accompanied by a check for the fair market value of the thing taken.
I haven't been following this issue like I should be, but an objection does spring to mind that the value of an object like a house may not be convertable into monetary form. These cases may be uncommon, but it intuitively seems wrong to force the old lady to sell the house her family has been living in for four generations.
Whatever happened to the old days when companies didn't even bother with eminent domain when they didn't have to and instead used dummy buyers and dummy corporations to quietly buy up land they wanted for speculation at low costs before people even knew there was going to be a market for them?
Now they have to go running to the paternal government like a bunch of dependent children.
But the problem isn't with the power of eminent domain, because eminent domain was supposed to be forced (but paid for) transfer from private ownership to public ownership.
And that condition of public ownership already seems to have a number of practical controls built-in. There's going to be a limit to what New London is going to want to run publicly, and some accountability through elections as people will retain a say in what is done with the new public acquisition.
Once you allow the private transfer though, that practical control disappears. New London's not going to have to manage the property afterwards; Wal-mart (or whatever) will. Wal-mart isn't going to have to solicit votes or hold referendums to decide what to do with the land. Theoretically, the economic developer that obtains the land through eminent domain for public benefit could turn around and sell it with, as I understand it, no legal consequences.
the "taking" is actually accompanied by a check for the fair market value of the thing taken.
But doesn't the threat of eminent domain affect the "fair market value"? Property whose owner is reluctant to sell would seem to be worth more (if the owner can be persuaded to sell) than property that can simply be condemned under eminent domain proceedings.
Jim might not really think transferring the property to another private owner is any worse than keeping it to public use, but I do. Partly for the reasons Cala says, and partly because, well, I'm OK with the idea that private property may be taken with compensation if the community needs the land (rarely); I'm not OK with the idea that private property may be taken with compensation if the community decides it would be better off with someone else.
And--to go with what Michael says, I think--compensated taking is still a taking.
I'm sort of curious what the lawyers think about the following line of thought. (However, this comment does not constitute a request for legal advice. Attempts to send me a bill will be met with massive retaliation of a type TBD.) The medical marijuana decision was good for liberals, I thought--even though we don't like the immediate effect--because if the Court decided that the Commerce Clause forbade banning marijuana it could go on to decide that it forbade all sorts of stuff we like (and the decision wouldn't touch all that nasty locking people up on the government's say-so business). But I think maybe this decision wouldn't have been like that--if the Court had ruled against New London, it wouldn't necessarily have opened the door to takings doctrine that radically restricted government's regulatory power.
That's because the decision need only have restricted the government's power to take property. Now, to an all-out libertarian, ruling that you can't build a coal-fired power plant on your property without emissions control is taking your property. But all-out libertarians are, without undue offense, crazy. When land is regulated, it's not taken. The landowner can still use it in whatever ways are permitted by law, to any landowner. The regulation simply means that those who own land can't do anything they want with it. It doesn't reassign any property to anyone else.
To non-libertarians, taking is something pretty specific. It means that the person from whom something was taken doesn't have it anymore--they have no ownership rights--and someone else does. That someone may be the government, which is what eminent domain maybe should be about, or it may be another private entity. A decision that said "The government can't take land in order to give it to someone else" needn't impact regulations that don't involve taking land (or any other right) in order to give it to someone else.
Again, not my field, but takings clause jurisprudence has gone significantly wacko lately in the libertarian direction you describe. I haven't focused enough to be sure what I think, but my impression of Kelo is that, although what New London did was, IMO, bad and I punish them for it politically, calling it unconstitutional does take us further along the path to the Takings Clause that Ate the Government.
LB, if you have the power to punish people politically via a simple performative, I demand that you exercise it much more frequently.
Ha ha. Thanks for the quick response. From a not-your-field kinda perspective, do you think that an opposite decision on New London + Landsburgian takings doctrine would mean that there could be no government regulation at all? The nutty takings doctrine says AFAICT that when you regulate it's a taking, and you have to compensate the po' folks who've lost the right to send smoke into the air; if Kelo had gone the whole way the other way, it would've said government can't even take with compensation--put them together and do you have Libertopia?
And my sense in part--now I guess this is philosophical rather than legal (and not my field)--is that the two dimensions are separable. You could have a restrictive view about when the government is allowed to take stuff and a narrow view about what takings are (by which I mean, a view on which regulation doesn't count as taking).
The line of argument that the government should be able to take land, but not be able to then give (or sell) it to another private party, is not particularly persuasive. After all, New London could take your land, and then lease it to Wal-Mart. End result: New London owns the land, Wal-Mart runs the store. The varieties of leases that can be written by clever lawyers means that the "keep title in public hands" rule doesn't do much, substantively.
To mean anything, and to reach the opposite result, the Court would have had to have delved into what "public use" really means. And that can only be bad for people who think "public use" is the same as something that the government decides benefits the public.
Ok, "fair market value" is a weasel word. "Market value" is what the seller is willing to sell for. "Fair market value" is what a seller gets after an negotiation between the government and the end-user. Sellers are cut out of the loop. "Fair market value" is an imaginary amount calculated as if the actual buyer didn't exist.
Freemarketers who think that "charging what the market will bear" is perfectly fine when you're selling necessities to poor people often change their mind when a small property-owner tries to charge a big developer what the market will bear.
When eminent domain is used for public purposes such as roads I think that it's legit. What's been happening is that private purposes have been declared public purposes.
"Fair market value" is seldom enough to let the seller make good, unless I have been misinformed. Not only does the seller not get the legitimate profits they should expect when the property becomes valuable, but don't even get full replacement value of what's been taken. They get what they would have had to have sold for if they had decided to sell (which they didn't); not the amount it would take to start up obver again somewhere else with a comparable property.
This kind of abuse of eminent domain seem actually to fit in with the ultimate goal of abolishing ED -- just abuse it until people are mad, and then get rid of it.
[T]he Court would have had to have delved into what "public use" really means. And that can only be bad for people who think "public use" is the same as something that the government decides benefits the public.
Are there any of those around? I remember being rather pleased when the Court threw out Colorado's anti-gay amendment on the grounds that it served no mumble mumble [compelling interest?]. If there were a ruling that these boondoggles were not enough of a public use to justify ED, that wouldn't break my heart.
I mean, I don't know exactly how it would play out, but it doesn't seem obvious that the 'public use' clause needs to be made a dead letter in order to make it possible to build roads and parks.
You could have a restrictive view about when the government is allowed to take stuff and a narrow view about what takings are (by which I mean, a view on which regulation doesn't count as taking).
My abstract view is that I agree with you both that this separation is possible and that it is desirable -- regulation isn't taking, but taking should be limited to the classic roads&parks and other direct governmental uses, not including leasing to a private user. My ignorantly paranoid/legal realist fear, that drives my belief that Kelo wasn't so bad, is that any decision that strengthened the Takings Clause would be used as a tool to push us down the slippery slope to libertarian dystopia, a slope that we're already pretty far down in this regard.
(And I cannot politically punish people at will, except in my typo-driven delusions of grandeur.)
After all, New London could take your land, and then lease it to Wal-Mart. End result: New London owns the land, Wal-Mart runs the store. The varieties of leases that can be written by clever lawyers means that the "keep title in public hands" rule doesn't do much, substantively.
But under a lease, wouldn't the voters retain some control over the public (use) property (ability to revoke the lease, for example)? Of course I suppose you could write a lease that limits the public's control over the property, but then the problem would be with the lease, not eminent domain, right?
On the plus side, this ruling means New London could potentially take land from Wal-Mart and give it to someone like Costco, right?
This is a historical question and it could be wrong, but my guess is that eminent domain is never used to take land from anyone influential. There might occasionally be an enormous struggle between two big players, butmy bet is that by and large the deep pockets are safe from this.
I also can imagine the possibility (like a thought experiment) that a big developer might take someone's land by eminent domain, and then licenses someone else to run a different business of exactly the same type on the same parcel of land. So one restauranteur is driven out of business (with compensation) by the state, the state donates his land to someone else, who licenses a third person to do exactly the same thing that the first person had been doing, except that now the business is much more profitable since the area has been developed. Seemingly, part of the value of his original property (the possibility of an increase in value, the speculative part of ownership) was confiscated and given to someone else.
My real beef IS with what eminent domain can be used for. I think it should be defined narrowly. I've been watching Kelo with a fair bit of interest since my affluent community (household income, $80K; avg house price, $400K+) decided a couple of years ago that it might be worth pushing out a neighborhood of moderate-income homeowners (house prices: $100-150K) to make room for a parking garage, new office buildings, and a so-called retail promenade.
This is a private development project - no public involvement (yet). So eminent domain hasn't been deployed, but since the developer is linked to a large local employer, it's certainly being mentioned. The question is where people are supposed to go - of the 60+ homeowners, many were elderly who got scared and sold early, for $150-200K. Not much left in our area that's affordable at that price.
What gets me is the risk that this ruling will delude a whole generation of little municipal governments into thinking they DO know what they're doing in (sub)urban planning, and they'll all go nuts with "revitalization" efforts.
If there is anything the last 40 years should have taught us, it's humility. Those giant public housing towers? Yeah, disaster. Now the buzzwords are scattered-site housing and mixed-income neighborhoods. Not really sure those are the solution either, but it does show that we're still fumbling around trying to figure out what makes a neighborhood "viable".
The problem (and I'm sympathetic to it) is that nobody really knows where the tipping point is. I commute past a destroyed inner-city neighborhood every day. Do I want my inner-ring suburb to turn into that neighborhood? No way. Do I think my well-intentioned, $4100-a-year local municipal officials have a snowball's chance of ensuring that it won't? Not really.
Between gentrification and ghetto, I'd pick gentrification. But I'd rather not. I'd rather just keep living in my nice, clean, two-blocks from groceries, mail, bank, drugstore, movies, etc. house. If I'm going to be forced to give all this up and move away, I want it to be for some REAL public good - - a train station, a park, etc. - - not a Starbucks.
So I wish the Gang of Nine had pushed back a little more, myself.
Yeah, I've wondered whether--if the decision had gone the other way--it would only have served as fuel for the regulatory takings crowd.
However, I basically believe that this shouldn't be considered public use. I am not terribly concerned about the private corporation bit. I mean, a charter school might be a private corporation. I am concerned by the fact that a higher tax base is being defined as a a public use. Schools, roads, hospitals, and parks are okay, but not greater tax revenue.
15 -- I'm pretty sure that in time of war imminent domain has been used to convert industrial facilities from producers of consumer goods to producers of military goods. The industrial facilities selected were generally owned by powerful individuals. But they were handsomely rewarded.
I had a professor who liked to compare the military draft with imminent domain, using the above example as a jumping point. But he was, in general, an ass.
I don't know much about this case. I am going to argue that the regulation-as-takings argument is not conceptually stupid, though. It is kind of hard to address. If property ownership is a bundle of rights (it is), regulating use would be like taking only some of those rights, not all of them. Sure, you can covert the property, but you stand to lose a lot of money. You have lost the right to use the land in the way you wanted to use it. It is different in degree, not in kind, from taking all of the ownership rights.
As is, shareholders actually fear losing their shirts through some of these regulations. Those fears are well founded (or were back when we had a government willing to regulate). It is not suprrising that coprorations -- since they are not compensated -- would fight tooth and nail against environmental regulations.
The gut response is usually in favor of regulation, without compensation, but it's not that easy to marshal a cogent argument against the crazy Epstein regulation-is-taking school.
Text--I'm inclined to put a lot of weight on the reassignment thing. Regulation means you don't have the right to use the land the way you want it any more. But isn't that what happens every single time a new law is passed? When marijuana is outlawed I no longer have the right to grow marijuana on my property--is that a taking? I guess Epstein would say so.
I don't think it's that hard to marshal an argument against regulation-is-taking. If you think that owning property means having the right to do anything whatsoever you want with it, then regulation is taking. But there's no reason to think that. Property rights are part of a general social contract, and part of our contract says that the government has the right to pass regulations that can in some cases forbid you from doing stuff with your property that you could do before. This is very different from taking. In taking one person loses all their rights over some property. In regulation everyone surrenders the same rights over all their property to the general sovereign (to use Hobbesian terms).
It's not surprising that corporations fight regulation tooth and nail but they also fight tooth and nail for tax breaks and lots of things they don't deserve. If ExxonMobil wants to destroy our climate I don't see any reason why we should have to pay them before we can make them stop.
We don't want effective takings of course--regulations that just so happen to destroy the value of one person's properties--but I don't think that's any reason to describe all regulation as taking.
(Incidentally, I may be grumpier than usual about this because of Epstein. I've taught one piece by Epstein--on at-will employment--which was obviously written by someone who's never held an at-will job. The most insulting part was when he argued that, since at-will contracts are so widespread, they must be good for the employee, and went through a lot of foofaraw trying to figure out what this benefit was. Oddly enough, these arguments don't seem to have led him to give up his tenured professorship.
Though now that I think of this, in an indirect way I got a girlfriend out of the deal, so I shouldn't feel so vindictive.)
I'm pretty sure that in time of war imminent domain has been used to convert industrial facilities from producers of consumer goods to producers of military goods. The industrial facilities selected were generally owned by powerful individuals. But they were handsomely rewarded.
Actually, the only version I know of this story is of the U.S. taking assets belonging to wealthy individuals and compensating them "much less than the value of the properties and would have been inadequate to constitute just compensation if the patents belonged to non-enemy owners and were taken for public use under the power of eminent domain." This is U.S. v. Chemical Foundation. So there you had the gov't taking wealthy persons' property and paying them much less than it was worth (if it paid them at all).
Of course, those wealthy people were Germans. And bad America-haters every one.
The government ran the railroads towards the end of World War I, but then gave control back to the various companies. I don't know about compensation, though.
I think outlawing marijuana would actually be one of the stronger examples of a regulation-as-taking. By outlawing the drug the state has removed all worth from the product in legal transactions. Then again, it has only increased the value of the drug in overall transactions.
As far as the submitting-to-the-sovereign argument, it seems to me as though that could be used to justify actual property confiscation. Via Hobbes, we are all submitting to regulation, and that legitimates it, but how is that different from all of us submitting to the chance that our house might be taken away? I don't think it's different at all, except that we wrote this takings clause into the constitution, and we want to enforce it in some instances, and in some instances not. Sure, we all submit to regulations, but certain of them affect only a small number of people in a negative way. If a majority benefits to the detriment of a minority, there is no reason to think that the majority would restrain itself. The takings clause could be seen as a way to compensate those who a democratic majority would not otherwise compensate. I don't see how a regulation that bans a democractic minority from enjoying property in the way it was doing previously is functionally different from actual property confiscation, from a small number of people.
I want to see a distinction, though.
Presumably, if the land use is truly harming people -- such as through pollution -- there ought to be a way to address that through the tort system. But that is a whole other mess.
one way around it would be to say: regardless of conceptual problems, when the takings clause was written, the purpose was to compensate only actual property confiscation, not regulation. Then you would cite policy reasons for such. If that distinction has remained intact, and there is no pressing reason to abandon it, that should be enough to keep the distinction going, even if it is a conceptually difficult one.
This may not be the distinction you're looking for (this is all way out of my field anyway), but there is a difference between saying that no one can lawfully sell marijuana and saying that only the government can sell marijuana; that is, there is a difference between regulation and nationalization (which would be confiscation).
Is requiring a prescription for the purchase, and a license for the sale, of certain drugs a kind of taking?
I was thinking of someone who doesn't have any marijuana, but whose land is perhaps suited to growing marijuana--so they might have to rent it to a corn farmer for less profit than they could've got from a marijuana farmer. ISTM that Epstein would have to say that that person is harmed by the ban on marijuana, since they can't use their land for everything they'd like.
As for the Hobbesian thing--one of the things I'm thinking of here is that there are no inherent property rights (this is more radical than I want, but close). Property is socially constituted. We have, wisely, constituted property in such a way that the government can't just take your house and give it to someone else, and can't take your house even for a public purpose without just compensation. But--I mean, I just don't see the similarity between barring someone from enjoying their property as they had been and actual confiscation. It's like the difference between passing indecent exposure laws--which impact nudists, who can't go around the way they had been--and slavery--which means that the person has no liberty at all.
If we regulate pollution, that'll disproportionately affect people who own polluting factories, who won't be able to use those factories the way they had been. But it's not taking the factories away and giving them to someone else. It's saying "This noxious thing can't be done any more."
And I'm not sanguine about the tort system. Suppose there isn't currently a doctrine that pollution constitutes a tort. Either the judges find new grounds to sue polluters, which is much more arbitrary than democratic regulation. Or they just say, sorry, this wasn't in the system, there's nothing to be done about it. So it seems to me that using the tort system would mean that we could never pass any new regulation except by judicial fiat, and that would be bad.
25: That sounds congenial (27 was written after 24). The legal grounds for this aren't my department, but that sounds like a compelling enough legal argument. And for the conceptual distinction, I could just say: that's the social contract we have, and it's a good one.
26: I like the distinction--it seems to me that nationalizing a legal industry would require compensating the owners, and should.
Property is a social construct. I am totally with you on that. Without government enforcing property rights, there are no property rights. Same for private markets -- at least ones that involve more than bartering.
So once we say that private property is itself a construct of government -- of people cooperating together through whatever means -- then it seems ok that government should regulate the property. That's why the libertarian "taxes are immoral" argument is so crazy. You wouldn't have private markets capable of creating the type of wealth we enjoy without some sort of taxation. But I don't see how that argument stops at regulation. It seems like, if we can submit to regulation, we can submit to outright takings, and the only reason we don't submit to outright takings is that we have this takings clause, and we have interpreted it to mean that confiscation must be compensated, regulation not.
Property ownership is just of bundle of rights one can exercise over any given thing. You can give all of those rights away to people, or you can parcel them out in any number of ways. Ownership is divisible. You can chop it up. Taking all of the rights is different in degree from taking some of them, but it isn't different in kind.
Saying "this noxious thing can't be done anymore" is like saying -- that right you had to do that noxious thing -- we're taking it away.
Ideally, you shouldn't have the right to do noxious things -- you should be forced to pay for the wrongs through the tort system. But like you, I am not sanguine about the tort system either. If it worked, and pollutive harms were adequately redressed, then I would be more inclined to accept that regulation required compensation.
I was going to say -- you should also be punished criminally for doing noxious things. But that puts us back in need of a regulatory law. Maybe the distinction that's bothering me is between regulating actions because they cause actual harm to others, and regulating actions for some other reason. Maybe I am thinking the former ought not be compensated, and the latter ought to be. Can't say why yet.
Saying "this noxious thing can't be done anymore" is like saying -- that right you had to do that noxious thing -- we're taking it away.
But, quite often, our understanding of what is noxious develops through a historical process. Sometimes we say "this noxious thing can't be done anymore" but sometimes we say "this thing, that we didn't know was noxious, turns out to be noxious, so it can't be done anymore. Had we known that is was noxious in the first place, we would have regulated or prohibited it from the start."
I would think in most cases that we decide to ban noxious things, it is because we have just found out they are noxious, and didn't realize it before.
I am all in favor of banning noxious things through regulation or whatever means. When doing so requires that certain individuals stop using property in a way that they were previously allowed to do, I think the regulation deprives them of an ownership right. I am fine doing it, I just think it's not conceptually different from a taking.
You say: they would never have had that right had we known the use was noxious. That's true, but you can't reach back and say that therefore they never had the right.
re: 29 ( 27 is exactly what I think is wrong with the libertarian theory of the takings clause )
I think you have misconceived the libraterian view of the Takings Clause (as well as having vastly overestimated the extent to which that view has been adopted by any court). The pollution example is exactly not the right one. The law of nuisance (both public or private) makes clear that you can be enjoined from polluting your neighbors' property and made to pay compensation for any damage you cause. Thus, regulations preventing pollution have, in general, nothing to do with the Taking Clause because they relate to actions which the property owner had no legal right to do in the first place. The problem is where regulation prevents completely proper and economically valuable activities--for example, building a home--for the benefit of the public in general--for example, passing a law limiting development to make a coastal area more attractive, and not allowing a variance to existing property owners. Here, most of the value from the lawful use of the property gets sucked out of it for the public in general, with no compensation to the individuals who lost the value of their property.
When doing so requires that certain individuals stop using property in a way that they were previously allowed to do, I think the regulation deprives them of an ownership right. I am fine doing it, I just think it's not conceptually different from a taking.
This is the argument that was used against economic regulation in the New Deal:
On the other hand, if I am wrong in my main contention and if Congress may lawfully regulate such production -- on the general welfare theory or some other equally vague -- it by no means follows that the entire cost of the regulatory process may be taken out of the pockets of the processors. As the Fifth Amendment applies to the exercise of all the powers of government it must apply to the regulatory power of Congress no matter whence derived.... to compel the stronger group to extend financial aid to the weaker comes perilously close to taking A's property and giving it to B.
Thus George Wharton Pepper, in U.S. v. Butler (against the AAA). This doesn't mean your argument is wrong, text, but it does mean it could have some pretty far-reaching implications.
would you concede that there are some wrongs that ought to be addressed through nuisance, but aren't for a variety of reasons -- costs spread to far, inability to define a class subset -- such that a regulatory taking (without compensation) is necessary to redress the wrongs.
if Kelo had gone the whole way the other way, it would've said government can't even take with compensation
This was not a possible outcomte of Kelo, since it would render the Takings clause dead letter.
Weiner - It doesn't seem like you're dealing with some of the trickier types of regulations which might be ( or have been) seen as takings. Three general examples (I'll save specifics): 1) Regulations requiring landowners to put certain physical objects permanently (as long the regulation remains in effect) on their property. 2) Regulations which require that you let other people make a particular use of your property. 3) Regulations declaring particular buildings to be landmarks which cannot be altered.
If a regulation addresses activities that are nuisances, the regulation is not a regulatory taking, because it does not take a right which the property holder had.
slo -- that's really interesting. I don't like being on the side of the anti-newdealers.
I guess I'd say -- in situations where a new regulation imposes costs on property owners that are not dispursed, and we think that is ok, it is because we intuit that there was some sort of nuisance or tort wrong that has not been redressed. The regulation is necessary to overcome the wrong. Because the property owner caused the harm that we are now redressing, we don't think he or she need be compensated.
idealist -- tthe property owner had the right because although the activity caused a nuisance, in the plain language meaning of that term, it was not redressable via the nuisance tort, for a variety of reasons. But for the regulation, the property owner could commit the wrong without paying for the harms.
40--no, I wasn't really; I'm trying to set up a principle--there is some line to be drawn. Where it gets drawn, I don't know.
My original target was really Steven Landsburg, Man of Straw. He really seems to think Tahoe should've been decided so as to mandate compensating everyone for everything.
To be clear, I realize that you can come up with plenty of examples which are not so clear cut as the regulating pollution example. I am not completely in the Epstein you-can-only-regulate-it-if-it's-a-nuisance camp. The problem with current Takings Clause law is that the courts are way over on the other side of the Epstein view.
I should know this, studying history and all, but I don't: did anyone have to make a legal justification for not compensating slaveowners after the Civil War, or was the matter simply not addressed?
I think most emancipations in other countries did involve compensation.
re: 44. You have stated the justification for regulation, and I think it is almost universally recognized as a good one. The problem begins when the activity is not a nuisance.
and I'm afraid I'm with you when the activity isn't any sort of nuisance -- legally redressable or not. Depriving a usage right isn't conceptually different from depriving any other ownership right, or all of them -- it just isn't as much of a deprivation.
The only time I can recall agreeing with anything Landsburg wrote, or at least the main point of the thing he had written, was when he argued for the controversial proposition that Dylan Thomas was a good poet.
One reason to think there would have been better results from the opposite decision in Kelo is that if muncipalities didn't have eminent domain taking ----> transfer to private person/ corporation on their menu of options, employers couldn't threaten to withdraw from the community unless e.d. is used. Some of the most egregious past uses of e.d. have been of this form.
my only reprive is that there are lots of situations in which uncompensated regulation is required to redress nuisance harms that tort law does not redress.
Some of the most egregious past uses of e.d. have been of this form.
I now realize that this might sound patronizing, since this thread has switched to containing people who have far more legal training than my one year to date.
although I've had a few more years of training, I will admit that almost all of my eminent domain opinions I have formed during the course of this thread -- I think I read half of an article by Epstein on the subject my 1L year, and that is it. For some reason, didn't cover it much in Con Law I. So patronize away.
I now realize that this might sound patronizing, since this thread has switched to containing people who have far more legal training than my one year to date.
On the contrary, you are probably much better equipped to discuss constitutional law issues than any practicing lawyers, unless they are part of the rare breed that does constitutional law for a living, and thus you should do so. Now, I'll take you on if you want to have a heated debate about the current interpretation of the New York Civil Practice Rules in New York County . . . but really, who (except maybe LizardBreath) would want to argue about that?
The OED endorses both geometrical and rhetorical meanings for both hyperbolic and hyperbolical. Despite the fact that context essentally always determines which meaning of either word is intended, I'd really like there to be a convention where one is only used one way and one is only used the other. I don't care what this convention is.
For the record, I think that the issue of whether ED should be used to transfer property from one private owner to another, is still a valid one. I have no sympathy at all with the broad extensions of the Takings principle. What I see being done with baseball stadiums, etc., seems to be an egregious expansion of the legitimate practice of ED. I actually have no opinion at all about any of the legal questions, but I think that it would be better to make abuses illegal rather than just say "if government errs, vote them out?" or "It's up to Congress", since bribery is so rife in government.
What about Midkiff? The vast majority of all private land in Hawaii was held by a small handful of large landowners, which entered into long-term ground leases for housing development. After a while, people realized that those long terms weren't all that long and that there was going to be a very painful day of reckoning when they started to expire. Instead, the state passed a law allowing it to acquire the fee interests via eminent domain and sell them to the leasehold homeowners. That statute was upheld by the Supremes in Midkiff.
Most (all?) of the anti-Kelo commentary would suggest that Midkiff was wrongly decided, but I'm not ready to concede that it would be a good thing for land ownership in this state to be even more feudal than it still is. Eminent domain has also been used to create privately-held railroad and utility corridors, which is at least arguably a legitimate public purpose. So I'm not at all convinced that a bright-line, no-transfers-to-private-parties rule would work. That leaves us to decide whether we'd rather have local legislatures or the Supreme Court in the business of deciding what uses by private parties count as "public." Between the history of the Lochner era and the current takings mess, I'm not sure that the Court is the right answer. OTOH, when I look at projects like New London's, stadium deals, etc., I don't trust local legislatures much, either.
What rubbish. There is no meaning whatsoever to "fair market value" except what someone will willingly exchange, and eminent domain is only used when the owner is NOT willing to sell at the state's price.
It's not always at "Fair Market" value if the owners of the land it was taken from are pissed off about, which it appears that some still are from when George W. Bush owned the Texas Rangers and took land by eminent domain for a parking lot around his new stadium. Details at: http://www.menrohm.com/2005/06/george-bush-and-eminent-domain.html
My sense is that Jim Henley would be just as mad if the government forcibly purchased someone's property to run its own amusement park as if it forcibly purchased someone's property to sell to an amusement park operator.
But the point is that running an amusement park is inherently not a "public use," which is why the government shouldn't get involved in it. I think that the general point is that government should have a few limited, well-defined functions, and eminent domain should be restircted to instancs where taking the property serves a legitimate government function. For the government to take over a function (e.g. running an amusement park) for which is was never intended does not redefine public use and thus make the eminent domain justified.
accompanied by a check for the fair market value of the thing taken.
I haven't been following this issue like I should be, but an objection does spring to mind that the value of an object like a house may not be convertable into monetary form. These cases may be uncommon, but it intuitively seems wrong to force the old lady to sell the house her family has been living in for four generations.
Posted by Michael | Link to this comment | 06-27-05 12:46 PM
Unf, what do you think of this take on the decision?
Posted by ben wolfson | Link to this comment | 06-27-05 12:50 PM
Whatever happened to the old days when companies didn't even bother with eminent domain when they didn't have to and instead used dummy buyers and dummy corporations to quietly buy up land they wanted for speculation at low costs before people even knew there was going to be a market for them?
Now they have to go running to the paternal government like a bunch of dependent children.
Posted by eb | Link to this comment | 06-27-05 12:51 PM
But the problem isn't with the power of eminent domain, because eminent domain was supposed to be forced (but paid for) transfer from private ownership to public ownership.
And that condition of public ownership already seems to have a number of practical controls built-in. There's going to be a limit to what New London is going to want to run publicly, and some accountability through elections as people will retain a say in what is done with the new public acquisition.
Once you allow the private transfer though, that practical control disappears. New London's not going to have to manage the property afterwards; Wal-mart (or whatever) will. Wal-mart isn't going to have to solicit votes or hold referendums to decide what to do with the land. Theoretically, the economic developer that obtains the land through eminent domain for public benefit could turn around and sell it with, as I understand it, no legal consequences.
Posted by Cala | Link to this comment | 06-27-05 1:04 PM
the "taking" is actually accompanied by a check for the fair market value of the thing taken.
But doesn't the threat of eminent domain affect the "fair market value"? Property whose owner is reluctant to sell would seem to be worth more (if the owner can be persuaded to sell) than property that can simply be condemned under eminent domain proceedings.
Posted by eb | Link to this comment | 06-27-05 1:17 PM
Jim might not really think transferring the property to another private owner is any worse than keeping it to public use, but I do. Partly for the reasons Cala says, and partly because, well, I'm OK with the idea that private property may be taken with compensation if the community needs the land (rarely); I'm not OK with the idea that private property may be taken with compensation if the community decides it would be better off with someone else.
And--to go with what Michael says, I think--compensated taking is still a taking.
I'm sort of curious what the lawyers think about the following line of thought. (However, this comment does not constitute a request for legal advice. Attempts to send me a bill will be met with massive retaliation of a type TBD.) The medical marijuana decision was good for liberals, I thought--even though we don't like the immediate effect--because if the Court decided that the Commerce Clause forbade banning marijuana it could go on to decide that it forbade all sorts of stuff we like (and the decision wouldn't touch all that nasty locking people up on the government's say-so business). But I think maybe this decision wouldn't have been like that--if the Court had ruled against New London, it wouldn't necessarily have opened the door to takings doctrine that radically restricted government's regulatory power.
That's because the decision need only have restricted the government's power to take property. Now, to an all-out libertarian, ruling that you can't build a coal-fired power plant on your property without emissions control is taking your property. But all-out libertarians are, without undue offense, crazy. When land is regulated, it's not taken. The landowner can still use it in whatever ways are permitted by law, to any landowner. The regulation simply means that those who own land can't do anything they want with it. It doesn't reassign any property to anyone else.
To non-libertarians, taking is something pretty specific. It means that the person from whom something was taken doesn't have it anymore--they have no ownership rights--and someone else does. That someone may be the government, which is what eminent domain maybe should be about, or it may be another private entity. A decision that said "The government can't take land in order to give it to someone else" needn't impact regulations that don't involve taking land (or any other right) in order to give it to someone else.
Thoughts?
Posted by Matt Weiner | Link to this comment | 06-27-05 1:43 PM
Again, not my field, but takings clause jurisprudence has gone significantly wacko lately in the libertarian direction you describe. I haven't focused enough to be sure what I think, but my impression of Kelo is that, although what New London did was, IMO, bad and I punish them for it politically, calling it unconstitutional does take us further along the path to the Takings Clause that Ate the Government.
Posted by LizardBreath | Link to this comment | 06-27-05 1:47 PM
LB, if you have the power to punish people politically via a simple performative, I demand that you exercise it much more frequently.
Ha ha. Thanks for the quick response. From a not-your-field kinda perspective, do you think that an opposite decision on New London + Landsburgian takings doctrine would mean that there could be no government regulation at all? The nutty takings doctrine says AFAICT that when you regulate it's a taking, and you have to compensate the po' folks who've lost the right to send smoke into the air; if Kelo had gone the whole way the other way, it would've said government can't even take with compensation--put them together and do you have Libertopia?
And my sense in part--now I guess this is philosophical rather than legal (and not my field)--is that the two dimensions are separable. You could have a restrictive view about when the government is allowed to take stuff and a narrow view about what takings are (by which I mean, a view on which regulation doesn't count as taking).
Posted by Matt Weiner | Link to this comment | 06-27-05 2:00 PM
"Landsburgian" is always an insult, BTW.
Posted by Matt Weiner | Link to this comment | 06-27-05 2:00 PM
The line of argument that the government should be able to take land, but not be able to then give (or sell) it to another private party, is not particularly persuasive. After all, New London could take your land, and then lease it to Wal-Mart. End result: New London owns the land, Wal-Mart runs the store. The varieties of leases that can be written by clever lawyers means that the "keep title in public hands" rule doesn't do much, substantively.
To mean anything, and to reach the opposite result, the Court would have had to have delved into what "public use" really means. And that can only be bad for people who think "public use" is the same as something that the government decides benefits the public.
Posted by unf | Link to this comment | 06-27-05 2:04 PM
Ok, "fair market value" is a weasel word. "Market value" is what the seller is willing to sell for. "Fair market value" is what a seller gets after an negotiation between the government and the end-user. Sellers are cut out of the loop. "Fair market value" is an imaginary amount calculated as if the actual buyer didn't exist.
Freemarketers who think that "charging what the market will bear" is perfectly fine when you're selling necessities to poor people often change their mind when a small property-owner tries to charge a big developer what the market will bear.
When eminent domain is used for public purposes such as roads I think that it's legit. What's been happening is that private purposes have been declared public purposes.
"Fair market value" is seldom enough to let the seller make good, unless I have been misinformed. Not only does the seller not get the legitimate profits they should expect when the property becomes valuable, but don't even get full replacement value of what's been taken. They get what they would have had to have sold for if they had decided to sell (which they didn't); not the amount it would take to start up obver again somewhere else with a comparable property.
This kind of abuse of eminent domain seem actually to fit in with the ultimate goal of abolishing ED -- just abuse it until people are mad, and then get rid of it.
Posted by John Emerson | Link to this comment | 06-27-05 2:04 PM
[T]he Court would have had to have delved into what "public use" really means. And that can only be bad for people who think "public use" is the same as something that the government decides benefits the public.
Are there any of those around? I remember being rather pleased when the Court threw out Colorado's anti-gay amendment on the grounds that it served no mumble mumble [compelling interest?]. If there were a ruling that these boondoggles were not enough of a public use to justify ED, that wouldn't break my heart.
I mean, I don't know exactly how it would play out, but it doesn't seem obvious that the 'public use' clause needs to be made a dead letter in order to make it possible to build roads and parks.
Posted by Matt Weiner | Link to this comment | 06-27-05 2:13 PM
You could have a restrictive view about when the government is allowed to take stuff and a narrow view about what takings are (by which I mean, a view on which regulation doesn't count as taking).
My abstract view is that I agree with you both that this separation is possible and that it is desirable -- regulation isn't taking, but taking should be limited to the classic roads&parks and other direct governmental uses, not including leasing to a private user. My ignorantly paranoid/legal realist fear, that drives my belief that Kelo wasn't so bad, is that any decision that strengthened the Takings Clause would be used as a tool to push us down the slippery slope to libertarian dystopia, a slope that we're already pretty far down in this regard.
(And I cannot politically punish people at will, except in my typo-driven delusions of grandeur.)
Posted by LizardBreath | Link to this comment | 06-27-05 2:26 PM
After all, New London could take your land, and then lease it to Wal-Mart. End result: New London owns the land, Wal-Mart runs the store. The varieties of leases that can be written by clever lawyers means that the "keep title in public hands" rule doesn't do much, substantively.
But under a lease, wouldn't the voters retain some control over the public (use) property (ability to revoke the lease, for example)? Of course I suppose you could write a lease that limits the public's control over the property, but then the problem would be with the lease, not eminent domain, right?
On the plus side, this ruling means New London could potentially take land from Wal-Mart and give it to someone like Costco, right?
Posted by eb | Link to this comment | 06-27-05 2:30 PM
This is a historical question and it could be wrong, but my guess is that eminent domain is never used to take land from anyone influential. There might occasionally be an enormous struggle between two big players, butmy bet is that by and large the deep pockets are safe from this.
I also can imagine the possibility (like a thought experiment) that a big developer might take someone's land by eminent domain, and then licenses someone else to run a different business of exactly the same type on the same parcel of land. So one restauranteur is driven out of business (with compensation) by the state, the state donates his land to someone else, who licenses a third person to do exactly the same thing that the first person had been doing, except that now the business is much more profitable since the area has been developed. Seemingly, part of the value of his original property (the possibility of an increase in value, the speculative part of ownership) was confiscated and given to someone else.
Posted by John Emerson | Link to this comment | 06-27-05 3:14 PM
My real beef IS with what eminent domain can be used for. I think it should be defined narrowly. I've been watching Kelo with a fair bit of interest since my affluent community (household income, $80K; avg house price, $400K+) decided a couple of years ago that it might be worth pushing out a neighborhood of moderate-income homeowners (house prices: $100-150K) to make room for a parking garage, new office buildings, and a so-called retail promenade.
This is a private development project - no public involvement (yet). So eminent domain hasn't been deployed, but since the developer is linked to a large local employer, it's certainly being mentioned. The question is where people are supposed to go - of the 60+ homeowners, many were elderly who got scared and sold early, for $150-200K. Not much left in our area that's affordable at that price.
What gets me is the risk that this ruling will delude a whole generation of little municipal governments into thinking they DO know what they're doing in (sub)urban planning, and they'll all go nuts with "revitalization" efforts.
If there is anything the last 40 years should have taught us, it's humility. Those giant public housing towers? Yeah, disaster. Now the buzzwords are scattered-site housing and mixed-income neighborhoods. Not really sure those are the solution either, but it does show that we're still fumbling around trying to figure out what makes a neighborhood "viable".
The problem (and I'm sympathetic to it) is that nobody really knows where the tipping point is. I commute past a destroyed inner-city neighborhood every day. Do I want my inner-ring suburb to turn into that neighborhood? No way. Do I think my well-intentioned, $4100-a-year local municipal officials have a snowball's chance of ensuring that it won't? Not really.
Between gentrification and ghetto, I'd pick gentrification. But I'd rather not. I'd rather just keep living in my nice, clean, two-blocks from groceries, mail, bank, drugstore, movies, etc. house. If I'm going to be forced to give all this up and move away, I want it to be for some REAL public good - - a train station, a park, etc. - - not a Starbucks.
So I wish the Gang of Nine had pushed back a little more, myself.
Posted by A.W. | Link to this comment | 06-27-05 3:18 PM
Yeah, I've wondered whether--if the decision had gone the other way--it would only have served as fuel for the regulatory takings crowd.
However, I basically believe that this shouldn't be considered public use. I am not terribly concerned about the private corporation bit. I mean, a charter school might be a private corporation. I am concerned by the fact that a higher tax base is being defined as a a public use. Schools, roads, hospitals, and parks are okay, but not greater tax revenue.
Posted by Abby | Link to this comment | 06-27-05 3:23 PM
15 -- I'm pretty sure that in time of war imminent domain has been used to convert industrial facilities from producers of consumer goods to producers of military goods. The industrial facilities selected were generally owned by powerful individuals. But they were handsomely rewarded.
I had a professor who liked to compare the military draft with imminent domain, using the above example as a jumping point. But he was, in general, an ass.
I don't know much about this case. I am going to argue that the regulation-as-takings argument is not conceptually stupid, though. It is kind of hard to address. If property ownership is a bundle of rights (it is), regulating use would be like taking only some of those rights, not all of them. Sure, you can covert the property, but you stand to lose a lot of money. You have lost the right to use the land in the way you wanted to use it. It is different in degree, not in kind, from taking all of the ownership rights.
As is, shareholders actually fear losing their shirts through some of these regulations. Those fears are well founded (or were back when we had a government willing to regulate). It is not suprrising that coprorations -- since they are not compensated -- would fight tooth and nail against environmental regulations.
The gut response is usually in favor of regulation, without compensation, but it's not that easy to marshal a cogent argument against the crazy Epstein regulation-is-taking school.
Posted by text | Link to this comment | 06-27-05 3:38 PM
I actually think that some regulations ought to be treated as takings but not all.
eminent NOT = imminent (sorry for the nitpick, text)
Posted by Abby | Link to this comment | 06-27-05 3:45 PM
as an actual licensed lawyer, I should be rather ashamed of that. But I am not. I have fucked enough oboes.
What if the taking were about to happen, like, in the next five minutes?
Posted by text | Link to this comment | 06-27-05 3:50 PM
Text--I'm inclined to put a lot of weight on the reassignment thing. Regulation means you don't have the right to use the land the way you want it any more. But isn't that what happens every single time a new law is passed? When marijuana is outlawed I no longer have the right to grow marijuana on my property--is that a taking? I guess Epstein would say so.
I don't think it's that hard to marshal an argument against regulation-is-taking. If you think that owning property means having the right to do anything whatsoever you want with it, then regulation is taking. But there's no reason to think that. Property rights are part of a general social contract, and part of our contract says that the government has the right to pass regulations that can in some cases forbid you from doing stuff with your property that you could do before. This is very different from taking. In taking one person loses all their rights over some property. In regulation everyone surrenders the same rights over all their property to the general sovereign (to use Hobbesian terms).
It's not surprising that corporations fight regulation tooth and nail but they also fight tooth and nail for tax breaks and lots of things they don't deserve. If ExxonMobil wants to destroy our climate I don't see any reason why we should have to pay them before we can make them stop.
We don't want effective takings of course--regulations that just so happen to destroy the value of one person's properties--but I don't think that's any reason to describe all regulation as taking.
(Incidentally, I may be grumpier than usual about this because of Epstein. I've taught one piece by Epstein--on at-will employment--which was obviously written by someone who's never held an at-will job. The most insulting part was when he argued that, since at-will contracts are so widespread, they must be good for the employee, and went through a lot of foofaraw trying to figure out what this benefit was. Oddly enough, these arguments don't seem to have led him to give up his tenured professorship.
Though now that I think of this, in an indirect way I got a girlfriend out of the deal, so I shouldn't feel so vindictive.)
Posted by Matt Weiner | Link to this comment | 06-27-05 3:58 PM
I'm pretty sure that in time of war imminent domain has been used to convert industrial facilities from producers of consumer goods to producers of military goods. The industrial facilities selected were generally owned by powerful individuals. But they were handsomely rewarded.
Actually, the only version I know of this story is of the U.S. taking assets belonging to wealthy individuals and compensating them "much less than the value of the properties and would have been inadequate to constitute just compensation if the patents belonged to non-enemy owners and were taken for public use under the power of eminent domain." This is U.S. v. Chemical Foundation. So there you had the gov't taking wealthy persons' property and paying them much less than it was worth (if it paid them at all).
Of course, those wealthy people were Germans. And bad America-haters every one.
Posted by slolernr | Link to this comment | 06-27-05 3:59 PM
The government ran the railroads towards the end of World War I, but then gave control back to the various companies. I don't know about compensation, though.
Posted by eb | Link to this comment | 06-27-05 4:06 PM
I think outlawing marijuana would actually be one of the stronger examples of a regulation-as-taking. By outlawing the drug the state has removed all worth from the product in legal transactions. Then again, it has only increased the value of the drug in overall transactions.
As far as the submitting-to-the-sovereign argument, it seems to me as though that could be used to justify actual property confiscation. Via Hobbes, we are all submitting to regulation, and that legitimates it, but how is that different from all of us submitting to the chance that our house might be taken away? I don't think it's different at all, except that we wrote this takings clause into the constitution, and we want to enforce it in some instances, and in some instances not. Sure, we all submit to regulations, but certain of them affect only a small number of people in a negative way. If a majority benefits to the detriment of a minority, there is no reason to think that the majority would restrain itself. The takings clause could be seen as a way to compensate those who a democratic majority would not otherwise compensate. I don't see how a regulation that bans a democractic minority from enjoying property in the way it was doing previously is functionally different from actual property confiscation, from a small number of people.
I want to see a distinction, though.
Presumably, if the land use is truly harming people -- such as through pollution -- there ought to be a way to address that through the tort system. But that is a whole other mess.
Posted by text | Link to this comment | 06-27-05 4:14 PM
one way around it would be to say: regardless of conceptual problems, when the takings clause was written, the purpose was to compensate only actual property confiscation, not regulation. Then you would cite policy reasons for such. If that distinction has remained intact, and there is no pressing reason to abandon it, that should be enough to keep the distinction going, even if it is a conceptually difficult one.
Posted by text | Link to this comment | 06-27-05 4:20 PM
This may not be the distinction you're looking for (this is all way out of my field anyway), but there is a difference between saying that no one can lawfully sell marijuana and saying that only the government can sell marijuana; that is, there is a difference between regulation and nationalization (which would be confiscation).
Is requiring a prescription for the purchase, and a license for the sale, of certain drugs a kind of taking?
Posted by eb | Link to this comment | 06-27-05 4:22 PM
I was thinking of someone who doesn't have any marijuana, but whose land is perhaps suited to growing marijuana--so they might have to rent it to a corn farmer for less profit than they could've got from a marijuana farmer. ISTM that Epstein would have to say that that person is harmed by the ban on marijuana, since they can't use their land for everything they'd like.
As for the Hobbesian thing--one of the things I'm thinking of here is that there are no inherent property rights (this is more radical than I want, but close). Property is socially constituted. We have, wisely, constituted property in such a way that the government can't just take your house and give it to someone else, and can't take your house even for a public purpose without just compensation. But--I mean, I just don't see the similarity between barring someone from enjoying their property as they had been and actual confiscation. It's like the difference between passing indecent exposure laws--which impact nudists, who can't go around the way they had been--and slavery--which means that the person has no liberty at all.
If we regulate pollution, that'll disproportionately affect people who own polluting factories, who won't be able to use those factories the way they had been. But it's not taking the factories away and giving them to someone else. It's saying "This noxious thing can't be done any more."
And I'm not sanguine about the tort system. Suppose there isn't currently a doctrine that pollution constitutes a tort. Either the judges find new grounds to sue polluters, which is much more arbitrary than democratic regulation. Or they just say, sorry, this wasn't in the system, there's nothing to be done about it. So it seems to me that using the tort system would mean that we could never pass any new regulation except by judicial fiat, and that would be bad.
Posted by Matt Weiner | Link to this comment | 06-27-05 4:26 PM
25: That sounds congenial (27 was written after 24). The legal grounds for this aren't my department, but that sounds like a compelling enough legal argument. And for the conceptual distinction, I could just say: that's the social contract we have, and it's a good one.
26: I like the distinction--it seems to me that nationalizing a legal industry would require compensating the owners, and should.
Posted by Matt Weiner | Link to this comment | 06-27-05 4:30 PM
Um, what Weiner said. Only less articulately. But 27 is exactly what I think is wrong with the libertarian theory of the takings clause.
Posted by LizardBreath | Link to this comment | 06-27-05 4:34 PM
Property is a social construct. I am totally with you on that. Without government enforcing property rights, there are no property rights. Same for private markets -- at least ones that involve more than bartering.
So once we say that private property is itself a construct of government -- of people cooperating together through whatever means -- then it seems ok that government should regulate the property. That's why the libertarian "taxes are immoral" argument is so crazy. You wouldn't have private markets capable of creating the type of wealth we enjoy without some sort of taxation. But I don't see how that argument stops at regulation. It seems like, if we can submit to regulation, we can submit to outright takings, and the only reason we don't submit to outright takings is that we have this takings clause, and we have interpreted it to mean that confiscation must be compensated, regulation not.
Property ownership is just of bundle of rights one can exercise over any given thing. You can give all of those rights away to people, or you can parcel them out in any number of ways. Ownership is divisible. You can chop it up. Taking all of the rights is different in degree from taking some of them, but it isn't different in kind.
Saying "this noxious thing can't be done anymore" is like saying -- that right you had to do that noxious thing -- we're taking it away.
Ideally, you shouldn't have the right to do noxious things -- you should be forced to pay for the wrongs through the tort system. But like you, I am not sanguine about the tort system either. If it worked, and pollutive harms were adequately redressed, then I would be more inclined to accept that regulation required compensation.
I was going to say -- you should also be punished criminally for doing noxious things. But that puts us back in need of a regulatory law. Maybe the distinction that's bothering me is between regulating actions because they cause actual harm to others, and regulating actions for some other reason. Maybe I am thinking the former ought not be compensated, and the latter ought to be. Can't say why yet.
Posted by text | Link to this comment | 06-27-05 4:41 PM
30 to 27. But my compromise in 25 still stands.
Posted by text | Link to this comment | 06-27-05 4:45 PM
Saying "this noxious thing can't be done anymore" is like saying -- that right you had to do that noxious thing -- we're taking it away.
But, quite often, our understanding of what is noxious develops through a historical process. Sometimes we say "this noxious thing can't be done anymore" but sometimes we say "this thing, that we didn't know was noxious, turns out to be noxious, so it can't be done anymore. Had we known that is was noxious in the first place, we would have regulated or prohibited it from the start."
Is that a distinction without a difference?
Posted by eb | Link to this comment | 06-27-05 4:55 PM
Is that a distinction without a difference?
Don't think so. SCOTUS justifies overruling itself in this fashion. As in Brown. As in Muller, I think.
Posted by slolernr | Link to this comment | 06-27-05 4:58 PM
I would think in most cases that we decide to ban noxious things, it is because we have just found out they are noxious, and didn't realize it before.
I am all in favor of banning noxious things through regulation or whatever means. When doing so requires that certain individuals stop using property in a way that they were previously allowed to do, I think the regulation deprives them of an ownership right. I am fine doing it, I just think it's not conceptually different from a taking.
You say: they would never have had that right had we known the use was noxious. That's true, but you can't reach back and say that therefore they never had the right.
Posted by text | Link to this comment | 06-27-05 5:01 PM
re: 29 ( 27 is exactly what I think is wrong with the libertarian theory of the takings clause )
I think you have misconceived the libraterian view of the Takings Clause (as well as having vastly overestimated the extent to which that view has been adopted by any court). The pollution example is exactly not the right one. The law of nuisance (both public or private) makes clear that you can be enjoined from polluting your neighbors' property and made to pay compensation for any damage you cause. Thus, regulations preventing pollution have, in general, nothing to do with the Taking Clause because they relate to actions which the property owner had no legal right to do in the first place. The problem is where regulation prevents completely proper and economically valuable activities--for example, building a home--for the benefit of the public in general--for example, passing a law limiting development to make a coastal area more attractive, and not allowing a variance to existing property owners. Here, most of the value from the lawful use of the property gets sucked out of it for the public in general, with no compensation to the individuals who lost the value of their property.
Posted by Anonymous | Link to this comment | 06-27-05 5:02 PM
sorry, 35 was me (computers--too complicated)
Posted by Idealist | Link to this comment | 06-27-05 5:05 PM
When doing so requires that certain individuals stop using property in a way that they were previously allowed to do, I think the regulation deprives them of an ownership right. I am fine doing it, I just think it's not conceptually different from a taking.
This is the argument that was used against economic regulation in the New Deal:
Thus George Wharton Pepper, in U.S. v. Butler (against the AAA). This doesn't mean your argument is wrong, text, but it does mean it could have some pretty far-reaching implications.
Posted by Anonymous | Link to this comment | 06-27-05 5:07 PM
Yeah, 37 was me.
Posted by slolernr | Link to this comment | 06-27-05 5:07 PM
would you concede that there are some wrongs that ought to be addressed through nuisance, but aren't for a variety of reasons -- costs spread to far, inability to define a class subset -- such that a regulatory taking (without compensation) is necessary to redress the wrongs.
These would be your typical environmental wrongs.
Posted by text | Link to this comment | 06-27-05 5:09 PM
if Kelo had gone the whole way the other way, it would've said government can't even take with compensation
This was not a possible outcomte of Kelo, since it would render the Takings clause dead letter.
Weiner - It doesn't seem like you're dealing with some of the trickier types of regulations which might be ( or have been) seen as takings. Three general examples (I'll save specifics): 1) Regulations requiring landowners to put certain physical objects permanently (as long the regulation remains in effect) on their property. 2) Regulations which require that you let other people make a particular use of your property. 3) Regulations declaring particular buildings to be landmarks which cannot be altered.
Posted by washerdreyer | Link to this comment | 06-27-05 5:09 PM
39 to the idealist
Posted by text | Link to this comment | 06-27-05 5:10 PM
re: 39
If a regulation addresses activities that are nuisances, the regulation is not a regulatory taking, because it does not take a right which the property holder had.
Posted by Idealist | Link to this comment | 06-27-05 5:13 PM
slo -- that's really interesting. I don't like being on the side of the anti-newdealers.
I guess I'd say -- in situations where a new regulation imposes costs on property owners that are not dispursed, and we think that is ok, it is because we intuit that there was some sort of nuisance or tort wrong that has not been redressed. The regulation is necessary to overcome the wrong. Because the property owner caused the harm that we are now redressing, we don't think he or she need be compensated.
Posted by text | Link to this comment | 06-27-05 5:14 PM
idealist -- tthe property owner had the right because although the activity caused a nuisance, in the plain language meaning of that term, it was not redressable via the nuisance tort, for a variety of reasons. But for the regulation, the property owner could commit the wrong without paying for the harms.
Posted by text | Link to this comment | 06-27-05 5:16 PM
40--no, I wasn't really; I'm trying to set up a principle--there is some line to be drawn. Where it gets drawn, I don't know.
My original target was really Steven Landsburg, Man of Straw. He really seems to think Tahoe should've been decided so as to mandate compensating everyone for everything.
Posted by Matt Weiner | Link to this comment | 06-27-05 5:16 PM
To be clear, I realize that you can come up with plenty of examples which are not so clear cut as the regulating pollution example. I am not completely in the Epstein you-can-only-regulate-it-if-it's-a-nuisance camp. The problem with current Takings Clause law is that the courts are way over on the other side of the Epstein view.
Posted by Idealist | Link to this comment | 06-27-05 5:17 PM
I should know this, studying history and all, but I don't: did anyone have to make a legal justification for not compensating slaveowners after the Civil War, or was the matter simply not addressed?
I think most emancipations in other countries did involve compensation.
Posted by eb | Link to this comment | 06-27-05 5:18 PM
re: 44. You have stated the justification for regulation, and I think it is almost universally recognized as a good one. The problem begins when the activity is not a nuisance.
Posted by Idealist | Link to this comment | 06-27-05 5:23 PM
and I'm afraid I'm with you when the activity isn't any sort of nuisance -- legally redressable or not. Depriving a usage right isn't conceptually different from depriving any other ownership right, or all of them -- it just isn't as much of a deprivation.
Posted by text | Link to this comment | 06-27-05 5:27 PM
My original target was really Steven Landsburg...
The only time I can recall agreeing with anything Landsburg wrote, or at least the main point of the thing he had written, was when he argued for the controversial proposition that Dylan Thomas was a good poet.
One reason to think there would have been better results from the opposite decision in Kelo is that if muncipalities didn't have eminent domain taking ----> transfer to private person/ corporation on their menu of options, employers couldn't threaten to withdraw from the community unless e.d. is used. Some of the most egregious past uses of e.d. have been of this form.
Posted by washerdreyer | Link to this comment | 06-27-05 5:28 PM
my only reprive is that there are lots of situations in which uncompensated regulation is required to redress nuisance harms that tort law does not redress.
Posted by text | Link to this comment | 06-27-05 5:29 PM
and here I include economic regulations. Any regulation that redresses negative externalities that the property owner would not otherwise pay for.
Posted by text | Link to this comment | 06-27-05 5:31 PM
Some of the most egregious past uses of e.d. have been of this form.
I now realize that this might sound patronizing, since this thread has switched to containing people who have far more legal training than my one year to date.
Posted by washerdreyer | Link to this comment | 06-27-05 5:32 PM
although I've had a few more years of training, I will admit that almost all of my eminent domain opinions I have formed during the course of this thread -- I think I read half of an article by Epstein on the subject my 1L year, and that is it. For some reason, didn't cover it much in Con Law I. So patronize away.
Posted by text | Link to this comment | 06-27-05 5:38 PM
re: 53
I now realize that this might sound patronizing, since this thread has switched to containing people who have far more legal training than my one year to date.
On the contrary, you are probably much better equipped to discuss constitutional law issues than any practicing lawyers, unless they are part of the rare breed that does constitutional law for a living, and thus you should do so. Now, I'll take you on if you want to have a heated debate about the current interpretation of the New York Civil Practice Rules in New York County . . . but really, who (except maybe LizardBreath) would want to argue about that?
Posted by Idealist | Link to this comment | 06-27-05 5:38 PM
The OED endorses both geometrical and rhetorical meanings for both hyperbolic and hyperbolical. Despite the fact that context essentally always determines which meaning of either word is intended, I'd really like there to be a convention where one is only used one way and one is only used the other. I don't care what this convention is.
Posted by washerdreyer | Link to this comment | 06-27-05 5:41 PM
For the record, I think that the issue of whether ED should be used to transfer property from one private owner to another, is still a valid one. I have no sympathy at all with the broad extensions of the Takings principle. What I see being done with baseball stadiums, etc., seems to be an egregious expansion of the legitimate practice of ED. I actually have no opinion at all about any of the legal questions, but I think that it would be better to make abuses illegal rather than just say "if government errs, vote them out?" or "It's up to Congress", since bribery is so rife in government.
Posted by John Emerson | Link to this comment | 06-27-05 6:52 PM
What about Midkiff? The vast majority of all private land in Hawaii was held by a small handful of large landowners, which entered into long-term ground leases for housing development. After a while, people realized that those long terms weren't all that long and that there was going to be a very painful day of reckoning when they started to expire. Instead, the state passed a law allowing it to acquire the fee interests via eminent domain and sell them to the leasehold homeowners. That statute was upheld by the Supremes in Midkiff.
Most (all?) of the anti-Kelo commentary would suggest that Midkiff was wrongly decided, but I'm not ready to concede that it would be a good thing for land ownership in this state to be even more feudal than it still is. Eminent domain has also been used to create privately-held railroad and utility corridors, which is at least arguably a legitimate public purpose. So I'm not at all convinced that a bright-line, no-transfers-to-private-parties rule would work. That leaves us to decide whether we'd rather have local legislatures or the Supreme Court in the business of deciding what uses by private parties count as "public." Between the history of the Lochner era and the current takings mess, I'm not sure that the Court is the right answer. OTOH, when I look at projects like New London's, stadium deals, etc., I don't trust local legislatures much, either.
Posted by DaveL | Link to this comment | 06-27-05 7:52 PM
What rubbish. There is no meaning whatsoever to "fair market value" except what someone will willingly exchange, and eminent domain is only used when the owner is NOT willing to sell at the state's price.
Posted by Gene Callahan | Link to this comment | 07- 2-05 2:07 PM
It's not always at "Fair Market" value if the owners of the land it was taken from are pissed off about, which it appears that some still are from when George W. Bush owned the Texas Rangers and took land by eminent domain for a parking lot around his new stadium. Details at: http://www.menrohm.com/2005/06/george-bush-and-eminent-domain.html
Posted by Peter Kone | Link to this comment | 07- 2-05 7:37 PM
My sense is that Jim Henley would be just as mad if the government forcibly purchased someone's property to run its own amusement park as if it forcibly purchased someone's property to sell to an amusement park operator.
But the point is that running an amusement park is inherently not a "public use," which is why the government shouldn't get involved in it. I think that the general point is that government should have a few limited, well-defined functions, and eminent domain should be restircted to instancs where taking the property serves a legitimate government function. For the government to take over a function (e.g. running an amusement park) for which is was never intended does not redefine public use and thus make the eminent domain justified.
Posted by Glaivester | Link to this comment | 07- 3-05 10:30 AM