To: Students in Professor Liu S Property Law Class 2002-03

MEMORANDUM

To: Students in Professor Liu’s Property Law Class – 2002-03

From: Professor Joe Liu

Date: June 11, 2003

Re: Final Exam

The purpose of this memo, as with the mid-term exam memo, is to provide you with some feedback on your exams. I am providing general comments here in summary form (rather than individually on your exams) because I can go into the answers (to the extent there are any) in more depth, and also because this summary will give you a sense, not only of how well you did, but how others in the class generally did with respect to particular questions, problems, and issues. Accordingly, the best way to use this memo is really as a guide to the test. It does not purport to be an actual answer to the exam. Rather, it highlights the issues that were raised by the various questions, summarizes how students dealt with them, and provides some of the expected answers. None of the actual answers submitted by students in fact identified and dealt with all of the issues in the exam. Accordingly, you should not feel bad if you did not identify all of the issues – many excellent answers missed a number of issues. However, the answers that generally got higher grades naturally spotted more of the issues than other answers. So by comparing your exam to the issues raised by this memo, you should be able to get a decent sense of how you did and (hopefully) why you received the grade you received.

Memos like this, however, only provide you with substantive information about the test – i.e. what the issues were, what complexities were raised, etc.; they do not actually give you a very good idea of how all of this information is best presented in an exam answer. Accordingly, I have attached to this memo a copy of some actual answers submitted by students in the class. The sample answers are all very good, although they are not necessarily the very best or “top” answers for any given question. They all do a very good job of addressing the major points of each question in an organized and coherent fashion. By taking a close look at these sample answers (and again, comparing them to your own), you should be able to get some sense of how the substantive issues set forth in this memo were presented in an effective manner, within the time limits.

I hope that these materials will give you some valuable constructive feedback on the exam. After looking at these materials, if you still any questions at all about the exam, please feel free to contact me.

General Overview

Overall, I was, as with the mid-term exam, generally quite happy with the answers that were submitted in response to the final exam. The vast majority of you all did quite a good job of addressing the major issues presented by each question. Exams did differ, of course, with respect to the number of issues actually addressed, the depth and sophistication of the treatment of these issues, and the way in which the answers were presented. Accordingly, these were grounds for distinguishing between answers. However, as I noted above, the vast majority of you did quite an acceptable job of addressing the issues, so you should feel good about that. With respect to grades, the class followed the usual Boston College curve. The vast majority of the grades (around 70%) were some form of B (i.e. B+, B, or B-), and the mean grade was between a B and B+. At the beginning of your exams, there is a number representing the score for each of the three questions in the exam. The score is based on a scale of 1 to 10 (with 10 being excellent and 1 being poor). This should give you a general sense of how well you did on a particular question. Grades were then based on the combined score of the three questions (weighted accordingly, i.e. 40%/30%/30%). Also, I noted those students who received credit for class participation.

As I indicated at the beginning of this class, this final exam counted for 60% of the final grade for this class. Accordingly, the final grade for the entire class (which you should have already received either directly or via the web) was calculated based upon the combined score of the mid-term and final (weighted 40%/60% respectively). As I also indicated at the beginning of the class, for folks who did poorly on the midterm exam, significant improvement on the final exam was taken into account in the final grade.

A word about time limits. As many of you no doubt noticed, there were a lot if issues in the exam, and the time allotted was not really sufficient to address all of them in as much detail as you probably would have liked. To some extent, this is an unavoidable consequence of the in-class exam format. For almost any exam question, you could probably spend several days and many, many pages spotting and discussing all of the issues raised in the exam question. Since time was limited, however, you were forced to decide which issues were worth spending time on, and how much detail to go into for each issue. This involves an element of legal judgment (i.e. recognizing which issues are important, which are less important, which are clear cut, which are more complicated, etc.), and was accordingly part of the exam. In addition, the short time frame meant that solid preparation and good time management were extremely important.

Question 1

I. Overall

Overall, the answers to this question were quite solid. The question presented you with the challenge of spotting a number of issues in a complex fact pattern. The goal, as with any issue spotter, was to see if you could identify potential legal issues, state the applicable legal rule, apply the facts to the rule, and make a preliminary judgment about the result. I was happy to see that most of you were able to spot most of the issues raised in the fact pattern. A solid, middle-of-the-pack answer highlighted the major issues, set forth the applicable legal rule, and applied the rule to the facts in a general fashion. The better exams tended to spot more issues, and dealt with these issues with a bit more sophistication, either noting potential ambiguities in the law, or doing a better, more nuanced job of applying the specific facts to the legal rules. As with all such things, it was a matter of degree.

Because of the complexity of the fact pattern, clear organization and writing had an impact on the grade. Although time is often quite short during an in-class exam, a few minutes thinking about organization are generally well-spent. The better exams tended to set forth a clear structure, with headings and coherent paragraphs. Exams that rambled or simply listed information, with no organization, did not do as well. In addition, the short time limit forced students to be brief and to the point, and to make some judgment calls about which issues deserved more discussion, and which issues were fairly cut and dried. Such decisions about what to include and in what detail also indicated your grasp of the doctrine. Despite the short time limit, many excellent answers were able to cover a wide range of issues in a good level of detail and sophistication.

II. Jack Tanner

A. Eviction Proceeding

Conley may be able to evict Tanner for non-payment of rent. Failure to pay rent is a material breach of the lease and subjects a tenant to an eviction proceeding. Tanner has not paid rent since August, and is

2 therefore in breach. However, Tanner may be able to raise a number of defenses, described in more detail below. If these defenses are successful, then Conley may not be able to evict Tanner.

Conley may also be able to evict Tanner at the end of the lease term in June of 2003. In most jurisdictions, landlords are under no obligation to renew a lease if the lease is silent on this issue. A few jurisdictions have modified this rule, requiring good cause eviction (e.g. New Jersey). In addition, Tanner may be able to bring a defense of retaliatory eviction, as described in more detail below. However, absent these two situations, Conley would be able to refuse to renew the lease and then initiate eviction proceedings if Tanner holds over. (Conley should be careful not to accept any further rent payments under such circumstances, as some jurisdictions might construe this as a renewal of the lease).

B. Defenses

1. Constructive Eviction

Tanner can assert a defense (or separate independent claim) for constructive eviction from his bedroom based on the vibration from Happy Dry Cleaner’s equipment. In every lease, there is an implied covenant of quiet enjoyment, under which the landlord promises not to disturb the tenant’s quiet enjoyment of the property. Breach of this covenant gives rise to a claim of constructive eviction. In order to prove such a claim, Tanner must establish: (1) that the Conley substantially and materially deprived him of the use and enjoyment of the property; and (2) that he moved out of the affected property as a result.

An initial question is whether Tanner can assert such a claim for deprivation of the use of only part of the property. Traditionally, constructive eviction applied to a landlord’s interference with possession of the entire property. In order to make out such a claim, the tenant had to move out of the entire property and was completely relieved of the obligation to pay rent. However, many modern jurisdictions have recognized the doctrine of partial constructive eviction. (See Minjak v. Randolph). In such jurisdictions, a tenant may move out of a portion of the premises and obtain a rent abatement. Thus, if Tanner is in a jurisdiction that recognizes this doctrine, he may be able to raise this defense. However, if Tanner is in a traditional jurisdiction, then there would be no claim, since Tanner did not move out of the entire premises.

A second question is whether the vibration substantially and materially deprived Tanner of the use of his bedroom. This is a close question. On the one hand, the vibration is not a serious as the interference suffered by the tenants in Minjak, which involved water, dust, and various safety hazards. Conley herself believes that vibration would not disturb most people. Moreover, Tanner has not completely moved out of the bedroom, insofar as he still uses it for storage. At the same time, the vibration is constant and Tanner has indicated that it is driving him crazy. This is a close issue and could go either way, depending on the evidence.

A third and final question is whether Conley can be charged with the actions of Happy Dry Cleaner. Traditionally, constructive eviction applied only to actions by the landlord, and not by third parties. However, some jurisdictions have extended the doctrine to apply to actions by other tenants, when the interference caused by such actions is foreseeable and reasonably under the landlord’s control. (See Blackett v. Olanoff). If we are in such a jurisdiction, then Tanner may be able to bring such a claim. In particular, the lease between Conley and Happy Dry Cleaners states that Happy Dry Cleaner “shall not engage in any activity that interferes with the peace and quiet of the residential tenants.” The lease term suggests both that a potential conflict was foreseeable and also that Conley has a legal right to prevent Happy Dry Cleaner from engaging in the activity.

If Tanner’s claim is successful, then he would be entitled to partial abatement of the rent since January of 2003. However, he would still be on the hook for the rent from August to December of 2002 (preceding the vibration), as well as the non-abated portion of rent since January 2003. Accordingly, if he failed to pay these amounts, he would still be subject to eviction (subject to any other defenses, as listed below).

2. Implied Warranty of Habitability

3 Tanner may also be able to assert a defense of breach of the implied warranty of habitability, based on the old appliances, broken molding, and peeling paint. In nearly every jurisdiction, modern courts have implied a warranty of habitability into every residential lease, under which the landlord is obligated to make repairs and maintain the premises in habitable condition. (See Javins v. First National Realty.). In determining whether this warranty is breached, courts often look to the local housing codes. Moreover, breach of this warranty is a defense to an eviction proceeding.

In this case, Tanner probably does not have a successful claim for breach of the implied warranty of habitability. The record indicates that the appliances, while old, still work. Nothing in the implied warranty of habitability guarantees a tenant a new appliance. Moreover, the molding and paint probably do not rise to the level of breaches of the warranty of habitability. However, it would probably be a good idea to check the local housing code to make sure. In any event, even if there is a claim for breach of this warranty, Tanner would be entitled to an abatement of the rent owed, equivalent to the reduction in market value of the property due to the breach. Tanner would still be on the hook for the rest of the rent, and if he failed to pay that amount, would be subject to eviction.

3. Retaliatory Eviction

Tanner may also be able to claim that a refusal to renew the lease constitutes retaliatory eviction. As noted above, landlords are generally under no obligation to renew a lease at the end of the term, absent some express language in the lease. One exception to this is the doctrine of retaliatory eviction. Under this doctrine, a landlord may not refuse to renew a lease (or take any other action) in retaliation for a tenant’s assertion of a right under the implied warranty of habitability. A tenant can establish a prima facie claim for retaliatory eviction by pointing to an eviction proceeding (or other unfavorable action) following a complaint about housing conditions or other similar assertion of a tenant’s right. Some jurisdictions set a time limit (typically 6 months) for these two events, within which retaliatory intent is presumed. Once a prima facie case is established, the burden shifts to the landlord, who must come up with a non-retaliatory motive. The tenant then must show that the non-retaliatory motive is a pretext.

Here, Tanner’s retaliatory eviction claim likely depends on the success of his other defenses. Tanner can probably establish a prima facie case, insofar as a refusal to renew would occur shortly after Tanner’s complaints about his living conditions. Conley, however, would be able to point to Tanner’s persistent failure to pay rent. If Tanner’s other defenses are successful, then his failure to pay rent would be justified and would not be a legitimate reason for failure to renew. On the other hand, if Tanner’s other defenses are not successful, then Conley will have established a legitimate, non-retaliatory reason for eviction.

III. Happy Dry Cleaner

A. Enforcement of “Peace and Quiet” Lease Provision

As an initial matter, Conley may be able to sue to enforce the provision in the lease that states that Happy Dry Cleaner “shall not engage in any activity that interferes with the peace and quiet of the residential tenants.” Here, there is an open issue about whether the vibrations in fact interfere with the peace and quiet of the residential tenants. This is a close question, as already discussed above in the context of Tanner’s constructive eviction claim. If the vibrations do result in a breach of this lease provision, Conley may try to seek specific performance (i.e. an injunction against continuing use of that machinery), damages, or eviction.

B. Assignment or Sublet

Conley will probably be able to prevent Happy Dry Cleaner from subletting the premises to the musical instrument store. The lease states that “Tenant shall not sublet or assign the property without the prior, express written consent of the Landlord.” The traditional rule was that, given such language, the landlord could refuse to consent to a sublease for any reason whatsoever. In such a jurisdiction, Conley would be able to refuse to consent to the sublease. Modern jurisdictions have modified this rule in the context of commercial leases, implying a requirement that a landlord act reasonably when refusing consent.

4 (See Kendall v. Pestana). Even in such a jurisdiction, Conley would probably still prevail, since Conley’s reasons for refusing consent are probably reasonable. Specifically, the musical instrument store would very likely disturb the peace and quiet of the residential tenants.

C. Remedies for Breach of Lease

If Happy Dry Cleaner moves out of the premises before the end of the lease, Conley has three options. First, Conley could accept surrender of the lease. Under this option, the lease would be terminated. However, Conley would still be able to sue Happy Dry Cleaner for damages, which would amount to the difference between the lease rent and the market rent over the remaining term of the lease, along with any costs associated with re-letting the premises. Here, the difference between the market and lease rent is $1,000 and thus the total damages for the remaining 18 months of the lease would be on the order of $18,000. Second, Conley could refuse surrender and proceed to re-let on the tenant’s account. Here, too, Conley could sue for the difference between the lease rent and the actual rent paid by the new tenant, as well as any associated costs. The difference here, however, is that Happy Dry Cleaner would still be on the hook for future rent, if the new tenant fails to pay. Third, Conley could do nothing and wait to collect the full lease rent at the end of the lease term (18 months x $5,000 = $90,000). This was the traditional rule at common law. However, many jurisdictions have modified this rule to require that a landlord mitigate damages. (See Somer v. Kridel). Thus, in such a jurisdiction, damages would be limited to the amount that Conley would have been entitled to had she mitigated damages.

III. Zoning Board

A. Discriminatory Treatment

Conley may have a claim against the town zoning board for discriminatory treatment under the Fair Housing Act, based on the board’s refusal to re-zone the lot to permit construction of the low-income apartment building. In order to prove a claim of discriminatory treatment, Conley must first establish a prima facie case: (1) that the action affects a member of a protected class; and (2) that the action treats the member differentially. The zoning board would then have to come forth with a non-discriminatory reason for the action. Finally, Conley would have the opportunity to prove that the stated reason was pretextual.

Here, Conley can probably make out a prima facie case. The board’s refusal to re-zone affects a protected class, namely the racial minorities who would live in the low-income apartment building. Moreover, there is evidence of differential treatment, insofar as rezoning was permitted for a “nearly identical” apartment building across the street for elderly residents who are nearly all white. The zoning board will likely reply that the refusal to rezone was not based on race, but instead on concerns about traffic congestion. Conley may be able to come back with evidence that this reason is pretextual. In particular, Conley can point to both her own studies, which suggest that traffic is not an issue, and also to the anonymous letter, which suggests that the zoning board had other motivations (although it is not clear precisely what the letter means by “the wrong element,” i.e. whether based on race or income).

B. Discriminatory Impact

Conley may also have a claim for discriminatory impact under the Fair Housing Act, based on the same facts above. Many lower federal courts have recognized such a claim, although the U.S. Supreme Court has yet to rule on this issue. To make out such a claim, Conley must establish that a facially neutral law or action has a disparate impact on racial minorities. A court would then look to see if the town zoning board had a legitimate interest for the action and whether it used the least restrictive means for pursuing that interest.

Here, Conley can probably establish a prima facie case of disparate impact. Although the denial of the request to re-zone and the policy of confining low-income housing to the downtown district is facially neutral (i.e. not expressly based on race), it will have a disparate impact upon minorities. As in Huntington Branch NAACP v. Town of Huntington, the policy and refusal to re-zone has the effect of limiting the

5 housing opportunities of low-income residents. Because low-income correlates with race in the town of Springfield, Conley can establish that this policy has a disparate impact based upon race.

Whether the disparate impact is justified is a closer question. The town can probably establish a legitimate public interest for its denial of the re-zoning request and its policy of restricting low-income housing to the downtown district. Specifically, the town can point to the need for public transportation and concerns about minimizing traffic. However, whether this is the least restrictive way of pursuing that interest is an open issue (i.e. Conley may be able to establish other ways of dealing with traffic and public transportation, e.g. running more bus lines, etc., etc.). Thus, we would probably need more facts to assess this claim.

C. Other Potential Claims

Finally, Conley may be able to assert a number of additional claims, although these are unlikely to succeed. First, Conley could try to make out a claim of income discrimination, along the lines of Southern Burlington County v. Mt. Laurel. Specifically, Conley could argue that, even if there is no race discrimination, the policy discriminates against residents on the basis of income (particularly given the severe shortage of affordable housing in Springfield). However, the Mt. Laurel rule has only been adopted by very few jurisdictions. Thus, such a claim is unlikely to succeed.

Conley may also try to assert other claims, from within the zoning ordinance. For example, Conley may try to get a variance, or assert that she has a vested right or prior non-conforming use. However, none of these claims is likely to succeed. Specifically, a variance is typically only granted when the landowner is under an undue hardship, such that zoning prevents economically viable use of the parcel. Here, Conley may still build a single-family home on the property, and thus would probably not be entitled to a variance. Similarly, the doctrines of vested rights and prior non-conforming uses would not apply here, as Conley is not asserting some preexisting right in the face of a zoning change, but instead requesting that the zoning laws be changed to accommodate her project.

Question 2

The answers to this question were a bit more varied than the answers to question 1. Whereas question 1 was designed mainly to test the breadth of your knowledge about basic property law doctrine, this question was designed to test your ability to dig into a single issue in more depth, grappling with doctrinal complexity and exploring some of the policy issues and theoretical tensions in an ambiguous area of the law. Whereas with question 1, most of you did a good job of spotting the main issues, here, exams differed significantly with respect to the sophistication of the treatment of the issues, the depth of the analysis, and the clarity and persuasiveness of the writing.

Answers that got higher scores generally did a better job of initially setting forth, in a clear and concise manner, the doctrinal tests that have emerged from the Supreme Court’s takings cases. The case law in this area is rather complicated, reflecting the various twists and turns that the Court has adopted. Unlike other areas that we studied this term, which have often involved only one or two cases, the takings section included many different Supreme Court cases. Accordingly, I was looking here for answers that did a good job of making sense of these different cases and drawing from them a doctrinal test or set of tests. Many exam answers in fact had difficulty articulating the basic doctrine. Accordingly, those answers that scored better generally did a better job of drawing forth the basic doctrine.

In addition, answers that scored higher were more sophisticated in their application of the doctrinal tests to the facts presented in this case. Again, because the case law in this area is rather extensive, I was looking for more than simply the straightforward application of the doctrine to facts. Rather, I was also looking for recognition of some of the complexities that arise when applying the doctrine. The cases we read suggest that application of the doctrine is often not clear cut, and courts may often apply the doctrine in different ways. Accordingly, answers that scored better generally did a better job of recognizing these

6 complexities and grappling with them. These answers also did a better job of dealing with counterarguments (which the question expressly directed you to consider).

Turning to the substance of the question, an initial issue is whether this case falls into any of the per se takings categories recognized by the Supreme Court. Thus far, the Supreme Court appears to have recognized three possible such categories, where government action may be a per se taking: (1) permanent physical occupation of property (e.g. Loretto); (2) elimination of a core property right (e.g. Youpee); or (3) elimination of all economic value (e.g. Lucas). This case does not involve category (1), since the Arkansas statute does not require the plaintiff to suffer a permanent physical occupation of property. (A nuisance does not quite amount to a physical occupation). Nor does this case involve category (3), since the record clearly indicates that the value of the plaintiff’s property was reduced only by 20%.

It is possible that a court could conclude that this case falls within category (2). The argument would be that a nuisance claim is a core property right. In other words, the right to use and enjoy one’s property free from unreasonable interference is a right that is at the core of what it means to own property. Moreover, the nuisance cause of action has long been recognized by the courts. Thus, nuisance is similar to the right of descent, which was at issue in Babbitt v. Youpee. The counterargument would be that nuisance is not so fundamental a right. Courts and congress are constantly adjusting nuisance law to adapt to new circumstances, and nothing warrants freezing nuisance law in its current status. Indeed, in this case, the Arkansas legislature did not entirely abolish nuisance claims; rather it only abolished such claims that did not cause physical harm to one’s property. Finally, the Supreme Court has never really fully supported this per se category, insofar as Babbitt in the end applied the familiar balancing test. This issue is probably a close one, and good answers could have gone either way on this issue.

Whether or not this case falls within a per se category, the next step would be to apply the general balancing test that the Supreme Court has developed for takings cases. Here, a court would have to consider: (1) interference with investment-backed expectations; (2) the extent of the economic harm; and (3) the character of the governmental action. The overall goal, in applying these factors, is to assess whether this statute unfairly imposes upon the plaintiff a burden that should appropriately be shared more broadly by the population as a whole. Again, as in the per se analysis, the application of this test does not lead to a clear result, and answers could (and did) vary in their ultimate conclusion. Again, what I was looking for was not a “right” answer, but rather a sophisticated application of the factors to the facts in this case, with a sound recognition of strengths, weaknesses, and potential counterarguments.

With respect to (1) investment backed expectations, a court could conclude that the statute significantly interfered with the plaintiff’s investment-backed expectations. Plaintiff invested money by purchasing the property, with the very reasonable expectation that he would be able to live on the property, free from unreasonable interference. Elimination of his long-standing nuisance cause of action thus interfered with these expectations. On the other hand, the response to this is that plaintiff is merely suffering a general loss in value of the property, and not a loss in a specific investment. It is not as if the plaintiff invested in the property specifically to make a use that is now abolished. Moreover, the plaintiff could not reasonably expect nuisance law to remain unchanged, as courts and legislatures are constantly adjusting nuisance law to fit new circumstances. Finally, given that this is farm country, there is no reasonable expectation to be completely free from some of the incidental effects of farming.

With respect to (2) extent of the economic harm, a court could conclude that the harm is rather minimal. The 20% reduction in market value, while not trivial, does not approach the 70+% reduction that was upheld in Village of Euclid. Accordingly, it is not sufficient to result in a taking. The plaintiff would likely counter that, although the reduction in market value is only 20% of the full value of the property, it is 100% of the nuisance claim. The government could counter, however, that this is simply manipulation of the denominator (see Radin’s point about conceptual severability), and that the proper baseline is the value of the entire property. The government could also argue that the statute does not eliminate nuisance entirely, but only those claims that are not based on any physical harm to the property. The plaintiff could still argue that, although the 20% reduction might not be sufficient by itself, it should be sufficient to constitute a taking when weighed along with the other factors.

7 With respect to (3) the character of the governmental action, a court could conclude that, as in Babbitt, the governmental action here is exceptional, insofar as the government is eliminating a core property right (i.e. nuisance) with a long, recognized tradition. (See Youpee). Moreover, the government is doing so in order to confer a benefit, not upon the broader community, but upon a single private landowner, at the plaintiff’s expense. The counterargument, however, is that the action is unexceptional, insofar as the government is always free to adjust and modify the benefits and burdens of property ownership. The statute thus does nothing more than adapt nuisance law in the face of changing circumstances. Moreover, the legislature clearly found that paring back such nuisance claims would have significant benefits to the broader community.

As suggested by the above arguments, this is a rather close case, and excellent answers could reach completely opposite conclusions. For those interested in such things, of the 87 exam answers, 39 (i.e. 45%) held that the statute was a taking, while the remaining 48 found no taking, thus reflecting how close this question is. For my purposes, which way you came out did not matter at all. Instead, I was looking more at how well the answers articulated and applied the doctrinal tests. In addition, because this issue is a close one, I paid particular attention to how well and how fairly the answers dealt with potential counterarguments and weaknesses in their own arguments. The question itself indicated that such counterarguments would be an important part of the answer, in response to the arguments of the dissent. More broadly, being able to identify, articulate, and then respond to counterarguments is a critical factor in making an opinion, brief, or other legal document more persuasive. Answers that did a good job of identifying the strongest counterarguments, stating them fairly, and then responding to them in a serious manner, tended to score higher. Those that failed to identify counterarguments, or identified them only in a cursory fashion, scored lower.

Because the doctrine did not provide a concrete answer, there was also opportunity to consider some of the policy implications of various results. Accordingly, those answers that included policy arguments also got extra points. First, from a fairness standpoint, plaintiff could argue that it is unfair to impose the burden of the statute solely on him, as a private landowner. The government could counter, however, that the plaintiff, like other citizens of the state, will ultimately benefit from the improvement to the economy and community, and thus it is not unfair for him to bear a portion of the burden. Second, from an efficiency standpoint, plaintiff could argue that the statute is unnecessary, insofar as Mega Food Corp should be required to purchase the right to cause a nuisance, and this would reveal whether or not its activities are truly efficient. The government could counter that transactions costs and strategic behavior would make this unlikely, and therefore the statute must step in to achieve the efficient result. Third, from an judicial role standpoint, plaintiff could argue that the courts have an important role protecting property rights from appropriation by the majority (or from a legislature captured by special interests). The government could counter that the legislature should be granted broad deference to determine what is in the best interests of the community as a whole, and that courts should not step in to frustrate this goal. Again, better answers did a good job of weaving in some of these considerations into their opinions.

Finally, organization and writing had a significant impact on the eventual score, even more so than for the first question. Whereas with the first question, the goal was to spot issues and resolve them quickly in an organized fashion, here the question sought a written judicial opinion. Accordingly, opinions that were well organized and clearly presented were generally much more persuasive and therefore scored better. These opinions clearly stated the result (often at the outset) and presented the arguments in support of that result in a logical, orderly, persuasive, and easy-to-follow manner. Opinions that, by contrast, rambled and were unfocused were less persuasive and, correspondingly, received lower scores. To be sure, the constraints on time probably made it difficult to pay as much attention to organization and writing as would be ideal, and I made allowances for that. Nevertheless, many answers reflected clean organization and writing, and I gave points for this accordingly.

Question 3

Unlike questions 1 and 2, this question asked for your own opinion on a specific case, the controversial New Jersey Supreme Court decision in Southern Burlington County v. Mt. Laurel. Again, as in question 2,

8 the answers differed in the depth, sophistication, and clarity of writing. Higher-scoring answers were clearly written, clearly organized, presented a clear thesis, and supported it with solid arguments.

As an initial matter, I was looking for a clearly stated opinion or thesis - i.e. quite literally, an answer to the question “Do you agree with the result in Mt. Laurel?” Of course, you were free to choose any answer you liked, i.e. “yes” or “no” or some middle position, like “in part.” And indeed, folks adopted each of these different positions. (Again, for those who are curious, approximately 70 agreed with the decision, and 17 disagreed with it). Any of these answers was acceptable. I wasn’t so much concerned with which position you adopted, so long as you adopted one. Better answers stated the answer clearly and then proceeded to defend it. Lower-scoring answers never really answered the question head on, but instead jumped right into the discussion, leaving it somewhat unclear, in the end, where the author really stood. (I also note that, of the three questions, this one seemed to most reflect instances where people had problem running into the time limits).

Many answers looked at this issue from a rights-based perspective. On the one hand, poor and middle- income folks should have the right to live where they choose, without formal barriers excluding them from living in particular towns. Or, put another way, towns should have no right to use the zoning laws to exclude such people from living in their towns. This is particularly the case where the towns rely on such workers for basic services. Moreover, the duty to house poor and middle-income folks should be shared by all of the townships, and it is only fair to expect each township to bear some portion of the burden. On the other hand, middle and upper-income folks should have the right to purchase a bundle of property with the features that they wish. Thus, it should be possible for a landowner to purchase property in a development or town that consists of large, single-family homes, and to be secure in his or her expectation that it will stay that way. Zoning laws thus improve the ability of land owners to protect their surrounding environment by constructing a desirable bundle of entitlements.

Many answers also looked at this issue from an instrumental perspective. On the one hand, the Mt. Laurel decision may facilitate efficient land use. It does so by removing an artificial barrier to the development of land. Absent the zoning restriction, the market would have resulted in the development of the low-income housing. The zoning restriction is thus inefficient, insofar as it prevents the market from operating. Moreover, zoning permits towns to externalize the burden of housing low-income residents. Thus, without some state-wide coordination, low-income residents may be excluded from affordable housing anywhere. Finally, the decision will improve integration, which is a desirable social goal. On the other hand, the Mt. Laurel decision may facilitate inefficient land use, by requiring towns to set aside property for uses that might not otherwise be efficient. Once zoning laws are established, the market should operate to allocate uses of land. Moreover, courts should not be involved in this type of social engineering.

Finally, many answers looked at the case from the perspective of judicial role and administrability. Many (even those who agreed with the ultimate result) objected to the activist role played by the court. Under this view, courts are simply not institutionally equipped to deal with issues like this one. This is illustrated by the subsequent history of Mt. Laurel II, where the court had to engage in extremely intrusive oversight of the zoning process. Legislatures are much better equipped to deal with the complex policy issues and tradeoffs involved. Moreover, they have more democratic legitimacy. Many were troubled by the apparent lack of clear doctrinal support for the court’s decision. On the other hand, others were less troubled, arguing that, where the legislature has not acted, the court may properly step in to correct a clear injustice. Unlike legislatures, a court does not have the luxury of avoiding issues and must decide the case before it. This may provide important information to the legislature about specific issues and problems. The legislature can always later act to correct or modify the court’s decision (as the legislature in New Jersey in fact did). Thus, the court has a more dialogic role vis a vis the legislature.

In the end, as I mentioned above, I was not looking for any particular answer or set of arguments. Instead, I was looking for a clearly articulated position, and a developed and well-reasoned set of arguments in support of that position. Again, some recognition of the limits and weaknesses of one’s arguments was helpful. Also, points were given for clear organization and presentation.

9 Conclusion

As I indicated above, I was generally quite satisfied with the quality of the exams that were submitted. My sense is that the vast majority of you have a solid grasp of basic property law doctrines and the policies underlying them. I hope that this memo will give you some useful information to help you understand how you did on the exam, what you did well, what you could have done better, and ultimately why you received the grade you received. However, if you have any questions after having read your exam, the sample answers, and this memo, please feel free to swing by my office (either at office hours or by appointment), and I would be happy to discuss the exam with you.

I really enjoyed having you all in my class this past term, and look forward to seeing you in the upcoming years!