I think Mrs. Loretto would succeed to the rights of her transferor. Depriving her of rights that her transferor held would effectively limit the rights of the transferor, by eliminating his or her right to transfer title free of the cable company's intrusion. True "prospectivity" would involve enforcement against one whose transferor had no right to complain, which often would be the case where the government that imposes the limitation of the property interest also is the government that creates the new property (or places formerly public property in private hands). A simple example: state government owns a building and then sells it after enacting statute requiring building owners to allow cable boxes to be placed on buildings.
Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein Sent: Friday, February 10, 2006 11:08 AM To: Law & Religion issues for Law Academics Subject: RE: Failure to restrict speech or photography asaconstitutionalviolation? Eugene may be right that prospective limitations would be treated differently -- but I'm not sure. If I remember correctly, the cable box was already on the roof when Mrs. Loretto bought the apartment building. That didn't seem to matter to the Court. But I've never seen a case involving newly privatized land. Alan -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, February 10, 2006 10:18 AM To: Law & Religion issues for Law Academics Subject: RE: Failure to restrict speech or photography asaconstitutionalviolation? Alan is certainly right that this is so as to limitations on real property. Even there, though, I wonder if there would be a taking if the limitations were *prospective* (to the extent that such a thing is possible for real property, much of which has already been doled out) -- if the state of Nevada, for instance, made clear that all newly privatized land in the state were subject to this or that easement. I would think that the answer would be "no." The limitations on the right of publicity that Marc is alluding to are, as I understand it, prospective. Nussenzweig never had a right to stop others from photographing him; the law in New York, to my knowledge, has been this way for a long time, and was likely this way when Nussenzweig was born in or moved to New York. So I don't really think that there'd be an analogy to a taking here. And I still don't see why the courts ought to talk about Nussenzweig's Free Exercise Clause rights, when the offending behavior is a private party's, not the government's. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
