In response to our earlier colloquy over Save Toby, Lior Strahilevitz has a new post about property desctruction and eminent domain:

Suppose that a wealthy nihilist owns a Frank Lloyd Wright home and announces a completely credible intention to burn it down. Should the state be able to condemn the property and, upon paying the nihilist fair market value, transfer it to the Frank Lloyd Wright Trust, a private entity that announces (again, completely crediby) an intention to turn it into a museum?

The holding of Kelo (and earlier cases like Berman v. Parker) suggest an affirmative answer, and I believe that the state should be able to use the eminent domain authority to condemn the home from the nihilist and transfer it to the preservationist. There is a strong economic argument for liability rule protection in this hypothetical, as opposed to property rule protection. There are probably enough people (neighbors and non-neighbors) who would derive substantial "existence value" from knowing that the home survives and value the option of being able to drive by it or take a tour to outbid the nihilist in a world of no transaction costs. But high transaction costs will probably prevent those people from getting together and outbidding the nihilist for the home, even though they are the highest value users. So unless there are a large number of nihilists out there who derive "non-existence value" from the home, it would seem that using the government's eminent domain authority to preserve the home is welfare maximizing.

Now, I think Will is still going to object, which might make for an interesting discussion. Where will he go with his objection?

I returned to the DMV today and successfully registered my car, armed with a letter from the law school. They let me skip to the front of the line, and the whole thing took less than 20 minutes.

Some time ago I argued that a section of the Fair Housing Act was clearly banned under 44 Liquormart. Dave Fagundes now attempts to save the FHA, by arguing that there are rationales that justify banning the speech but leaving the underlying discrimination legal.

I will blog more about this after I re-read Liquormart, but my initial inclination is doubt. (And I will add that there is another potential tension-- to the degree that the some exceptions to the FHA are actually constitutionally compelled by intimate-association rights, that might provide added suspicion of the FHA's decision to ban all the speech and only some of the conduct.)

Angus Dwyer ruminates about whether the Constitution requires the state to grant a right to divorce, or even to no-fault divorce. I presume that he is not actually asking about the text of the document but about likely governmental glosses on it. If so, it seems likely to me that the Court would say that the fundamental right to marry entails the fundamental right to sever one's marriage at least some of the time, just as the fundamental right to bear and beget children has been held to entail the fundamental right to abort and not-bear them, I presume the Court would make a similar negative inference.

The exact contours of such a Court-created divorce right, I cannot anticipate. Maybe an undue burden standard?

UPDATE: A Friend of Crescat wonders whether the same logic would forbid the state from eliminating the institution of civil mariage and replacing it with civil unions. One would think not-- the right is to marry, not to have the state bless the marriage. Then again, given Griffin v. Prince Edward County, I hesitate to make predictions on this score.