Re: Home Schooling and Real Covenants

[Steven Jamar]

On Jan 4, 2006, at 2:52 PM, Rick Duncan wrote: I agree with Michael that courts may be reluctant to adopt my view of the law of running covenants as a type of zoning regime (actually it is not mine, I have heard others make a similar argument as a better way to understand Shelley). But again, once you distinguish between the private covenants themselves and the body of law that permits enforcement against non-covenanting parties, it is difficult to reject the conclusion that the law of covenants is state action and is a kind of zoning scheme. Although judicial enforcement between the original covenanting parties of the promises they actually made to each other may not be state action, legal enforcement against third parties looks very much like a regulatory program. And so back to contracts -- the body of law that permits parties to enforce their agreements.  The body of law argument is just a very tough one to make. The enforcement against others -- well my mortgage is with a company I never heard of -- a 3d party -- through assignment.  And is that not very much the same thing?  A  body of law that permits enforcement against me by someone I never met or entered into a contract with?  I consented to the assignment. They consented to assume the mortgage. Rights between parties who did not contract with each other are enforceable because a body of law says we do not need strict privity. And we could, of course, go on to warranty, and third party beneficiaries, and so on. Again, I think Rick's argument is flawed and wrong -- but still plausible enough to be entertained.  I just reject it. Steve --  Prof. Steven D. Jamar                               vox:  202-806-8017 Howard University School of Law                     fax:  202-806-8567 2900 Van Ness Street NW                   mailto:[EMAIL PROTECTED] Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/ "The best that education can give [is] the notion that responsibility and delight can coexist." Philip Pullman, crediting his secondary school teacher Enid Jones, in The New Yorker, p. 58 (Dec. 26, 2005 and Jan 2, 2006)

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