No For Sale Signs Allowed II

You may also like...

5 Responses

  1. Kevin C. Walsh says:

    This discussion of the effects of having an unconstitutional ordinance remain “on the books” is fascinating. It reminded me of this recent Second Circuit decision linked to by Howard Bashman yesterday. The decision grants qualified immunity to a police officer for arresting an individual who violated an anti-loitering statute that had been held unconstitutional several years earlier. I wonder whether this phenomenon is based in part, implicitly, on a confusion about judicial review — an erroneous assumption that the effect of a holding of unconstitutionality is to take the statute “off the books.” Courts sometimes use language suggestive of such an effect in severability decisions. Consider, for instance, Booker, in which the Court purported to “sever and excise” certain statutory provisions. The excision imagery is just a figure of speech, but it is misleading.

  2. Jack Preis says:

    There are so many interesting issues lurking in here. But the one that jumps out at me is the con law debate that pits judicial supremacy against departmentalism. The Village could defend itself, with Abraham Lincoln on its side, by arguing that Supreme Court opinions only bind the parties to the case and do not bind other actors. So Linmark Associates v. Willingboro only binds Willingboro, not the Village in this Chicago suburb. So, under departmentalism, the Village has done nothing wrong. Aaron v. Copper, of course, points the other direction. Fascinating stuff.

  3. Jim Maloney says:

    Enforcing unconstitutional statutes seems to be all the rage these days, and the Second Circuit held, just the other day in this case, that a police officer enforcing a statute that had been declared unconstitutional 18 years ago, but still remains “on the books,” has qualified immunity! So, yes, you can freely “violate” an unconstitutional law without fear of ultimate conviction, but you nonetheless ought to fear prosecution: you will still quite possibly be arrested and likely incur legal defense costs, and, after you’ve invested time, effort in money in seeking redress, you may not prevail in a subsequent 1983 action. So unconstitutional statutes have quite a strong deterrent effect, after all. I think we need a new doctrine here…

  4. Dave says:

    Maybe if someone explained damages and attorney’s fees under section 1983 to the kind folk of this suburb there would suddenly be a lot more interest in the constitutionality of bans on for sale signs.

  5. TalkingHead says:

    Don’t the real estate agents (at least those who are aware of Linmark Associates) owe their selling and buying clients some sort of fiduciary duty? This seems like self-dealing. Real estate are at risk of being disintermediated as sophisticated buyers and sellers are able to contract successfully for the purchase of homes, especially with the availability of “for sale” data on the Internet – and where permitted – “for sale” signs in front yards. Real estate agents add significant cost to their transactions, about 6% of the purchase price in my market, or 3% for seller’s agent, and 3% for buyer’s agent. In the absence of yard signs and adequate market data online, sellers and buyers alike are put in the position of relying on the middlemen.