Spring 2016 Substitute for Actually Studying

Sorry for the clickbait. Finals are coming up so it’s time for a quick and dirty exposition of a few things I learned this semester. Overall I have conceded that law school is extremely challenging.

Property: Why do Churches Get Special Land Use Privilege?

The Religious Land Use and Institutionalized Persons Act (Sep. 22, 2000, RLUIPA introduced by Utah Senator Orrin Hatch) provides protection to religious groups in regards to governmental zoning and governmental enforcement of private land covenants. The federal statute bars the government from imposing a substantial burden on religious land use unless if the government can show that it has a compelling interest to impose the burden and that the imposition is the least restrictive means to accomplish the compelling governmental interest.

James Madison taught that religious freedom is an unalienable right, superior to the civil authority. First it is necessary to understand that religion can only be exercised by reason and agency and cannot be enforced with the sword (or tax garnishments). In contrast, civil authority relies on social and militant power. The relationship between God and man exists outside of the purview of the state. The founders were not “creating” rights in the Constitution…they were “protecting” rights. Man is subject both to God and Caesar, but subjugation to God is earlier in time and higher in eminence (See Is RLUIPA Unfair to Secular Land Users? by my profess.).

Backing up a little it is important to realize that government does have certain powers (albeit powers given by the people) in regards to land use (land rights which are endowed on man from a power greater than government).

Most notably is the eminent domain power (US Const. 5^th Amendment isn’t just about protecting against self-incrimination) which equips the government with the ability to take private land for public use, provided that it pays just compensation. This power is typically used to build roads, run utility easements, or provide public parks, hospitals, public buildings etc. The grey area in regards to both physical takings and regulatory takings is the line on what constitutes public use. The SCOTUS (US Supreme Court) case Kelo v City of New London found that the government could take land and give it to a private company because the economic development would serve a public purpose (I know, scary right?). Overall I would say the taking power of the government has pretty well been kept in check by state legislation and sound judicial decisions.

Also of note, local governments have the power to create zoning ordinances which are designed to protect the public safety, health, and welfare. Sidenote: One issue we discussed related to this regulating power is “exclusionary zoning” where a city often tiptoes segregating society along economic lines. These economic lines often indirectly separate society according to income, race, and background, think: designating portions of a city to single family residential, others to high density apartments, etc. It is in local ordinances that certain areas are designated as appropriate for religious use.

One of the major subsets of local regulation which we discussed was disputes which have arisen when individuals conduct worship services in their home. The issues arise when heathen neighbors complain about the parking or traffic nuisance associated with 25 or so people coming to study the Quran or sing hymns. Heathen neighbors (joking with that term FYI) unfortunately do not emphasize the essential nexus of the issue which the congestion caused. They instead emphasize the religious practice creating a quasi-church which needs to operate with a permit.

RLUIPA codifies the protection which individuals have against the power of government. The burden of proof is on the government to show that society has a compelling interest in the land being used differently.

North Carolina’s recent religious protection act, let’s just get my initial thoughts out there: I wish that additional rules didn’t need to be made but in order to carry out the purpose of the constitution it is better to legislate through elected officials as opposed to leaving it to unelected judges. The constitutional rights of gay and transgender persons are certainly important as well. I however do not believe that in a capitalistic society persons have a “right” to buy goods from certain vendors. The constitution protects the people from the government, it doesn’t necessarily protect the people from the people.

Contracts: Athletes who want to Breach

The USWNT (Mia Hamm and co I think) team and Tom Brady have been disputing their collective bargaining agreements as of late. Collective bargaining agreement in this instance is a fancy way to say “contract between the players and owners”.

The USWNT actually seems to be taking advantage of procrastinating leadership which didn’t finalize a new official CBA. However there seems to be ample evidence that enforcing the old CBA shouldn’t be an issue because the elements of offer, acceptance, consideration, statute of frauds, and conditions seem to be present with the agreement to continue recognizing the old CBA. I would advise USWNT not to breach. While their cause (equal pay) might be just, the current approach seems to be a losing battle, but they are smart to advance their pay concerns in an Olympic year when they are in the public spotlight.

Mr. Brady essentially believes the CBA he signed didn’t actually give Mr. BadDell the right to suspend Brady for cheating or in the alternative that it gave too much power to Mr. BadDell. I don’t believe the NFL’s action was unconscionable but it is too bad that one player gets to be made an example.        

Civil Procedure: Does Information Access Kill the Legal Profession?

The availability of information via the internet has threatened many job sectors. Notably, I believe the legal profession has lost some of its value as a result of information dis-asymmetry. Legal education likely could afford to move away from the standard brick and mortar model (and I by “afford” I don’t mean to include the professors who would lose their six figure incomes). We spent this semester applying the Federal Rules of Civil Procedure. Like any code, a layman could look this information up and attempt to apply it. The “lawyer difference” comes with being able to issue spot among a complex set of facts and then to be able to know how different rules are connected to each other. As such, I believe lawyers do have job security and society shouldn’t necessarily want them to become techies, doctors, or engineers.  

International Perspectives: Business Idea: Nonprofit Which Teaches Comparative Law Course to Muslim Arabs

I keep a long list of business ideas in my notes. Some are higher on the spectrum (i.e. Uber stole my Carpool.com idea) than others (i.e. gas station to gas station sell the “Employees must wash hands” signs). My International School for Kids who Don’t Understand Differences Between American and Islamic Law Good is the combining of the millennial need to travel the world and the education need for lower income individuals. Individuals will travel to Jerusalem, Cairo, Amman, and Istanbul where they will spend two weeks working half-days in local high schools teaching about American and Islamic legal systems.

The American legal system is, like, pretty straight forward as I have learned this year (not). Here are some basics of Sharia Law just so you are prepared for the atfaal (children). Sharia Law is based in the Quran which is the written version of Muhammed reciting God’s message. The Quran is supplemented by the sunna and hadiths which are basically examples of how Muhammed applied the principles of the Quran. Ijma(community consensus) and Qiyas (reasoning) are utilized next in providing legal decisions. The Qadi (judge) also is assisted by mufti (scholars) in making rulings. In reality there are few pure Islamic Law countries with most regions having some influence from French civil code and British common law. “Islamic Law” in and of itself is too broad of a term because there are several different schools of jurisprudence. These schools vary because of different historical and cultural influence and have varying degrees of conservative and liberal principles.

One of the interesting principles of Sharia Law is its “Conflict of Law” provisions. These provisions concede rights to Jews and Christians in making their own legal decisions including decisions on inheritance, divorce, health, and Sabbath observance.

So basically the kids are going to learn to appreciate their own legal system and also see the virtues of the American legal system. Western ideals will be planted in their minds and not just western idols.