The Louisiana Supreme Court recently decided a case involving private insurance of the flood damage resulting from Hurricane Katrina. The insurance policy at issue, like almost every other insurance policy that is not subsidized by the NFIP, contained the standard exclusionary clause for flood damage. The trial court and court of appeals both ruled that the word "flood" as used in the policy was ambiguous and, therefore to be construed against the insurance company. Those courts further found that because the flood that caused the damage resulted from failed levees and because "flood" as construed by the courts did not exclude flood damage from man-made causes, the policy covered the damage. The total judgment against the insurance company was upwards of $800,000.
The Louisiana Supreme Court overturned the lower courts, however, and declared that "...the entire English speaking world recognizes that a flood is the overflow of a body of water causing a large amount of water to cover an area that is usually dry
land," and that "flood" was therefore not ambiguous.
The disaster in New Orleans of 2005, due to Hurricanes Katrina and Rita, should serve as a warning to all of us that building things in the path of destruction is a bad idea. Insurance companies caught onto the idea years ago and began excluding certain types of damage from their coverage. Because of the greatly heightened risk factors associated with buildings in flood-prone areas, private insurers got out of the business of insuring flood damage. Our federal government, in all of its wisdom, took the place of the market-driven insurance industry and began subsidizing the development of high flood risk areas. Not surprisingly the program is now close to bankrupt, with a Congressional overhaul in the works that, instead of cutting back the program and acknowledging that some areas simply do not conduce to development, adds wind coverage to the mix and puts the NFIP in arguably worse shape than it ever has been.
Meanwhile, we have sensible courts like Louisiana's Supreme Court who read private policies as they were intended to be read and continue to allow private insurers to contract out of covering flood damage. On the whole, its an untenable situation that seems to have no good end in sight.
Here in SC, meanwhile, we have continuing coastal development (that is not only increasing in volume, but also in size and value) as well as developers trying to build on our riverine flood plains. All this in the wake of some of the worst floods on record in the Midwest.
The Louisiana Supreme Court opinion can be found here.
Tuesday, April 08, 2008
Monday, April 07, 2008
SC Rule for Adverse Possession
Google Analytics tells me that a lot of people wind up on my site when searching for the SC rule for adverse possession. I suppose that's because of a post I wrote a while back called "Rule By Adverse Possession," which really has little to do with the actual rule. So, in order to satisfy the masses, here it is, the SC Rule for Adverse Possession:
"To constitute adverse possession, the possession must be continuous, hostile, open, actual, notorious and exclusive for at least ten years." Knox v. Bogan, 322 S.C. 64, 472 S.E. 2d 43 (S.C. Ct. App. 1996).
There it is, the people wanted it, and the people got it.
"To constitute adverse possession, the possession must be continuous, hostile, open, actual, notorious and exclusive for at least ten years." Knox v. Bogan, 322 S.C. 64, 472 S.E. 2d 43 (S.C. Ct. App. 1996).
There it is, the people wanted it, and the people got it.
Saturday, April 05, 2008
Individual Gun Rights and 6th Grade Grammar
The U.S. Supreme Court recently heard arguments over the Washington D.C. ban on handguns in District of Columbia v. Heller, No. 07-290. The reason the story is big news is that people seem to think that the time is right (e.g. we have enough Republican-appointed Supreme Court Justices on the bench) to challenge the Court's long-held view that the 2nd Amendment does not guarantee and individual's right to bear arms, but rather guarantees a collective right to bear arms- that is, in a nutshell, the right to raise a state militia.
Before I get into the 6th grade grammar lesson, here's a bit of Enlightenment political theory for you. The founding fathers of the U.S., and consequently our Constitution, were heavily influenced by Enlightenment-era political thinkers such as Locke, Hobbes, Burke, and Rousseau. One of the fashions of the time was to write about theoretical, political utopias, the most influential of which (at least in terms of our Constitution) centered around democratic theory- that is, the logic behind democracy. The fashion was to begin the book with a picture of man in "the state of nature," and to show how man came out of that state and into civilized society, most often via a social contract. The idea was that man, while in the state of nature, was perfectly free, however harsh life might be without civilization. Rousseau, in particular, picked up on this notion and espoused the idea that man only left that perfectly free state when resources around him became scarce and the need for collaboration with his fellow man arose. Then they entered into the social contract.
After man enters into a social contract, the dual nature of his existence arises (that is the separation of "man" and "state") and a problem arises. How much of his liberty does man cede to the state? Locke thought that man retained a significant amount of liberty (or at least ought to), while Burke espoused a strong state wherein man retained very few liberties. One of the liberties that received a good bit of debate between the theorists was the so-called right of revolution. That is, the right of the people to declare their government illegitimate and shirk its chains (often very violently, see e.g., Burke's classic Reflections on the Revolution in France, wherein he argues a very weak, if nonexistent, right of revolution and points to the bloodshed and chaos of the French Revolution to illustrate his point).
This brings me to the 2nd Amendment. If you accept the proposition that our country was founded on Enlightenment political ideals, then it is not difficult to view the 2nd Amendment as the protection of our right of revolution. However, when you view our Constitution as it was originally intended, that is as the structural centerpiece of our national government, it is probably more accurate to say that the 2nd Amendment was intended to protect the States' right of revolution against the federal government. State constitutions, then, would be the proper outlet for any individual right to bear arms.
And now for the grammar lesson. With all that historical context in place, it is time to look at the text of the 2nd Amendment:
So let's separate the clauses. (1) A well regulated Militia; (2) being necessary to the security of a free State (notice that "State" is capitalized, this is how the States were referred to in the Constitution); (3) the right of the people to keep and bear Arms (notice that "people" is not capitalized); (4) shall not be infringed.
There is no question that clause 1 modifies clause 2. Let's keep those aside for a moment. There is also no question that clause 3 modifies clause 4. The central question in the argument over individual or collective rights to bear arms, then, is whether clauses 1 and 2 are independent of clauses 3 and 4. What's the 6th grade way of figuring that out? Switch them around: "The right of the people to keep and bear Arms shall not be infringed, a well regulated Militia being necessary to the security of a free State." Oops, that sentence doesn't make any sense. In this formulation, the formulation necessary to bolster the individual right argument, clause 2 is dangling. It doesn't stand alone. Thus, clauses 1 and 2 (which we've already agreed modify each other) must modify clauses 3 and 4. And there you have it, a 6th Grade grammatical analysis of the COLLECTIVE right to keep and bear arms.
Now, before members of the NRA start picketing my front yard, I would like to qualify my argument by noting that just because the right to bear arms is, in my view, a collective one, does not mean that the federal government has the power to pass a law banning all weapons. It does allow the states to regulate the ownership of weapons in a manner consistent with the 2nd Amendment (hence the proper prohibition of felons or mentally insane people from owning guns, or good laws that prohibit people with concealed weapons permits from bringing them into places that serve alcohol). We are far, far away from a time when the government will knock down the door of a law-abiding citizen and seize his firearms. We Americans, by and large, love our guns and the political will to take them away from us simply does not exist.
Before I get into the 6th grade grammar lesson, here's a bit of Enlightenment political theory for you. The founding fathers of the U.S., and consequently our Constitution, were heavily influenced by Enlightenment-era political thinkers such as Locke, Hobbes, Burke, and Rousseau. One of the fashions of the time was to write about theoretical, political utopias, the most influential of which (at least in terms of our Constitution) centered around democratic theory- that is, the logic behind democracy. The fashion was to begin the book with a picture of man in "the state of nature," and to show how man came out of that state and into civilized society, most often via a social contract. The idea was that man, while in the state of nature, was perfectly free, however harsh life might be without civilization. Rousseau, in particular, picked up on this notion and espoused the idea that man only left that perfectly free state when resources around him became scarce and the need for collaboration with his fellow man arose. Then they entered into the social contract.
After man enters into a social contract, the dual nature of his existence arises (that is the separation of "man" and "state") and a problem arises. How much of his liberty does man cede to the state? Locke thought that man retained a significant amount of liberty (or at least ought to), while Burke espoused a strong state wherein man retained very few liberties. One of the liberties that received a good bit of debate between the theorists was the so-called right of revolution. That is, the right of the people to declare their government illegitimate and shirk its chains (often very violently, see e.g., Burke's classic Reflections on the Revolution in France, wherein he argues a very weak, if nonexistent, right of revolution and points to the bloodshed and chaos of the French Revolution to illustrate his point).
This brings me to the 2nd Amendment. If you accept the proposition that our country was founded on Enlightenment political ideals, then it is not difficult to view the 2nd Amendment as the protection of our right of revolution. However, when you view our Constitution as it was originally intended, that is as the structural centerpiece of our national government, it is probably more accurate to say that the 2nd Amendment was intended to protect the States' right of revolution against the federal government. State constitutions, then, would be the proper outlet for any individual right to bear arms.
And now for the grammar lesson. With all that historical context in place, it is time to look at the text of the 2nd Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
So let's separate the clauses. (1) A well regulated Militia; (2) being necessary to the security of a free State (notice that "State" is capitalized, this is how the States were referred to in the Constitution); (3) the right of the people to keep and bear Arms (notice that "people" is not capitalized); (4) shall not be infringed.
There is no question that clause 1 modifies clause 2. Let's keep those aside for a moment. There is also no question that clause 3 modifies clause 4. The central question in the argument over individual or collective rights to bear arms, then, is whether clauses 1 and 2 are independent of clauses 3 and 4. What's the 6th grade way of figuring that out? Switch them around: "The right of the people to keep and bear Arms shall not be infringed, a well regulated Militia being necessary to the security of a free State." Oops, that sentence doesn't make any sense. In this formulation, the formulation necessary to bolster the individual right argument, clause 2 is dangling. It doesn't stand alone. Thus, clauses 1 and 2 (which we've already agreed modify each other) must modify clauses 3 and 4. And there you have it, a 6th Grade grammatical analysis of the COLLECTIVE right to keep and bear arms.
Now, before members of the NRA start picketing my front yard, I would like to qualify my argument by noting that just because the right to bear arms is, in my view, a collective one, does not mean that the federal government has the power to pass a law banning all weapons. It does allow the states to regulate the ownership of weapons in a manner consistent with the 2nd Amendment (hence the proper prohibition of felons or mentally insane people from owning guns, or good laws that prohibit people with concealed weapons permits from bringing them into places that serve alcohol). We are far, far away from a time when the government will knock down the door of a law-abiding citizen and seize his firearms. We Americans, by and large, love our guns and the political will to take them away from us simply does not exist.
Wednesday, April 02, 2008
Sore Loser
So I'm in my backyard transferring my tomato plants to their permanent homes when Cody, my dog, starts going crazy. I walk out to the street to check it out, and there, in my trashcan, is a stack of Brian Boyer political signs. I guess he figured he had a 70% chance of getting them in the trashcan of someone who didn't vote for him.
Oh well, at least we can buy beer on Sundays now.
Great Post on Obama-Muslim Hysteria
Check out this post from a new blogger on the topic of hysterical anti-Obama emails floating around the inter-web. Looks like sanity is finding new homes all around the South.
Further Circumstantial Evidence Tending to Show...
that the Vista Farms Disinformation Project is in bed with the powers that used to be in Cayce. Remember that official Cayce City News website? Turns out they're peddling the exact same propaganda as the Disinformation Project. I mean come on guys, can't you at least try and make it seem like the local government isn't run by a development company?
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