"But to me, a question lingers: Why?"

Writes Justice Gorsuch, concurring, alone, in William Trevor Case v. Montana, issued this morning, which held that "police officers generally do not violate a person’s Fourth Amendment rights when they enter his house without a warrant, but with an 'objectively reasonable basis' for believing someone inside is in physical danger and in need of immediate aid."

Does the Fourth Amendment tolerate this limited emergency aid exception to the warrant requirement just because five or more Justices of this Court happen to believe that such entries are “reasonable”? Or is this exception more directly “tied to the law”? Carpenter v. United States, 585 U. S. 296, 397 (2018) (GORSUCH, J., dissenting). The answer, I believe, is the latter. 

"Dartmoor is the last place in England and Wales where the public have a right to camp on common land, thanks to the Dartmoor Commons Act 1985..."

"... which states: 'The public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation.' Alexander Darwall, a City fund manager and Dartmoor’s sixth-largest landowner, tried to end that right by taking a legal case all the way to the Supreme Court, where he argued that camping was not 'open-air recreation' and the legislation meant that anyone caught sitting down to rest, picnic or paint on common land could also be sued by the landowner for trespass...."

I'm reading "Extend wild camping rights across England, says Dartmoor boss/After the Supreme Court secured the right to backpack camp on Dartmoor, the national park’s chief executive has urged other national parks to be allowed to follow suit" (London Times).

"Kate Ashbrook, general secretary of the Open Spaces Society, said she would like to see a right to backpack camp in 'all open access country' in England, which is land the Countryside and Rights of Way Act 2000 gives a public right to walk across, such as mountain, moor, heath, down and common land.... 'We want a right of access to woodlands and watersides, places that were defined as open country in the Countryside Act 1968 but then nothing ever happened with that. Access close to homes would help the government with their target for green spaces within 15 minutes of everyone’s home.'"

ADDED: I was reminded of this passage in Bill Bryson's "At Home: A Short History of Private Life" (commission earned):

"I was painting less and less, fearing that if I got going and found it difficult to stop, I might end up like Van Gogh, a troubled artist with a room crammed full of pictures."

"Plus, I resented having to stretch a canvas over a frame, and I never liked the smell of oils and turpentine. I had lost patience with painting... In the mid-1980s, the art world was still wallowing in German neo-expressionism—large paintings with raw, overdramatic brushwork—whereas I was drawn toward Dada’s countercultural tendencies... It was at this point that I put on my first solo exhibition, Old Shoes, Safe Sex... One solitary review in Artspeak described it as 'such a neo-Dadaist knockout... Duchamp would have enjoyed these tributes....'... Around this same time, a couple of pictures of mine were part of a group exhibition in the East Village. When the show closed, rather than take the pictures home with me, I just chucked them into a dumpster. Dumpsters are everywhere in the streets of New York City, and you could probably find a number of masterpieces in them. I must have moved about ten times during my years in New York, and artworks were the first things I threw away. I had pride in these works, of course, but once I’d finished them, my friendship with them had ended. I didn’t owe them and they didn’t owe me, and I would have been more embarrassed to see them again than I would have been to run into an old lover."

From "1000 Years of Joys and Sorrows" by Ai Weiwei. 

As someone who studied painting and made a lot of paintings, I completely identify with the line "I resented having to stretch a canvas over a frame," the dread of yourself in the future in a room crammed with your own unloved pictures, and the desire to trash them all quickly, and thank God for dumpsters.

ADDED: It's interesting that he wrote "I didn’t owe them and they didn’t owe me" and not "I didn’t own them and they didn’t own me." That is, he wrote something that was translated that way. Anyway, it's about relationships, not property.

"Supreme Court Rules Against... a unique state regulation allowing labor representatives to meet with farm workers at their workplaces for up to three hours a day for as many as 120 days a year."

"Chief Justice John G. Roberts Jr., writing for the majority, said that 'the access regulation grants labor organizations a right to invade the growers’ property.' That meant, he wrote, that it was a taking of private property without just compensation. The decision did away with a major achievement of the farmworkers’ movement led by Cesar Chavez in the 1970s, which had argued that allowing organizers to enter workplaces was the only practical way to give farmworkers, who can be nomadic and poorly educated, a realistic chance to consider joining a union.... Supreme Court precedents draw a distinction between two kinds of government takings of private property — those that physically claim a property interest and those that impose a regulatory burden. The first kind — 'per se' takings — requires compensation even if the property interest in question is minor. But regulations amount to takings only where the economic effect is significant. Chief Justice Roberts wrote that the access regulation was a per se taking...."

Writes Adam Liptak in the NYT.

Here's the opinion, Cedar Point Nursery v. Hassid. It's a 6-3 decision, with the Justices dividing in the way you'd guess.

"If you can’t annoy somebody … there’s little point in writing" —Kingsley Amis/"Whatever they criticize you for, intensify it" —Jean Cocteau.

A couple quotes that jumped out at me from "Garner's Quotations: A Modern Miscellany," a book I'm enjoying immensely. Garner is Dwight Garner, a NYT book critic. It's a very smart sequence of quotations. 

Just a few more:

"I don’t care if people hate my guts; I assume most of them do. The important question is whether they are in a position to do anything about it."—William S. Burroughs 

"Thank God for books as an alternative to conversation" —W. H. Auden 

"Almost nobody dances sober, unless they happen to be insane" —H. P. Lovecraft 

"A monster is a person who has stopped pretending" —Colson Whitehead, “A Psychotronic Childhood”

"When I split an infinitive, God damn it, I split it so it will stay split" —Raymond Chandler

"If you removed all of the homosexuals and homosexual influence from what is generally regarded as American culture you would be pretty much left with Let’s Make a Deal" —Fran Lebowitz, in The New York Times 

"Don’t own anything you wouldn’t leave out in the rain" —Gary Snyder 

"All I want to do is sit on my ass and fart and think of Dante"—Samuel Beckett 

I hope that annoyed some of you or what's the point?

I'm so pleased to see that my old colleague Thomas Mitchell has won a MacArthur "genius" grant.

From the MacArthur Foundation website:

Thomas Wilson Mitchell is a property law scholar reforming longstanding legal doctrines that deprive Black and other disadvantaged American families of their property and real estate wealth. Heirs’ property, a subset of tenancy-in-common property, tends to be created in the absence of a will or estate plan and results in “undivided ownership,” which means each of the legally defined heirs own a fractional interest in the property (rather than a specific piece or portion of the property)....

"Individuals with stable property rights are better able to participate in meaningful ways in our society. Growing up in San Francisco, I witnessed with much sadness the dramatic displacement of African American residents and businesses that occurred in part because the people affected lacked secure property rights. As a lawyer, I realized that certain property laws needed to be changed and better policies needed to be developed to give urban and rural African Americans, and other vulnerable people, stronger property rights that could enable them to build wealth and preserve important aspects of their history and culture...."

"Looting... provides people with an imaginative sense of freedom and pleasure and helps them imagine a world that could be."

"And I think that's a part of it that doesn't really get talked about—that riots and looting are experienced as sort of joyous and liberatory."

Says Vicky Osterweil, author of "In Defense of Looting," interviewed at NPR.

[A] trope that's very common is that looters and rioters are not part of the protest, and they're not part of the movement. That has to do with the history of protesters trying to appear respectable and politically legible as a movement, and not wanting to be too frightening or threatening. Another one is that looters are just acting as consumers: Why are they taking flat screen TVs instead of rice and beans?... All these tropes come down to claiming that the rioters and the looters don't know what they're doing. They're acting, you know, in a disorganized way, maybe an 'animalistic' way. But the history of the movement for liberation in America is full of looters and rioters. They've always been a part of our movement....  

I don't know if other people in "the movement" are happy to see that idea spoken aloud. I've been hearing that there are 2 groups of people — the peaceful protesters and these mysterious other people, who, I've noted, the journalists don't seem to care to identify and investigate. Osterweil is saying these are not 2 different groups. It's one movement, and it's been going on for a long time.

Osterweil says it's a Republican/right-wing myth "that the small business owner must be respected, that the small business owner creates jobs and is part of the community." She conceptualizes the small businesses as agents of oppression within the community. They're not innocent victims, unfairly targeted. So don't worry about them. In fact, as Osterweil tells it, the looting is a cogent argument — an attack on "the idea of property... the idea that in order for someone to have a roof over their head or have a meal ticket, they have to work for a boss, in order to buy things that people just like them somewhere else in the world had to make under the same conditions." In this view, it's "unjust" to have to work to make money to buy the things you need and want, because "the world is organized that way, obviously, is for the profit of the people who own the stores and the factories." Looters "get to the heart of that property relation, and demonstrate that without police and without state oppression, we can have things for free.... Looting strikes at the heart of property, of whiteness and of the police."

That seems to present looting as street theater with a message. It makes an argument. A terrible argument. We've heard that argument in words many times over the years, and most Americans reject it. We want to work and build wealth and enjoy our lives and we want the great mutual benefits of hard work and wealth. Osterweil's looting is a switch from making the argument against property in words and to speak with actions — the destruction of property. But that doesn't make the argument more convincing! It's a nasty tantrum thrown because you can't convince people with your ideas. Ironically, fortunately, it makes the argument for the other side.

"Let my building burn, Justice needs to be served, put those officers in jail."

Words spoken by Ruhel Islam, owner of the restaurant Gandhi Mahal, in Minneapolis:



Via New York Magazine, which says:

Published on the restaurant’s Facebook page and since widely shared, [the daughter] Hafsa’s post asks people not to worry.... Hundreds have responded with messages of support and pride, with one person writing “thank you for living your public life with such integrity and continual love for your community.”... Ruhel’s words have been shared across social media by everyone from San Francisco Chronicle restaurant critic Soleil Ho, a former Minneapolis resident, to television host and chef Andrew Zimmern and activist DeRay Mckesson, as a powerful expression of the value of human life over property.

"Allemansrätten ('every man’s right') is in the Swedish Constitution, guaranteeing the right to camp, swim, build campfires and gather wild produce..."

"... such as flowers, mushrooms, and berries. Similar rights, whether formalized by law or accepted as historic custom, exist in Central Europe and the Baltics. Now, covid-19 has underscored the value of roaming rights. In Sweden, 80 to 90 percent of the country’s land mass is open for responsible recreation.... In the United States, I calculate that a little more than a quarter of the country is theoretically roamable. That sounds like plenty of space, but the great bulk of these places — mainly federal and state public lands — are either crowded (such as our heavily trafficked national parks), inaccessible or in sparsely populated Western states and Alaska.... [A]s the need for social distancing continues, many will begin to feel stir-crazy in the same pedestrian-unfriendly sprawl, on the same dangerous country roads and around the same dull cul-de-sacs. A more evolved understanding of private property will help us feel healthier, freer, more equal and more connected to our communities and local environments. It’ll help us get out of the house in good times and bad. A crisis gives us an opportunity to rethink how we normally do things...."

From "America may be opening back up, but most of our land is still off-limits. Let’s change that" (WaPo).

Own... rent... it's all a state of mind, isn't it?

I'm reading "They See It. They Like It. They Want It. They Rent It. Owning nothing is now a luxury, thanks to a number of subscription start-ups" (NYT):

Many young American urbanites have resigned themselves to a life of non-ownership, abandoning the dream of their parents and grandparents and great-grandparents before them, often out of financial necessity. But renting isn’t just a matter of necessity these days. It’s become almost posh....

“We were raised to save and invest and buy a home and do all of these things,” said Miki Reynolds, 38, who pays a monthly fee for much of what she uses in her day-to-day life in Los Angeles. “But my mentality to currently rent — it’s not YOLO. It’s more living in the present as much as planning for the future because I feel like nothing is guaranteed.”...

“I want nice things, but I’m also not going to drop thousands of dollars all at once on a bunch of things when I don’t know in a year if I’m going to be in the same place,” [said Lili Morton, 36, who recently moved to Seattle from New York].... “I’m going to get a facial or a massage or get my hair blown out,” she said, “things that make me feel good and happy, rather than some impulse purchase that makes you feel good for a bit but maybe you get tired of it.”

The NYT presents this as a youthful change, but the big change is all these services that make it easy to rent different kinds of things. And it's not just for the young, is it?

This is also something us Baby Boomers might want. Get rid of all the accumulated stuff — Marie Kondo the hell out of your life — unload the real estate and move somewhere with no idea if in a year you're going to be in the same place.

Permanence is an illusion, and if you like that illusion, you can bolster it with an ownership relationship to your things, but you can embrace and highlight impermanence through rental.

And these rental services are there to help (and to employ both Miki Reynolds and Lili Morton, you'll see if you look closely).

This subject calls to mind the old joke: "You don't buy beer, you rent it." It's funny (or was funny, when it was funny) because of the graphic depiction of impermanence. You have paid and you think you own what you bought, but it is only flowing through you. You can't hold onto that beer or, in the long run, anything else. If that troubles you, raise your spirits with a certificate of ownership.

"People would understand if this were a proposal that would destroy the Church of the Nativity in Bethlehem or the Temple Mount."

Said the British Columbia Civil Liberties Association lawyer about the proposal to build a ski resort in the place the Ktuxana Nation call "Qat'muk" — "where the Grizzly Bear Spirit was born, goes to heal itself, and returns to the spirit world."

If grizzly bears relocate out of this area, the Ktuxana believe that they will lose the guidance of the spirit.

[The developer of the resort] says he does not believe the resort would violate anyone's ability to believe in their faith or to practise it but is leaving it up to "constitutional scholars" to debate its impact on religious freedoms.

You probably don't believe there is any such thing as the Grizzly Bear Spirit, so bears leaving the area could not mean that any spirit has actually gone. The Ktuxana will not be stopped from believing anything they want to believe, but what they believe will change if the ski resort is built. The belief that the Grizzly Bear Spirit is there, benefiting them, will be replaced by a belief that Grizzly Bear Spirit has deserted them. So is it correct to say that the government, authorizing the building of the ski resort, puts a substantial burden on the free exercise of religion?

I don't know the details of Canadian law, but the case is reminiscent of the 1988 American case Lyng v. Northwest Indian Cemetery Protective Association, in which the Yurok, Karuk, and Tolowa tribes failed to convince the U.S. Supreme Court that the government puts a substantial burden on their religion if it allows the building of a logging road in the Chimney Rock area of the Six Rivers National Forest, which the tribes hold sacred.

Obviously, these cases only happen because the Native Americans do not — not in a legal sense — own the land.

"Elderly couple who cut wealthy neighbour's grass verge for 12 years given land in 'squatters' rights' ruling."

Adverse possession.... not in the U.S.... as you can tell by "verge."

"I continue to hope that logic will prevail."

Says a man who built a big swing set in his yard — in violation of the village code — and wants a variance. Part of his argument involves portraying the structure as a "wisteria arbor."

I'm not sympathetic to people in this position, which of course has nothing to do with logic. He's relying on the old strategy: Better to ask for forgiveness than permission. Every time that works, it erodes the belief that the rules apply to everyone.

“The village is interested in compliance. . . . The rules apply to everybody. They apply them equally,” said Suellen Ferguson, an attorney who represents Chevy Chase Village in the case. Ferguson said the swing set initially was described as an “arbor” in documents his family submitted requesting a variance. Then, things got a little wild. Time went on, swings started being attached... It became a play structure.”

The issue that could break the trance Trump has on some conservatives.

Eminent domain.

IN THE COMMENTS: AJ Lynch had written:

In the last 20-30 some years, the fed govt has not fixed even one big thing. Not one. Simplifying the tax code, securing the borders, infrastructure, longterm national defense plan, reforming the 80 year old bankrupt social security system, the economy and jobs, a consensus & sensible foreign policy. Those are big things I consider as needing fixing. Yet not a one has been fixed in 20-30 years. I think the voters feel Trump will fix at least one big thing and that is what counts. Voters won't care about this eminent domain case or any other crap MSM libs dig up unless the voter is just looking for an excuse to vote for the same old same old Dem BS [is that perhaps you Althouse?]

My response was:

Fixing one big thing... sounds like what Obama did.

Reading the rest of the comments this morning (Sunday, 6 a.m.), I realize that AJ Lynch and many others didn't understand the point in the post, and I feel that almost no one understood my response to AJ Lynch.

First, the post was not about caring about "this eminent domain case," but the way Trump's use of eminent domain should undercut the belief that Trump is a conservative. Trump's favorite words include "big" and "love." You're going love the big things he's going to do. It's gonna be great. Trust him! If that pumps you up, you are not conservative. Or it's not the conservative part of you that is responding to Trump. So what is it? Illegal immigrants?

Second, this idea of fixing one big thing. That's what Obama did with health care. He focused on one big problem that needed fixing, and he devoted his presidency to that one great reform. Oh, but you don't like that fix, perhaps. What makes you think you're going to like Trump's big fix? He's mostly threatening to fix illegal immigration, and sure, that, like health care, is a huge problem. How do you think Trump's ideas about that are going to work in practice? You think that will be less of a clusterfuck than Obamacare? It will be more. Much, much more. Anyone who's leaning back and enjoying the idea of Trump "fixing" things for us is juvenile, dreaming of magic big government. Again: not a conservative. Hopey-changey.

That case about raisins is "an important victory for property owners."

Ilya Somin says about today's new opinion in Horne v. Department of Agriculture.

Chief Justice Roberts writes the main opinion, joined by Justices Kennedy, Scalia, Thomas, and Alito and in part by Justices Ginsburg, Breyer, and Kagan. (Only Justice Sotomayor dissents.) Excerpt from Roberts:

There is no dispute that the “classic taking [is one] in which the government directly appropriates private property for its own use.”...  Nor is there any dispute that, in the case of real property, such an appropriation is a per se taking that requires just compensation.... Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.

And just as when it takes your raisins.

ADDED: In case you're wondering if the Justices talked about the notorious Kelo decision. The answer is, one Justice did. Justice Thomas wrote:

The Takings Clause prohibits the government from taking private property except “for public use,” even when it offers “just compensation.” U. S. Const., Amdt. 5. That requirement, as originally understood, imposes a meaningful constraint on the power of the state—“the government may take property only if it actually uses or gives the public a legal right to use the property.” Kelo v. New London, 545 U. S. 469, 521 (2005) (Thomas, J., dissenting). It is far from clear that the Raisin Administrative Committee’s conduct meets that standard. It takes the raisins of citizens and, among other things, gives them away or sells them to exporters, foreign importers, and foreign governments. 7 CFR §989.67(b) (2015). To the extent that the Committee is not taking the raisins “for public use,” having the Court of Appeals calculate “just compensation” in this case would be a fruitless exercise.

Get ready for the new Supreme Court decisions.

The outpouring begins at the top of the hour. Follow the live-blog at SCOTUSblog, here.

UPDATE 1: Kimble v. Marvel Entertainment. Spider-Man case... affirmed. 6-3. The dissenters are Alito, with Roberts and Thomas. The Court adheres to a precedent that said "a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se."

UPDATE 2: Los Angeles v. Patel, Sotomayor writes, affirming the 9th Circuit, which protected a 4th amendment right relating to hotel registries."This is a strong decision for Fourth Amendment lovers." Here's the PDF of the opinion. It's a 5-4 opinion, a liberal/conservative split, with Justice Kennedy joining the liberals.

UPDATE 3: Kingsley v. Hendrickson. Split 5-4, in the same pattern as in Patel. The 7th Circuit is reversed. "Kingsley was waiting [in a Wisconsin jail] for trial on a drug charge when he got into a dispute with jail officers, who handcuffed him, forcibly removed him from his cell, and later used a taser on him. Kingsley then filed a lawsuit, alleging that jail officials had used excessive force. The question before the Court was what standard of review should apply to an excessive force claim by a pretrial detainee.... The Court ruled in favor of Kingsley, holding that courts should apply an objective test – the same Fourth Amendment excessive force test that applies to people who have not been arrested."

UPDATE: Horne v. Department of Agriculture. "Fifth Amendment requires the government to pay just compensation when it takes personal property, just as when it takes real property." That's the last opinion of, so none of the hotly anticipated cases today.

Tiny-house-ism.

I'm not buying the extreme libertarianism of this video, but I'm interested in the design of tiny houses, and the video is well made and presents a topic worth discussing.

"'I don’t encourage anyone to protest by destroying other people’s property,' said Ai, apparently forgetting that time..."

"... he dropped Han dynasty urns, cut up shoes, wrecked a bunch of chairs, and ruined some perfectly good bicycles. Mr. Ai claims that the Miami vase-smashing is 'very different,' because when Ai ruined pots and bikes and the lot, they 'raised some new questions.'"

(I previously discussed this art vandalism conundrum here.)

IN THE COMMENTS: American Liberal Elite said (quoting the linked article):

"It's a fair point to say that Ai owned the objects he destroyed, while Caminero did not." 

So, of course, it's a point, but is it a conclusive consideration, especially when we are talking about ancient artifacts? Do you accept destruction of unique objects? This reminds me of the flag-burning cases. To those who wanted it to be possible to punish someone who conveyed his message by burning an American flag, was it enough of an answer to say that the protester was burning his own flag? Don't you think that the destruction of ancient artifacts could be banned and should at least be condemned, even when it's the destroyer's own property? One could also view it as morally wrong to destroy any useful object, and it's certainly fair to express disapproval of expressive conduct that comes in the form of destroying things.

When a woman does something like this, it's supposed to be hilarious.

Like: good for her. But this is flagrant destruction of property and — as we say in tort law   the intentional infliction of emotional distress. It's not funny at all. It should not be encouraged, and it's not even pro-woman to celebrate it, because what is required to find this funny is a foundational belief that women are really too weak to actually hurt anyone seriously. Only men are dangerous. This insults men and women.

And I realize that I'm encouraging the encouragement by linking to that article. Sorry.

By the way, the other woman in this story could have been maliciously screwing up the relationship and deliberately provoking the tortfeasing woman's rage. The man, whom we're expected to believe the enraged woman had loved, was never given a chance to defend himself. His guilt is presumed. Depriving the male of self-defense is an element in classic female revenge scenarios where a man is attacked as he sleeps.

In this current story, the man's body isn't attacked at all, as the pusillanimous woman takes aim at his property. We're expected to laugh as we imagine him frantically searching for his valuable personal items — including his laptop — before somebody else takes them.

"[T]he earliest farmers expended way more calories in growing food than they did in hunting and gathering it."

So, why do it?

These societies had seen the value of owning stuff – they were already recognizing "private property rights," [said says Samuel Bowles, the director of the Behavioral Sciences Program at the Santa Fe Institute in New Mexico]. That's a big transition from nomadic cultures, which by and large don't recognize individual property. All resources, even in modern day hunter-gatherers, are shared with everyone in the community....

[And t]he early farmers had one advantage over their nomadic cousins: Raising kids is much less work when one isn't constantly on the move. And so, they could and did have more children.