “Change the system” has become a mantra among them anyway. Only recently, Dean Erwin Chemerinsky of UC Davis Law Schoool wrote on a National Law Journal blog that he went into law because he thought it would make a good way to effect — what else? — change. Change of what into what? He didn’t say. If your heart is the right — make that left — place, it requires no explanation.

And that brings us to the elephant in the room that goes unmentioned by Mr. Segal in his long article. Namely, that today’s law school faculties are largely left of center to hard-left radicals. Like it or not but that’s the way it is. Nothing new there, but it explains why law professors are so disdainful of practicing lawyers who more often than not are called upon to represent the interests of businesses and property owners whom the faculty folks see as evil and unworthy of fair consideration by the legal system. Except, of course, when it comes to the Kelo case. There, they think that 19th century precedent should be immutable, and that taking the homes of lower middle class folks for the benefit of big corporations is just swell. Go figure.

We like Segal’s conclusion to his article:

“While most of law school professoriate still happily dwell in the uppermost floors of the ivory tower, the view from the ground for new graduates is growing uglier. It’s not just that the market is now awash with castoffs from Big Law, and that clients can now retain graduates from elite schools and pay them $25 or $50 an hour, on contract. The nature of legal work itself is evolving, and the days when corporations buy billable hours, instead of results, are numbered.

“To succeed in this environment, graduates will need entrepreneurial skills, management ability and some expertise in landing clients. To Energize Your Legal Career is no small matter as it can come down to not just what you know but who you know and how to compose yourself in front of them. You will need to know less about Contracts and more about contacts.”

Justice Stevens Is at It Again

Here comes another lengthy defense of his Kelo handiwork by Justice John Paul Stevens (for our earlier comments on this subject go to ). The latest one is  in the form of a lecture (the 2011 Albritton Lecture at the University of Alabama Law School, on November 16, 2011, that we are told has been posted on the Court’s website).

To put it politely, Justice Stevens must be really scalded by the persistence and vigor of the adverse (and ongoing) public reaction to his Kelo majority opinion, because this time he tries to rehabilitate himself with a lengthy 17-page, single-spaced opus, rearguing the whole  shebang. It will be worth your while to read it.

What it boils down substantively is (a) his concession that taking property from A and giving it to B would violate the Fifth Amendment’s “Public Use” clause, but (b) taking unoffending property from A, C, D, E., F, etc. and giving it to B (the redeveloper) for the latter’s profit (some of which, according to the say-so of fallible municipal prognosticators will hopefully trickle down to the community) is constitutionally hunky dory. Dress it up with lawyer talk all you want, but that is what it boils down to. All this effort on Justice Stevens’ part is unavailing but understandable. It must be unpleasant, to put it with restraint, to end one’s career on the Supreme Court with strangers approaching you and asking “How could you write that opinion?” How indeed?

We rise above temptation to respond to Justice Stevens’ specific arguments, because this is not a law review. Besides, even on his premise, he ignores the fact that there is such a thing as a reductio ad absurdum argument whereby even sound arguments can be carried too far, and if nothing else, his Kelo opinion strays into that territory, because the legal doctrine he espouses has no limits — if the condemning agency makes “findings” no matter how inept in concept, disastrous in application, and contradicted by reality, by his lights they become “well-nigh conclusive.” To see how far this sort of thing can actually go, see 40 Loyola L. A. L. Rev. at 1080, n. 68.

If you take a peek at Professor Fred Rodell’s famous law review article, in which he acerbically criticized some judicial opinion (48 Va. L. Rev. at 280 (1962)), you’ll get the idea of what is wrong with Justice Stevens’ analysis. Besides, we have addressed it in 33 Pepperdine L. Rev. 335, and 38 Urban Lawyer 201. Check ’em out and judge foryourself.

And so, all that Justice Stevenes has so far accomplished with his post-Kelo arguments that purport to rely on precedent, is to provide a perfect example of what Justice Cardozo had in mind when he observed that

“Judges march at times to pitilesss conclusions under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze convinced as they plunge the knife that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the altar of regularity . . .I suspect that many of these sacrifices would have been discovered to be needless if a sounder analysis of the growth of the law, a deeper and truer comprehension of its methods, had opened the priestly ears to the call of other voices.” Benjamin N. Cardozo, The Growth of the Law.

And to go from the sublime to the earthy, there is also an old, old saw according to which when enough people tell you you’re drunk, it may be a good idea to sleep it off instead of arguing with them. Besides, this country was founded on the idea that the government derives its just powers from the consent of the governed, and the governed overwhelmingly think that Kelo sucks. True enough, that in itself is not enough to justify judicial disregard of a statutory or constitutional term that expressly allows or forbids some modes of government action. But transmogrification of the plain English term “public use” into public “purpose,” “benefit,” “advantage,” or “welfare”  — terms that are nowhere to be found in the Public Use Clause of the Fifth Amendment — smacks more of George Orwell’s dark vision of the future that of American constitutional law, and leaves one puzzled as to why the Supreme Court would thus resort to such stretching of plain English words, and thereby enlist itself in some sort of doctrinal jihad against private property rights.

Judicial Taking in New York?

We quote from today’s CNN dispatch that came after the police removed the “occupy Wall Street” folks from Zucotti Park in Manhattan:

“The order from New York Supreme Court Judge Lucy Billings allows protesters to bring tents and other equipment back into the privately owned park where the now-global Occupy movement began.”

So if that park is privately owned and a judge orders that it be opened to a mob of others  to live in without the owner’s permission, then isn’t that axiomatically a judicial taking?

A Bit of Common Sense in California. Wow!

Since we freely criticize the many shortcomings of eminent domain law, it seems only fair that we should deliver a loud attaboy to California Supreme Court Justice Ming Chin and his colleagues who have just restored some common sense to California law of eminent domain.

California law, as in most jurisdictions, provides for a quick take procedure whereby the condemnor can make a deposit in court for the owners and thereupon gain immediate possession of the subject property that is being taken. Actually, to get technical about it, that procedure is unconstitutional because the California state constitution (Article I, Sec. 19) provides that in takings of property just compensation must first be paid to the owner or deposited in court for him, before the taking can occur, and of course compensation isn’t determined until after a valuation trial. On the other hand, that constitutional provision also provides for prejudgment possession. So how can just compensation be “first made” if it isn’t determined until after trial? Besides, that “deposit” is not “just compensation” but only only a condemnor’s unilateral estimate of what it thinks the “just compensation” should be, and both historical data and more recent studies demonstrate that condemnors tend to lowball the condemnees in a great many cases. In fact, California condemnation lawyers charge their clients only a 30% fraction of the recovery they obtain that is over and above the condemnor’s offer, so if those offers were consistrently fair, condemnation lawyers would starve.

Moreover, when a California condemnor makes a deposit, it isn’t really a deposit into court but only into a special state fund where it earns a miniscule rate of interest — currently around one percent — rather than either the market rate, or the statutory rate of 10% that all other litigants get. But we digress — that’s not what this case, Los Angeles County Metropolitan Transit Authority v. Alameda Produce Market, that just came down from a uninanimous California Supreme Court, was about.

The California statutory scheme (Cal. Code Civ. Proc. Sec. 1255.310) provides that when owners withdraw their deposit, there is a catch. A withdrawal is deemed a waiver of all defenses to the taking except a claim for greater compensation. Which is no big deal most of the time because defenses, in the sense of challenging the right to take, are rarely raised. Anyway, four years ago in Redevelopment Agency of San Diego v. Mesdaq, 154 Cal.App. 4th 1111 (2007) the agency made a deposit shereupon the mortgage lender bellied up to the counter demanding a withdrawal of sufficient funds to satisfy its loan balance. The owner had no objection because he naively thought that it was no skin off his nose — and indeed it wasn’t. The lender was entitled to withdraw the balance of his loan, so why object? But hey man, this is California where the local judiciary can be relied on to do its best to twist statutes to favor condemnors. Actually, some of our statutes do the twisting all by themselves — but that’s another story for another time. Still, we should note in passing that during oral arguments in Alameda Produce, one of the Justices observed that California eminent domain law is not very user friendly. That it isn’t, if by “user” you mean the hapless property owner — but it sure is “friendly,” actually warm and fuzzy to condemnors. Which is another story for another time too. Anyway, in Mesdaq the Court of Appeal held that a withdrawal is a withdrawal, and it didn’t matter who requested it. The owner made no objection to the lender’s withdrawal, so that was that — his statutory rights went poof! even though he did not waive them. The state Supreme Court denied review.

In the Alameda Produce Market case that just came down the same thing happened, except this time the California Supreme Court woke up and rectified this outrageous rule whereby your mortgage lender can waive your substantial constitutional rights without your consent, which means now is probably the ideal time to check up on your mortgage to save money. The court analyzed the statutory language and concluded that it provided no basis for the Mesdaq holding, because the waiver by operation of law applied only to the party withdrawing funds from the deposit, not the other defendants. Sensible ruling because the Mesdaq court never explained what purpose would be served by the owner having to make an objection in court when he has no basis for objecting because the lender is clearly entitled to its share of the deposit. What would the owner have to argue in such a bizarre “objection”? So the California Supreme Court reversed and disapproved Mesdaq to the extent it was inconsistent with the present ruling.

All of which goes to show that there is hope. You have to be persistent and remember that this is a never-ending battle in which the good guys have to keep at it, bearing in mind Edmund Burke’s admonition that for evil to succeed, it is only necessary that good men do nothing. So you have to fight the kleptocrats every chance you get, because for all their condemnor-orientation, courts do see the light at times.

California: With Republicans Like That, Who Needs Democrats?

We commend to our readers a piece by Steven Greenhut, commenting on the ongoing California brouhaha over the demise of redevelopment agencies, proposed by, of all people, our recycled “Governor Moonbeam,” Jerry Brown, who wants to glom on to their revenues in order to plug the gigantic hole in California’s budget (if that term may be used here without doing violence to the English language). See Steven Greenhut, Corporate Welfare and the California GOP,, November 11, 2011 — click here.

Greenhut, who is knowledgeable about these matters (he has written a book on eminent domain abuses), takes note of the fact that in a curious obversion of the usual political order, lefty California Democrats who constitute the legislative majority and who usually are inhospitable — to put it mildly — to private property rights, have been following their leader (Governor Jerry Brown) and supporting his move to abolish redevelopment, whereas all but a tiny handful of our legislative Republicans have been opposing Brown’s move to abolish redevelopment and thus end this particularly virulent strain of “corporate welfare.” Why?

We have some problems providing an answer to this question. Republicans claim to be market-oriented types who oppose big government central planning. But strangely enough, at the local level, their asserted principles take a back seat to their support of deals that can only be characterized as “crony capitalism.”  And California isn’t the only place where they have done so. As we noted recently, the same sort of thing has happened in Mississsippi where their governor, Republican Grand  Poo-Bah, and former Republican National Committe Chairman, Haley Barbour, vetoed eminent domain reform passed by the state legislature and more recently led an [unsuccessful] fight to defeat an initiative curbing economic redevelopment property takings, both at the polls and in court.

At least Barbour is honest — it’s all about money. He says he wants to be able to use eminent domain for “economic redevelopment” in order to take private land and offer it as a subsidy to businesses, including foreign car manufacturers who compete with American car makers, to attract them to Mississippi. So if his candidly stated motivation is what this phenomenon is all about, it would appear that the Bible is right when it teaches that men are ever ready to sell their birthright for a mess of pottage. Too bad.

California High Speed Rail (Cont’d.)

Let’s see now. As we headed East out of la-la land the other day, the proponents of that high-speed train from nowhere (Bakersfield) to nowhere (Fresno) were busily revising their cost estimates and — surprise! — the route of their railroad, but were promising to charge ahead even though California lacks the funds (now and for the foreseeable future) to pay for this boondoggle, and Uncle  Sam is broke too. Click here . Now, another front has opened up. A trial court judge in Sacramento has ruled that the railroad builders’ [second] environmental impact report (EIR) is inadequate and will have to be redone. Needless to say, this will increase the estimated cost which is now within kissing distance of $100 billion, with more hinted at.

Three posh Northern California cities, along with a bunch of tail coat riders, sued three years ago, challenging the adequacy of the [first] EIR which the judge found inadequate. So the railroad builders went back to the drawing board and came up with a second EIR, and that’s the one that just got shot down. The court ruled that the railroad folks will have to go back again and re-study the effect of the rail right of way on highway traffic.

We hope that you will forgive our cynicism, but we doubt if any of this is the real reason for the controversy. What the plaintiffs want, what they really want, is for the railroad route to be moved eastward from the posh San Francisco Peninsula, way across the San Francisco Bay where, you know, the declasse folks live. For the Palo Alto News story reporting this development, see Gennedy Sheyner, High-Speed Rail Hit With Legal Setback, Palo Alto Online News, November 14, 2011 – click here.

We can’t wait.

Justice Stevens Has Second Thoughts About Kelo. No, Wait – He Doesn’t, But he Can’t Explain it Either

We wish Justice Stevens, the author of the Kelo majority opinion, would make up his mind. First, shortly after Kelo came down in 2005, he went to Las Vegas and delivered a speech to the Nevada Bar Association in which he clearly expressed his misgivings about his majority opinion, noting pointedly that there are some cases on which he wished the court could take a mulligan. For the benefit of non-golfers who may be reading this, “mulligan” means doing it over, as in repeating a stroke. The implication was clear. You can catch all that in the Nevada Law Journal wich published the text of his speech — Judicial Predilections, 6 Nev. L. Jour. 1 (2005).

Now, reacting to stinging criticism from his friends, he is digging in his heels and defending his handiwork as being compelled by precedent, which is the judicial equivalent of the “the-devil-made-me-do-it” defense.  We learn this from Online WSJ (Jes Bravin, Justice Stevens on His ‘Most Unpopular Opinion’, November 11, 2011) — a tip of our hat to the Volokh Conspiracy for bringing this to our attention and quoting the pertinent part:

“It’s the most unpopular opinion I ever wrote, no doubt about it,” Justice Stevens said in an interview. He said he empathized with Ms. Kelo, “but the legal issue would have been exactly the same if it had been a gas station or a pool hall” . . .

What a strange thing to say. His Lordship obviously does not understand the law of eminent domain. Why? Because at least Susette Kelo got paid for the taking of her home, whereas in Connecticut owners of a business like a pool hall or gas station, don’t get a nickel for the destruction of their business goodwill (which can be quite valuable) and other business losses when the land on which they are located is taken by eminent domain. So an uncompensated taking of such businesses would have been much worse morally than paying Susette for her iconic “little pink house.” Studies done during the heyday of redevelopment urban devastation (displacing hundreds of thousands of city dwellers per year) showed that some 80% of individually-owned, one-location businesses never reopened when their premises were taken by eminent domain.

And why pick “a gas station” or “pool hall” — both undesirable land uses? Why not pick a hospital? Like for example in the wretched Poletown case in Detroit, where the taking included the Sisters of Mercy Hospital, a major acute care hospital that had served the local community for years, only to be bulldozed to the ground in order to turn its site over to General Motors for a new Cadillac plant, at a cost to the public of $200 million, all to no effect — the promised 6000 job level of employment at the new plant never materialized, and in the long run GM went bankrupt and Detroit became the nation’s urban basket case anyway. Your faithful servant was one of the lawyers representing the Sisters and can attest to the abuse to which they were subjected — which is another story for another time, but which warrants mention.

But be that as it may, why was Justice Stevens making this unfortunate attempt to defend his indefensible handiwork after expressing justifiable doubts about its soundness? Because he got chewed out by his right-thinking friends, that’s why.

“I had people at a bridge game stop me and ask, ‘How could you have written that opinion? We thought you were a good judge, but we learned otherwise,” he said. “But you can’t explain the whole law of eminent domain to your bridge opponents.”

Oh, really? We can, Your Honor. First of all it wouldn’t be “the whole law of eminent domain” but only one narrow slice of it, to wit, what constitutes “public use” within the meaning of the Fifth Amendment. Let’s get that straight; it wouldn’t even cover the entire subject of right-to-take law. Most eminent domain cases in which the owners challenge the right to take involve topics other than “public use” — like attempted excess condemnation, issues of “more necessary public use” (where both condemnor and condemnee devote the subject land to public use), lacking or misused statutory authority, failure to follow required procedures, failure to make a statutorily-required prelitigation offer, or even lack of necessity in a few cases.

Being of a certain age, though not quite in the same league as Justice Stevens, we doubt whether we could still do it while standing on one leg, but it would be a breeze to do it standing  up during the time it takes to play a rubber of bridge. It’s not rocket science, you know, although by an odd coincidence your faithful servant happens to be a former rocket engineer, and he can attest to the fact that in a sense rocketry is easier than the law of eminent domain, because in it words have meaning and you can’t mold the meaning of a term and thereby the meaning of reality to suit your policy preference. The last time the rocket folks tried it, the Challenger shuttle blew up on liftoff.

So how about it, Your Honor? Your faithful servant will be glad to pop over to Florida and give your bridge opponents (and your partners too) the benefit — if that is what it is — of his nearly 50-year experience in practicing, teaching, writing and lecturing on the law and practices of eminent domain. You will find his credentials if you go to the upper right corner of this post and click on the word “About.”

Wish We Had Said That

Run, don’t walk to your computer and go to, the blog of our Hawaiian colleague Robert H. Thomas who delivers himself of a brilliant, if occasionally acerbic, summary of what is wrong with the Hawaiian regulatory climate, and why on account of it that wonderful state is unable to establish a sound economy and is mired in a condition in which it is no more than a place to visit, and where the locals have to endure the highest cost of living, equal to Manhattan. It’s Potemkin Village, Hawaiian Style, November 11, 2011). Do read it!

Lowball Watch — South Dakota

The Rapid City Journal reports an inverse condemnation case in which the road salting practices of the city killed 42 trees on the owners’ land. When they sued in inverse condemnation, the court awarded $126,530 as compensation, as against a city offer of $5000. But even the city’s appraiser testified that it would cost $14,500 just to remove the dead trees.

However, the court denied attorneys’ fees even though a state statute provides that where an award exceeds the offer by 20% they are to be awarded. The court’s reasoning was that the statute applies only to direct eminent domain cases, not to inverse condemnation. Which by our lights is perverse. By this court’s reasoning, a government entity that follows the law and files a proper eminent domain action to take a necessary property interest in the owner’s land, but underestimates the value, has to pay attorney fees when it lowballs him. But a government agency that violates the law and just inflicts damage for which it refuses to pay (or only offers to pay a trivial amount that even its own appraiser won’t buy) gets rewarded by not having to pay the damaged owner’s litigation expenses. Weird.

The reported story is Emilie Rush, Judge Denies Request for Attorneys Fees in Tree Case,  Rapid City Journal, November 11, 2011 – click here.

The Keystone XL Pipeline Brouhaha — A “Profile in Courage” It Ain’t

We haven’t been following the controversy in Nebraska over the Keystone XL pipeline that would run southward from Alberta, Canada, to the Gulf Coast, and transport heavy oil extracted from Canadian tar sands. Nebraska farmers don’t fancy the idea of having their land taken, and environmenntalists, as is their wont, are up in arms over the pipeline’s impact on the environment. So what’s new about that? This proposed taking has a novel wrinkle to it. Because the pipeline would cross the U.S. border on its way from Canada, this project requires approval from the U.S. State Department. And guess what? The Obama administrations doesn’t want to make that decision, what with the 2012 election coming up, and all that. So what have the “hope and change” folks done? They kicked the can down the road, and have announced that they need to study the problem some more with the decision not forthcoming until after the 2012 election.

You can read all about it in John Broder and Dan Frosch, U.S. Delays Decision on Pipeline Until After Election, N.Y. Times, Nov. 11, 2011 – click here.) For some good commentary that provides context to this dispute see Rachel Weiner, Keystone XL Pipeline Unites Left and right, Washinton Post, November 11, 2011 – click here.