Contracts and mezuza
ArtSpitzer at AOL.COM
Mon Apr 21 14:09:25 PDT 1997
I thank Michael McConnell for his post on Shelley v. Kraemer. It seems to me
also that the case is a lovely application of sound common law public policy
reasoning in the real property field. As such, it would have been an
entirely proper and commendable decision by the Missouri Supreme Court. What
I have found puzzling when trying to think about Shelley is how the U.S.
Supreme Court gets to overrule the Missouri Supreme Court on a matter of
common law. Is there something in the U.S. Constitution that requires
Missouri to adhere to the common law rule that restraints on alienation of
real property held in fee simple absolute are disfavored?
In Prof. McConnell's role as explainer of why seemingly lawless liberal
decisions actually make sense, I would very much welcome his further
In a message dated 4/21/97 10:31:18 AM, michael.mcconnell at LAW.UTAH.EDU
(Michael McConnell) wrote:
>I sometimes think my role in life is to explain why
>seemingly lawless liberal decisions actually make sense.
>Shelly is such a case. The key thing to realize about
>Shelly is that restraints on alienation of real property
>held in fee simple absolute are disfavored under the common
>law and can be upheld only if they are found to serve
>public policy. Thus, the racially restrictive covenants at
>issue in Shelly were unenforceable as a matter of common
>law *unless* the public policy of the State of Missouri
>supported racial segregation, which would be
>unconstitutional. This is a perfectly straighforward
>application of standard "state action" doctrine.
>We should stop talking about "limiting" Shelly to racially
>restrictive covenants, which implicitly suggests that
>Shelly was unprincipled. If Shelly was right, it should be
>given as wide an application as its rationale demands.
>-- Michael McConnell (U of Utah)
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