In considering restrictive covenants in land deeds, there are two general ways to approach the underlying legal theory. First, the contract theory of equitable servitudes looks at a servitude or a covenant as a device creating a contractual relationship between the parties. So if O conveys a parcel of land to A by a deed stating that the land may only be used for residential, single-family housing, under the contract theory, the deed operates as a contract between O and A. At this point, the normal principles of contract law would apply to the transaction.

The other approach is the property theory, which would view the same deed not as a legal contract, but as a promise enforced in equity. Under this view, the deed does not create a contractual relationship between two parties but rather, it places a figurative asterisk on the land itself. Instead of A contracting to build nothing but a residential, single-family dwelling on the parcel, the parcel has instead been more or less permanently earmarked for that purpose, regardless of who may subsequently posses it.

The vast majority of legal scholars and law courts have adopted the property theory. The harshness of this approach can be seen in cases such as Western Land Co. v. Truskolaski, in which the defendant land company in 1941 subdivided a 40-acre lot, placing a restrictive covenant on each subdivided lot stating that they were to be used to residential purposes only, and forbidding their use for mercantile businesses. 495 P.2d 624 (Nev. 1972). Almost thirty years later, the very company which had originally owned, subdivided, and restricted the lots, sought to build a shopping center on several of those adjoining lots, which it still owned. The individual owners of the other lots filed suit seeking to enjoin the company from doing so, citing the restrictive covenants which the defendant had itself created. The court held that the covenant still stood and that the land company could not build a shopping center there.

Against this backdrop we see the Restatement (Third) of Property, Servitudes § 3.2 (2000) which appears to be swinging the balance the other direction. It rejects out of hand the common law analyses of “touch” and “concern” which are crucial questions in determining the validity of real covenants, opting instead for a default rule holding all covenants to be valid and giving preference to the intent of the parties. Furthermore, the Restatement declares invalid any servitude or covenant which “is illegal or unconstitutional or violates public policy.” Do these criteria sound familiar? They should; they’re foundational in contract law.

The goal of practically every law student is to eventually land a job. To that end, many of us begin interviewing for clerkship and internships after our very first semester. There is a detailed etiquette when it comes to how to handle oneself in interviews and afterwards, an etiquette that apparently escaped Dianna Abdala, a recent law school graduate who participated in the following e-mail exchange while turning down a job offer she found to be beneath her:

Abdala:

Dear Attorney Korman,

At this time, I am writing to inform you that I will not be accepting your offer.

After careful consideration, I have come to the conclusion that the pay you are offering would neither fulfill me nor support the lifestyle I am living in light of the work I would be doing for you. I have decided instead to work for myself, and reap 100% of the benefits that I sow.

Thank you for the interviews.

Korman:

Dianna –

Given that you had two interviews, were offered and accepted the job (indeed, you had a definite start date), I am surprised that you chose an e-mail and a 9:30 PM voicemail message to convey this information to me. It smacks of immaturity and is quite unprofessional. Indeed, I did rely upon your acceptance by ordering stationary [sic] and business cards with your name, reformatting a computer and setting up both internal and external e-mails for you here at the office. While I do not quarrel with your reasoning, I am extremely disappointed in the way this played out. I sincerely wish you the best of luck in your future endeavors.

Abdala:

A real lawyer would have put the contract into writing and not exercised any such reliance until he did so.

Again, thank you.

Korman:

Thank you for the refresher course on contracts. This is not a bar exam question. You need to realize that this is a very small legal community, especially the criminal defense bar. Do you really want to start pissing off more experienced lawyers at this early stage of your career?

Abdala:

bla bla bla

So the moral of the story is to think twice before you press the “send” button. A little humility could save you a lot of humiliation.

That being said, in some cases flying off the handle may not be so bad after all. In the infamous “monkey scribe” voicemail, then-associate Ankur Gupta left an expletive-laced message for opposing counsel, a voicemail which quickly circulated and can be heard here (WARNING: Contains offensive matieral!). Mr. Gupta has since made partner at the firm, suggesting that there may in fact be a place in the legal community for certain contributors to this blog.

Since Spring Break is now upon us, and upon many other law students around the country, I’d like to share some wise words from our Director of Placement:

Do NOT, and I repeat, do NOT do anything stupid that you will have to report to the Board of Bar Admissions. Need I remind you that you a spending a great deal of money for your education…..don’t blow it all by doing something that will make all your hard work be for naught!

There is vindication for those of us who have refused to buy into the liberal hype of global warming over the past several years. It used to be that suggesting global warming was a myth was a virtual invitation to ridicule. But my father tells stories of being in high school and being shown videos depicting mock news reports in the year 2000 which would feature segments on where you could go to obtain breathable oxygen. These sorts of government hypes have been around for a while.

So it was realtively big news last November when Weather Channel founder John Coleman called global warming “the greatest scam in history.” Then, just months later, came a report that all four major global temperature tracking stations recorded sufficient temperature drop over 2007 alone to erase the past 100 years of global warming.

Now John Coleman is calling on people to sue the global warming alarmists, including Al Gore, for fraud. This strikes me as a rather interesting idea. Al Gore and the creators of the carbon credit scheme have made big money off of the global warming hysteria and scientific evidence has been around for a long time that the earth is on a regular cycle of minuscule temperature variance to which human activity does not contribute. There might be merit to a suit alleging that Gore and his cohorts knew or should have known that global warming was false, but misrepresented the truth to induce people to buy his sham credits for his own personal gain.

It should be interesting to see if anyone takes Mr. Coleman up on his suggestion.

HT: The Legal Scoop

The war on drugs is over. Drugs win.

If heroin and cocaine were legalized, would this counrty realize a new wave of addicts? If the United States government sponsored the sale of methamphetamine would rehabilitation centers and county jails experience an impossible demand? Would crack pipe sales bitch-slap the tobacco industry? No.

Endemic to the debate is the concern that an entire generation of addicts is patiently awaiting legalization. How many potential heroin addicts refuse the syringe simply because it is illegal? This concern is without merit considering that an addict, heroin or otherwise, will go to any lengths to acquire his drug of choice, including robbery and prostitution. This concern is further flawed because it assumes there is nothing unique about an addicted person. addiction is realized organically, not by legality. There is no such thing as a recreational crack user, tempted by the occasional family reunion. That is ludicrous.

Legalization will decimate the illegal drug trade (yes, I realize decimate means one in ten, I’m writing figuratively dammit). This in turn will establish an indefinite cash flow for rehabilitation, education and community outreach. This country has been reacting to the drug problem in a cowboy fashion for too long. Solutions exist not from top to bottom, but rather within local communities nationwide.

I realize this is a sweeping condemnation of our country’s failed efforts to maintain even a sliver of sanity during a tireless crusade. Much debate is needed.