Someone contacted me off list and asked if my way of viewing the law of covenants as a kind of zoning law "is... perhaps the best way to make sense of the otherwise somewhat troubling Shelley v. Kraemer?" And I wrote back to say that his point is well taken.
When I teach Shelley, I point out to the class that the real state action in the case was not judicial enforcement of a private agreement between A & B (as when A sues B to enforce a promise B made to A), but rather the body of law known as covenants running with the land, which I view as a kind of zoning law in which the govt delegates zoning rulemaking to the original covenanting parties and thereby allows A & B to write the rules that govern C, D, E, etc. So when C attacks a racially restrictive covenant under the EPC, he is attacking not so much the covenant itself as the body of law that allows A & B to!
regulate
C's use of his property.
Rick
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
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