Lior Strahilevitz criticizes my friend Steve Sachs's note on "Saving Toby". Steve argues that we ought to prevent people from exortionately threatening to destroy their own property for the same reason that we prevent people from extortionately threatening to reveal secrets (blackmail).

As I mentioned before, I am inclined to disagree with Steve, although for different reasons. (I mistrust the criminal justice system's ability to sort out the "extortionate" destruction from the expressive one; I think blackmail laws are justified because they reduce the incentive to illegally or wrongfully acquire secrets to reveal, and the threat that people will illegally steal rabbits in order to destroy them is much less; and I am not so sure that broad blackmail laws are a good idea.)

That said, I don't quite see why Professor Strahilevitz thinks that the Kelo dissenters would have to be skeptical of the state's ability to condemn a Rembrandt to keep the owner from destroying it. So long as the government retained ownership of the Rembrandt, it would not offend even Justice Thomas's dissent. Only if the government wanted to start taking paintings from private collectors and giving them to other, more favored, collectors would a public use violation occur. And rightly so, I would think.

UPDATE: Steve has some further thoughts.

Via Ben Barros I see that a state court in New Jersey has decided to apply New Jersey's State Constitutional guarantee of free speech to a homeowner's association. To the federally-minded observer, this may seem rather odd, since with one or two uncomfortable exceptions, we tend to think that the federal first amendment only affects the government. But states have been holding private shopping malls subject to state free speech guarantees for some time (and somehow evading the federal takings clause in the process). So this is a pretty obvious next step.

So I find the politics more intriguing than the doctrine. Apparently New Jersey's ACLU supports the decision, since presumably the liberty to contract with one's neighbors is of less importance than the liberty to break said contracts in order to put up political signs.

Unnamed "homeowners groups" are also named as supporting the court's ruling. I wonder how this works out in the long run, though. Assume that some homeowners are basically freewheeling and want few rules-- paint your house any color, leave your lawn unmowed, have a garage that faces the street, etc. Others are basically conformist and want to eliminate political signs, demand the lawns be mowed, keep all houses from being puce, and forbid garages that face the street. In a world where homeowner's associations aren't bound by these state constitutional constraints, then all of the conformists cluster together and live in happy communities with mowed lawns, and all the freewheelers live in the rest of town. Presumably the conformists then don't try to rally for more restrictive zoning laws, since they've already privately zoned their neighborhoods the way they want them.

But now suppose instead that the New Jersey ruling stands and private contracts that forbid political signs and puce houses are unconstitutional. The incentive for the conformists to cluster together evaporates-- contracting by neighborhood is mostly useless (except for signalling purposes) if the contracts are unconstitutional. That means that the conformists move back into the freewheeling neighborhoods, and now have an incentive to work to pass local conformist laws. Since the state free speech clause won't reach every conformist zoning ordinance, it's possible that this means less freedom for the free-wheelers and less conformity for the conformers, making everybody worse off.

UPDATE: I flag, but do not endorse, the possibility that homeowner's associations could successfully raise a federal constitutional challenge to the New Jersey constitutional rule under Boy Scouts v. Dale, which said that to some extent the constitutional right to create a group of people who express a message and adhere to a party line entails a constitutional right to punish those who deviate from the line, the laws of New Jersey notwithstanding.

I have two more PrawfsBlawg posts up, one suggesting that the doctrine of adverse possession might be unconstitutional, and the other suggesting that the Fair Housing Act almost certainly is.

The New York Times notes what is half of the topic for my paper in progress for Heather Gerken's class. Despite having lost in the Supreme Court and not achieved a remand, Susette Kelo and the other New London homeowners are still there.

My own off-the-cuff guess is that the NLDC will keep its head down for another year or two, until the Connecticut legislature is finally distracted enough to move on to other things, at which point the NLDC will finally take the properties.

What better way is there to procrastinate writing one's paper on water than to blog about water?

Via Alex Tabarrok I see this paper exploring the relationship between water privatization and child mortality. The bottom line is that privatizing water in Argentina appears to keep kids from getting sick, and the poor are helped the most. This is roughly consonant with what I learned about privatization elsewhere in South America and Africa. The authors seem a little unduly rosy about this to me, but it's still good news.

Meanwhile, Illinois, Indiana, Michigan, Wisconsin, Minnesota, New York, Ohio, and Pennsylvania are all working out the Great Lakes Basin Water Resources Compact which the governors are scheduled to sign on December 13. Thanks to Article 1, Section 10 of the U.S. Constitution, this compact will be no good until it's ratified by Congress. (A copy of the compact is here.

The fights about the lakes largely seem to revolve around "who owns" them. Under normal principles of riparian ownership, the great lakes states (or their residents) seem to win, although under the doctrine of prior appropriation things are less clear, since large sections of the lake are not yet appropriated. If we believe in Coasean bargaining we might wonder why we don't just let the state bargain it out, but states hate selling water for political reasons I don't entirely grasp.

It's something like Ross Perot's fear that all of our jobs would go south to Mexico and never come back. I think there's a vision that once Arizona gets access to Lake Michigan, they'll just drink it all up.

As I write this the House is voting on the "Private Property Rights Bill" although I am confused at this point about what version of the legislation is at issue. As much as I like this legislative stuff, other duties have been more pressing in the psat few days. In general these popular responses to Supreme Court rulings have tended to fail in the modern day. Jeff Sutton predicted to the Court that every state would enact a RFRA if they struck down part of the federal RFRA in Boerne v. Flores. They did, but state RFRAs don't even amount to half that. Still, I am pleased by the dialog.

Last month, when Nicole Garnett and Tom Merrill came to Yale Law School to debate eminent-domain-reform-legislation, I liveblogged their discussion. Merrill described the two different ways of thinking about eminent domain-- as a utilitarian problem of holdouts and as an individual rights problem. While he suggested that he was not willing to quarrel with the individual-rights view, he was still skeptical about imposing subject-matter limitations on the use of eminent domain.

Ben Barros reports from the GELPI conference that Merrill's skepticism appears to have given way. Barros reports that "(Merrill) said he would agree with a ban on eminent domain where the sole purpose is to raise tax revenue, and would agree to a ban on the economic development takings of homes."

Good!

As PG points out, H.R. 3058 has passed, which forbids the use of federal funds "to enforce the judgment" in Kelo. What exactly this means is unclear to me. Does the fact that it refers to the "judgment" rather than the "opinion" mean that federal funds can be used for any economic development project so long as it isn't the one that was at issue in New London?

The Washington State Supreme Court today upheld the statutory authority of a taking for the Seattle Monorail. There was also a fierce dissent:

In the wake of Kelo, legal scholars and citizens exulted that Washingtonians were insulated from such abuses because the plain language of the Washington Constitution, as previously enforced by this court, afforded broader protection against eminent domain abuse than its federal counterpart. See Const. art. I, sec. 16. Unfortunately, the majority of this court is less enlightened than the citizenry or less inclined to restrain public agencies in their taking of private property. I side with the citizens and our Washington Constitution. I therefore dissent.

Ben Barros has a very intriguing investigation into the conference notes on Berman and Midkiff. This is not only interesting as evidence in the debate about how much of a foregone conclusion Kelo really was, but also because it brings up interesting questions about the degrees to which these conference notes should matter-- to us, or to future Justices who contemplate similar questions. For more on this, see Adrian Vermeule, "Judicial History," 108 Yale Law Journal 1311 (1999).

A Friend of Crescat points out this amusing story in the New York Times about a Connecticut man who was denied the zoning permits to build an observatory in his house, and so substituted for it by building a stonehenge.

The land use angle is of course fascinating. Apparently Dr. Rothberg's defense of Stonehenge (for which he did not seek a permit) was that it was not a "structure" and therefore not within the zoning board's jurisdiction. The board appears to have convinced him to concede that it is a structure in return for their granting him an after-the-fact permit.

Given Rothberg's emphasis on making sure the thing lasts for a hundred centuries (it has been tested against hurricanes, earthquakes, and speeding dump trucks) this may be a mistake. I am not sure what limitations there are on the board's revoking the permit later, or changing the rules so that his structure no longer conforms without giving him a grandfather clause. From the point of view of durability, he might have done better to press his not-a-structure argument.

Then again, surviving the land use process is almost always about bargaining, not fighting City Hall.

Norwood, the first Institute for Justice property-rights case to appear in a state Supreme Court after Kelo, was argued today. Is there independent life in the Ohio Constitution? We will see soon.

UPDATE: Not that soon. This hearing turns out to be over a fascinating injunction-bond question, not the fundamental legality of the private taking.

Let me offer a few more words about "muddling through", which I discussed interstitially in my last 50-book-challenge post. While those who prefer to "muddle through" are usually placed in opposition to those who prefer comprehensive plans, there is nothing particularly libertarian about muddling through, and nothing necessarily statist about planning.

Government-centralized planning, which is a subspecies of planning, obviously presupposes a government interested in and somewhat capable of meddling in the lives of its subjects. But invasive governments can also decide to muddle through rather than plan (as many local governments do, especially in the context of land use exactions) and private people and organizations can and do engage in entirely non-coercive sorts of planning. Indeed, the right to run parts of your life without having to answer to anybody else almost directly implies the right to plan those parts of your life, rather than live hand-to-mouth. University campuses, the NAACP, and the Institute for Justice are but three examples of entirely non-governmental organizations that nonetheless engage(d) in quite successful forms of comprehensive planning, in the land-use context and otherwise.

So the question of whether one believes in coercive action against self-regarding others is entirely separate from the question of whether people and institutions-- coercively or not-- ought to have a coherently planned vision of the future.

Hillel Levin continues to investgate legislative reactions to Kelo-- the Supreme Court's expansive decision permitting local governments to use (or delegate) their eminent domain power essentially without federal judicial review. He notes a recent Texas statute that restricts eminent domain abuse while providing an exemption for the much-loved Cowboys' desire to bulldoze homes in the interests of a new stadium:

(I)f the Cowboys get a special dispensation, you have to wonder how much people really care about Kelo.

Part of the problem with the Justice Department's approach to issues of free exercise accommodation is that, viewed in the context of any one particular case, the religious claimant seems, from institutional Government's perspective, to be a crank (or a Trojan Horse hiding cranks to be let loose in the night).

Michael Stokes Paulsen, A RFRA Runs Through It, 56 Mont. L. Rev. 246 (1995)

The New London Development Council has decided to ignore the non-binding moratorium adopted by the Connecticut legislature earlier this summer, and begin eviction proceedings over two of the properties related to the Kelo case, rather than wait around for the legislature to reform the eminent domain laws.

It is unclear as of yet whether the legislature will have the political will to stop the NLDC; I tend to think not if it can get away with it. There was some brief thought about statutorily eliminating the city of New London. I wonder whether the crazies who are going after Justice Souter's house would be interested in the project.

UPDATE: Via the Connecticut Law Blog I see that the notices are not technically "eviction" notices (despite the headline of the linked piece).

UPDATE: And yet.

Whatever one thinks about the proper role of the federal government in providing housing to the poor, I think it is pretty clear that Section 8 housing vouchers are some of the best efforts it has come up with yet. Unlike HOPE VI boondoggles, dubious project-based subsidies, pork expenditures, and much more, Section 8 seems to deliver something like 90-95 cents of benefit for every dollar spent. (Which is darn good for a welfare program).

So, I agree with Alex Tabarrok and Edgar Olsen that if we are interested in giving federal housing money to Katrina victims, expanding the Section 8 program is a great way to do it.

[It might also comfort paternalists like Dan Markel who are terrified that the Katrina victims might spend their money on alcohol or tobacco. Although given the fungibility in even tight budgets, maybe not.]

UPDATE: Matthew Yglesias says "I told you so". It is worth noting the basic influence of political salience here. I suspect that a great many libertarians would like to cut federal welfare programs, but would also like to make sure that the programs we do have are good ones. This means that when it's clear that federal welfare is going to happen no matter what, the good-government libertarians speak out loudly, but when it is time to start cutting, they are likely to take whatever they can get.

Angus wonders whether primogeniture laws are unconstitutional. He says that they are probably fine, but I am skeptical.

Consider Trimble v. Gordon, 430 U.S. 762, striking down an Illinois law that forbade illegitimate children from inheriting from intestate fathers. The Court agreed with Angus that the class was not suspect but nonetheless discerned no legitimate state purpose for the law. I suggest that if the state has no interest in making sure that the illegitimate child does not cut into the other heirs' shares, then it most certainly has no interest in trying to cut out legitimate children in the same way. Q.E.D.

[Incidentally, then-Justice Rehnquist dissented from the decision, accusing the Court of using the equal protection clause "as a cat-o'-nine-tails to be kept in the judicial closet as a threat to legislatures which may, in the view of the judiciary, get out of hand."]

UPDATE: A reader doubts:

Trimble v. Gordon, 430 U.S. 762 (1977), strikes me as related to, but not on all fours with, Angus's hypothetical primogeniture statute.

You note that the law "forbade illegitimate children from inheriting from intestate fathers," but did not mention that it allowed those same illegitimate children to inherit from intestate mothers. The difficulty of proving paternity was forwarded as one of the state's interests in allowing inheritance from intestate mothers, but not fathers. The Court then noted that the link between the state's proferred interest--that of "assuring accuracy and efficiency in the disposition of property at death"--and the statute failed to consider a middle ground approach:

"For at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws. Because it excludes those categories of illegitimate children unnecessarily, § 12 is constitutionally flawed." Trimble, 430 U.S. at 771.

At its core, Trimble rests on the notion that the state statute was, in fact, drawing differences between legitimate and illegitimate children, without a sufficient state interest to sustain this policy under the Equal Protection Clause. A primogeniture statute, though, would avoid this problem. Rather than being passed to "cut out" other legitimate children from inheritance, the hook of the statute would need to be eliminating any inheritance by more than one person. Thus the protection is not of the property of the eldest child, but rather of a state interest in unitary inheritance. Of course, a state interest in such must be proferred, but as Angus noted, preventing the break up of property could be one such interest. Another possibility is ease of administration.

Professor Strahilevitz has a fascinating reply to my post about zoning sex offenders. [His first post is here, Professor Berman's newest post is here.] I will add that I have finally read the Iowa Supreme Court's decision upholding the same decision, which is jurisprudentially unhelpful on many scores.

In particular let's consider the question that Professor Strahilevitz and I are both fascinated by, whether or not there is a "fundamental right," as the Supreme Court likes to call it, to live where one likes if one can afford the property. (And let us bracket for now the usual hot topics, like whether fundamental rights ought to create federal questions, and so on.)

In support of its contention that "freedom of choice in residence ... is not a fundamental interest entitled to the highest constitutional protection," the Iowa Supreme Court cites so far as I can tell only one case, Prostrollo v. University of South Dakota, 507 F.2d 775, from the 8th Circuit.

Prostrollo turns out to have considered only whether college regulations that required students to live in university housing was unconstitutional, and I confess that the cases seem quite different to me. Prostollo even explicitly noted that "this is not, it must be noted, a case in which the right to live in a given geographic area is affected ... " so one might think that the Iowa Supreme Court should have at least discussed whether Iowa's Sex-Offender-Free-School-Zones-Act in affected "the right to live in a given geographic area."

The Prostrollo citation turns out to be even more unhelpful because the Prostrollo court also made much of the need to be very deferential in 14th Amendment cases about matters of state concern. I tend to agree that federal courts should not be careful about overruling state legislatures on policy grounds; but the concerns that afflict a state court interpreting its own state's constitution are surely different, and state courts might have good reasons to be more "activist", as I have argued before. Unfortunately, because the Iowa Supreme Court has decided to peg the Iowa due process clause to the federal one, federal judicial decisions about the proper relationship between federal courts and state legislatures are automatically incorporated as decisions about the proper relationship between state courts and state legislatures.

But all of this criticism is only prefatory to saying that the Iowa Court and 8th Circuit may well be right that there is no historically-recognized fundamental right to live on one's land. Like Professor Strahilevitz, I would like to see (and perhaps do) more research on this point, but the Prostrollo court does cite the obvious point about zoning ordinances. It is true enough that the original zoning ordinances ratified by The Supreme Court in Euclid v. Ambler Realty restricted only business and multifamily uses while allowing individual homeowners to locate anyplace they want. Those zoning statutes restricted the right to work where you wanted but not to live where you wanted.

But a great number municipal statutes do create "exclusive commercial/industrial zoning" which forbids people from living on commercial- or industrial-zoned real estate, even if they own. See, e.g. Roney v. Board of Supervisors (1956) 138 CA2d 740 and the things cited therein. In other words, the right to live where one wants to, even on land one owns, seems unlikely to be a fundamental right, given how common and relatively uncontested are the ordinances which infringe it.

On the other hand, many of these exclusive zoning ordinances are newish (dating to sometime in the early 20th century, I think), so even though there is unlikely to be a general right to live where you want to, there is indeed something unpleasantly totalitarian about laws that tells people "despite what the landowner says, thou shalt not live here."

And more importantly, they are uniform. The state does not say that right-handed people can live in the industrial park where left-handed people must stay in the suburbs, but rather excludes them uniformly. I take it from Professor Stahilevitz's newest post about zoning obese people that what rankles him most about sex-offender laws is that they tell some landowners "keep out" while letting other landowners in. Of course, in constitutional parlance this is an equal protection problem, not a fundamental-rights problem, and no court thinks that fat people or sex-offenders are a "suspect class", just as felons, burglars, and traitors are not. This means that laws that discriminate against them face no heightened scrutiny.

But something still seems wrong with this picture. If we believe in this kind of equal protection analysis and fundamental rights analysis in the first place (maybe we do not, but let us work with what we have for a moment), there still seems something fishy about the on/off nature of the inquiries here. The solution, for those who seek a federal constitutional solution, might be to invoke something like Thurgood Marshall's sliding scale analysis from his dissent in San Antonio Independent School District v. Rodriguez. Rather than asking whether a right is fundamental (if yes, strict scrutiny, if not, rational basis) and whether a classification is suspect (if yes, strict scrutiny, if not, rational basis), Marshall would have somehow multiplied the two together, so that progressively less sane classifications become more suspect the more important of a right they infringe. This gets at, anyway, what seems to bother Professor Strahilevitz so much, that there does seem to be something deeply unAmerican and untraditional (racial ghettoes aside) about a telling certain people to Keep Out of one area, whether they own the land or not, while telling others to do as they please. I happen to think that Justice Marshall's dissent in San Antonio is eminently wrong in just about every respect, but that does not necessarily mean his sliding-scale theory is.

In this case, that might mean that "zoning Cartman" is unconstitutional but that "zoning sex offenders" is more reasonable, assuming that the class of people who have been convicted of certain felonies in a state court is a less suspect class than the obese; but it might also mean that public health care programs would be constitutional even if they burden both sex-offenders and the obese.

Myself, I am still not convinced that the Iowa statute violated the federal constitution, and while I share some of Professor Strahilevitz's constitutional doubts I think his are greater than mine. That said, I think it is wrong, wrong, wrong, for a state to use its land use regulations to pick on people, even when it thinks it has a pretty good reason for picking on them. I think there are a wide variety of tactics, some heavy-handed, some reasonable, that a state might use to alleviate the fear of recidivist felons, but I do not think residential ghettoization should be in the regulatory quiver.

I have been meaning to post about this for some time, but Professor Lior Strahilevitz's post on PrawfsBlawg will finally set me going. Professor Strahilevitz blogs about the latest rage in land use restrictions-- laws that zone sex offenders and force them to live in particular areas. Professor Berman has also posted about this recently.

The recent text on this is the 8th Circuit's decision in Doe v. Miller. Professor Strahilevitz thinks the most interesting thing about the opinion is the 8th Circuit's rejection of the Glucksberg fundamental-rights claim; as he points out, the cases of government-enforced ghettoes are a widely discredited part of American history. I think the 8th Circuit decided this one rightly on the case law. Government-enforced racial ghettoes are unconstitutional because they are racial, not because they are ghettoes. (They are morally wrong all the time, but alas, under the 14th Amendment that is neither here nor there).

I am more intrigued by the ex post facto claims, but after the Supreme Court precedents here, the 8th circuit seems once again right. For reasons that have never quite been clear to me, the Court has held that a punishment is criminal only if it is really really obvious that the punishment is criminal, or if the legislature says it's criminal. This means that as a matter of fact, if local legislatures want to avoid the presumption of innocence, the ex post facto ban, or any of the vast constellation of protections for those accused of crimes, they can frequently do so.

The 8th Circuit dissent makes a reasonable point that banishment was traditionally sometimes thought of as a punishment, but I am not sure that this is persuasive from a constitutional point of view. First of all, because the restriction here only amounts to partial banishment; a state law that bans people only from part of a state is not the same as one that bans them from the entire state, or a municipal law that bans them from the whole city. But second of all, the law does not banish so much as block-out. (It has a grandfather clause for those who took up residence before July 2002.)

Blocking-out laws were not always thought of as punitive in our history. The example that leaps to mind is the 1851 Indiana Constitution, which provided that "No negro or mulatto shall come into or settle in the State, after the adoption of this Constitution". This would be unconstitutional according to today's Supreme Court, not because it would be a punishment, but because it would be a violation of equal protection.

I might add that federalism creates a further puzzle here for ex-post-facto-clause fans. Some members of the class of plaintiffs almost certainly committed their crimes outside of Iowa, in places where Iowa does not even purport to have jurisdiction over their actions. So if the banishment is a punishment it not only because it punishes people for what they did before the law was passed, but also punishes them under Iowa law for doing something that was not, and cannot be made, an Iowan crime. Put concretely, if California decides that the proper punishment for committing sexual assault in California is Y, it is not obvious why Iowa should be allowed to increase the punishment for California crimes, even if it announces its intention before the fact.

Anyway, there is also a possible rational-basis-equal-protection challenge under Cleburne. Land use restrictions that discriminate against people must be rational and not intended merely to harm a particular group. While the Court didn't believe that it was rational to ghettoize the disabled, I am quite confident that for better or worse it would decide differently about those who have at some point and in some jurisdiction committed a sexually violent crime.

I am not sure that all of these Supreme Court precedents are right. And I am not particularly happy with the way that nearly every government policy, from racial politics to suppressing pornography to harassing sex offenders, at some point finds its way into land use law; and I agree with Professor Strahilevitz that some scholar should analyze the history of government-mandated-residency-discrimination. But suppose we learn that racial-land-use-barriers have been common throughout American municipal history while others have not: which way does this cut, as a constitutional matter? For better or worse (and despite the fact that the 14th Amendment does not mention "race"), the government can discriminate along non-racial lines almost all of the time.

I have opened 5788">comments.

Victor muses (with what I believe to be approval) about the stream of laws enacted in various states to curb eminent domain abuse. [There appears to be some disagreement about whether these should be called "Kelo" laws or "anti-Kelo" laws, which depends on whether you want to name them after the Court's decision or the decision's victim.]

My favorite story on the trend so far has come from the Washington Post: "To call it a backlash would hardly do it justice." (But I could do without the notion that state protections of property constitute "nullif(ication)").

Meanwhile, Mark Graber hopes to become a victim of eminent domain. Of course, that means the government could obtain his home from him consensually; if only there were more Professor Grabers living in the path of Economic Development, we would not need eminent domain at all.

On the advice of SCOTUSBlog's Marty Lederman, I have been reading articles (any articles, all articles) by Charles L. Black. [My favorite thus far is his homage to dear Alexander Bickel, but I have plenty more to go.]

One of Black's repeated refrains is about the wrongness (and unconstitutionality?) of the death penalty on procedure/error grounds. This is a common argument nowadays, but it may well have been innovative then. Black argues that so long as our system is riddled, top to bottom, with errors that make it unlikely that the "right" people will be chosen for death, then we shouldn't kill the people that our system picks out.

I'm not so sure about the merits of this claim with respect to the death penalty, but one of Black's savviest arguments is his reply to death-penalty utopians, who ask him "Would you be for capital punishment--if you were sure it were being administered with perfect fairness?" This is how I feel when bloggers ask whether public-use abuse be a problem if we "fully" compensated homeowners for their losses. (E.g., Vic Fleischer, Marty Lederman, Dave Hoffman, Paul Goyette, and so on).

Charles Black had two replies to those death penalty supporters, and I now offer them to supporters of the Kelo decision. First, that it should not embarrass eminent domain opponents even if we hoped for a broader, less popular, limitation on government power. Or as Black put it: "The radical incapacity of human justice to handle this business right is only a lesser included case of its intrinsic wrongness--or at the very most is in no way inconsistent with the latter view." The Death Penalty Now, 51 Tul. L. Rev. 429, 445 (1977).

Second, and more importantly, we do not have such a system of perfect compensation, and there is no short-run chance and little long-run chance that we will. We have a system where largely under-supervised governments and unelected private agencies can take people's land while significantly underpaying, even if fighting city hall is worth the costs, which it frequently isn't. The question-- and there is one question at the moment, not two-- is whether we ought to let the government take-and-underpay on Wal-Mart's and Pfizer's behalf as well as its own.

Unsurprisingly, Black put this reply more eloquently than I can or could:

One could ask, "Would you take trains if the earth were made flat, or would you fear they would run off the edge?" I cannot assert for absolute sure that technology, even in my life, may not be adequate to flattening out the earth, gently enough to leave me alive. But why would we be talking about that now?

Let us not bother too much, now, about what we would do if the earth were made flat, or if π were a rational number ... No. Let us think instead about a real world, a real legal system, real cases.

Lyle Denniston calls John Cornyn's new eminent domain bill "bold" and implies, erroneously, that its constitutionality is questionable under Boerne. Not so. Cornyn's bill restricts federal eminent domain power quite severely, but this is constitutional if the eminent domain power is permissible in the first place-- just as Congress can repeal or partially repeal statutes, and just as RFRA (establishment and severability challenges aside) could still be applied to the U.S. Code. Cornyn's bill also restricts state/local governments but only to the extent they directly use government money-- this is spending clause power that even Justice Thomas would uphold.

However bold the bill may be politically, it is surely one of the most constitutionally unassuming things to come out of the 109th Congress.

[Alternatively, of course, we could move to the world of the late Professor Charles Black, who wrote in 1977 that "Insofar as the American experience speaks to that, it says that 'enumeration of powers' is on all fronts, judicial and practical, a failure." The Myth and Reality of Federalism, 9 U. Tol. L. Rev. 615. Yuck!]

UPDATE: Jenn Carter makes the same error.

Hillel Levin over at PrawfsBlawg joins in to pooh-pooh those who fetishize the incorporated 5th Amendment:

And if you think that there ought to be a law against this kind of taking . . . pass one.

The contributions from Professors Posner and Becker about the ongoing fight over Kelo prompts me to point out that there are two different ways in which "fair market value" undercompensates for the actual values people place on their homes.

1: Since courts are rightly reluctant to engage in too much excavation of subjective valuations, certain hard-to-quantify values simply go ignored. These include not only some moving and transition costs, the costs of lost social capital as one moves away from one's neighbors, the opportunity costs of time spent litigating and fighting these issues, and the loss of the psychic value of permanence, and so on. These really ought to be compensated, and it might be worth simply adopting a statutory rule that "just" compensation is 20% or so above FMV.

2: But there are other subjective values people place on their homes too, and it is not obvious that even in a Beckerian world or Epsteinian end-state that we would want to compensate all of them. People, after all, have notoriously thorny utility functions. Consider, for example, somebody who simply hates and despises eminent domain, a libertarian partisan who will derive intense disutility from the thought that the government gets its way; it might take millions and millions and millions of dollars to compensate for this person's "subjective value", and it will take some more complicated work to figure out what his "just" compensation is. Ditto the person who simply hates development, and so on. I take it(?) that very few people who believe in eminent domain in the first place think that the eminent-domain-haters deserve extra money to compensate them for their hatred.

Fine, say the economists and political scientists. We should simply ramp up "just" compensation to be an appropriate premium above FMV, and we should ignore those psychic costs that are simply related to a hatred of eminent domain or government projects, or whatever. The trouble with this is that it means that even an ideal-compensation-world, we will have rent-seeking problems unless there is robust public-use enforcement, and that rent-seeking leads to all of the usual inefficiencies, abuses, and pathologies. It may be that those problems are no worse here than in governance generally, but given the unique immobility of real property, I suspect that they will be.

UPDATE: It occurs to me that another problem with FMV compensation, although it is not related to the above analysis, is the regulatory/real takings divide. It's a well-known trick to enact regulations that reduce the FMV of a plot of land before then proceeding to condemn it with eminent domain. Since regulatory takings go largely un- and under- compensated, this gives you a discount on the eminent domain check; the government can then repeal the restrictions for free. Indeed, being able to massage restrictive regulations off of a piece of property is part of how one makes real money as a real estate speculator. In theory, many (all?) states have judicial review to fight this regulate-down-then-condemn trick, but I don't know of any place that does it effectively, or even knows how to.

UPDATE TWO: I have a new post, "Two More Undercompensation Problems"

In response to all of the outrage and anti-outrage (discussed infra), I went back to read the appalling Comment, The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale L. J. 599 (1949), which describes, with some unfairness to the historical record but plenty of excavation of then-recent cases, how the public use clause was dead and dying:

The Supreme Court has repudiated the doctrine of public use. Most state courts have arrived at the same conclusion, although rarely with so much directness. Doubtless the doctrine will continue to be evoked nostalgically in dicta and may even be employed authoritatively in rare, atypical situations. Kinder hands, however, would accord it the permanent interment in the difests that is so long overdue.

Kaimi Wenger is "disappointed" and surprised by the outrage that Kelo has engendered in the blogosphere. and Marty Lederman asks similar questions. The answer, which I hope is obvious, is that a lot of people think the court's decision was both legally and morally wrong. It does no good, as Stevens, Lederman, and Wenger do, to waive Supreme Court precedent as a resolution to the problem (let us leave aside the question of whether Berman and Midkiff and Brown command, outside of dicta, the result in Kelo).

After all, "(T)he ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." Graves v. New York 306 U.S. 466, 491-492 (Frankfurter, J., concurring). C.f. Akhil Amar, The 1999 Supreme Court Term, Foreword: The Doctrine and the Document, 114 Harv. L Rev 26, 84 ("Marbury-style judicial review presupposes that judges are enforcing the People's document, not their own deviations."); U.S. Const. Art. VI ("This Constitution ... shall be the supreme law of the land") (making similar claims about treaties and federal statutes but conspicuously not about statements issued by majorities of the Supreme Court).

The Supreme Court is often unwilling to jettison even erroneous precedent, but why shouldn't critics be outraged? The talk of "shock" does seem hyperbolic, I will grant. But I suppose the human answer to this is that people are optimists when important moral issues are at stake. In a triumph of hope over experience, they expect the court to enforce the law of the land, even when it would shock the legal establishment. The Court rarely has such courage.

Which brings us to Professor Ellickson, who "prefer(s) that the main battlegrounds on eminent domain issues be city halls, state capitals, and state supreme courts, not the federal courts." Though he suggests that this makes him "unlike the IJ," it is worth emphasizing that the Institute for Justice files most of its eminent domain cases in state courts (even though Williamson County probably does not require them to) that they have three state chapters devoted almost entirely to state-law litigation, an active grass-roots legislative arm, relentless media campaign, and so on. Unlike Professor Ellickson, I think that a moderate amount of federal litigation complements rather than contradicts the federalist vision we share (and there are serious concerns about economics-of-scale that a small charitable organization faces); but the battle will indeed be fought in state capitals and state courts, and IJ will be there fighting it.

Dahlia Lithwick, on Kelo:

So the city had a plan. Who doesn't have a plan?

There are two things wrong with Matt Yglesias's unsurprising endorsement of Kelo.

1, while it's true that "the basic legitimacy" of eminent domain was not at issue here, a lot of people are rightly more worked up about public-use abuse than eminent domain generally. If the government needs my land to build a highway, that's unfortunate, but I understand that sometimes this has to happen to overcome holdout and coordination problems, and I'll take my compensation. If the government needs my land because it's basically been auctioning off its eminent domain powers to the highest bidder, that's worse-- it creates much more of what Frank Michelman called demoralization costs, and eliminates the distinction between property rules and liability rules.

2, the notion that "there's only so outraged" one can be when the Supreme Court affirms mistaken precedent seems pretty clearly wrong. For one thing, a 1-day-old precedent has different force than a 20-year-old or 50-year-old one whose legitimacy has been questioned. For another thing, there really are areas of America where this kind of abuse goes on at quite unacceptable levels already. He uses the phrase "totalitarian dystopia" for dramatic effect, but Yglesias's status quo bias is apalling. Finally, local governments function under the shadow of quite unpredictable judicial review and frequently receive no small amount of deference from reviewing courts. Every time a new line is drawn in the sand that supposedly reaffirms the old line, it gives them the chance to push the line still further, because the Supreme Court is not going to police that line very carefully, which means that 20 years down the line the "diverse and always evolving needs of society" encompass what we once all would have agreed was the paradigm abuse. This is a slippery slope argument, and so subject to empirical falsification, but surely it's obvious that even at any given level of scrutiny a court that always threatens to push back does far more work than a court that has basically announced deference.

Of course Yglesias is right that there are silver linings in the Kelo decision, but he is quite wrong about what they are. They include: the Kennedy concurrence, the potential for state-level litigation, the non-trivial possibility of an about-face if the dissenters pick up an extra vote soon, and what appears to be a footnote-17 hint by Stevens that a 99 cents case might indeed violate the federal constitution (hopefully something will play Nectow to the Court's Euclid). But Kelo qua Kelo is pretty darn bad, even if expected.

I like my federalism as much as the next guy, if not a great deal more. I think Raich was wrongly decided, and I think whether a federal law is constitutional can depend on what kind of state laws are present. So I hope Angus will not think me a fair-weather federalist when I disagree with his suggestion that Kelo is right, and that we ought to waive takings-clause-incorporation good-bye and be content with a bunch of state-level takings clauses.

Angus suggests:

Isn't there a compelling federalism case for what the majority did? The states and municipalities are laboratories, right? Well, if New London and Connecticut want to run a really stupid experiment, massively unsettle property rights, and "foul their own nest" ... why not let them?

I hesitate to make such an obvious point, but-- one virtue of the Kennedy "I might grant heightened review later" concurrence, the Stevens "we will deal with abuses when we sit it" opinion as well as the "go enforce other constitutions in other courts" opinion is that it leaves a lot of work, and a lot of litigation to be done, much of it state by state, case by case. This takes time and it takes money. If you have enough to spare on charity and social justice, consider giving some, even a little, to The Institute for Justice or other groups that will be at the front line of the next round of litigation. Contra both Professor Garnett and Professor Merrill, I think they've been doing pretty well so far.

[Disclosure: The author of this post works for IJ, but posts this entirely at his own initative, and with some embarassment.]

Don Herzog picks on Representative Bartlett's freedom-to-display-the-american-flag bill. The bill would forbid homeowners' associations from forbidding the display of the flag. In that sense it's like the plethora of state and local laws that usually restrict what homeowners' associations can restrict, and fairly unexceptional. Of course, this bill is federal, and so Professor Herzog (rightly) points out that even after Raich any connection to the commerce clause is quite dubious.

I wonder, though, why assume that this bill would be justified under the ubiquitous commerce clause? After all, from whence does the power to specify or create a flag come from in the first place? According to David Currie, 63 U. Chi. L. Rev. 1, 47, the Third Congress understood its power to create a flag to be "inherent in nationhood"-- an argument which is reinforced by comparative constitutionalism and history. The Third Congress fretted about its enumerated powers a lot and certainly wouldn't have pegged a flag as commerce clause legislation without a huge fight.

But once we've put the American Flag outside of the commerce clause box, indeed outside of the Article 1, Section 8 box at all, it isn't fair to protest that other laws dealing with said flag aren't in the list of enumerated powers either. The Necessary and Proper clause applies not only to the Art. 1 Sec. 8 powers but to "all other Powers vested by this Constitution in the Government of the United States," so I take it the relevant question for Rep. Bartlett's flag act is not as Professor Herzog erroneously assumes, what relationship homeowners' associations, flags, et. al. have to interstate commerce. The relevant question is whether a federal law that provides an inalienable right to wave the flag is "necessary and proper," in the Constitutional sense, to Congress's presumed power to create the flag in the first place. This seems to me quite an open question.

To be honest, I am a little uneasy with the "inherent in nationhood" argument for the Federal definition of the American Flag-- we are supposed to be a government of enumerated powers, after all. But given the constitutionality of the American Flag, which Professor Herzog does not question, the constitutionality of federal flag-waving law is non-frivolous, and certainly not "constitutionally hopeless".

[It is possible that Professor Herzog has in mind some different enumerated-power home for the flag; surely(?) not the interstate commerce clause, but perhaps the war powers (as Justice Rehnquist has implied), or the 14.5 power, or something else. But whatever it is, it's probably that enumerated power that would provide better grounding to the Bartlett Flag Act.]

I think I may have been the only person in my Land Use class who thought that Williamson County Planning Commission v. Hamilton Bank was by far the most interesting case we read all quarter. [The word on the street is that the opinion was written by one of the authors of our Land Use textbook, during the year she clerked for Justice Blackmun, so I may also have been the only person in the class who cared about the case and was troubled by it.]

Williamson County is one of those dry-ish procedural cases, the basic thrust of which is that you can't bring certain federal takings claims in federal court until you've 1, gotten a final decision from the relevant local land use authorities and 2, litigated for whatever kind of state compensation you are entitled to. There is some basically compelling logic to this: "public-use" clause aside, there is no 5th Amendment/14th Amendment right not to have one's property taken, only the right to get paid for it. If that's so, the federal courts sensibly don't want to hear the case until the state has decided whether and how much to pay you.

Anyway, the lesson of my Land Use class seems to be that federal courts hate land use cases, don't want to hear land use cases, don't want anything to do with land use cases, and would rather pass the decisions on to state court judges, who are more likely to know the law of the land (and-- perhaps some federal judges think-- have nothing better to do anyway). See, e.g., River Park v. City of Highland Park, 23 F.3d 164, 165 (Easterbrook, J.):

Federal courts are not boards of zoning appeals. This message, oft-repeated, has not penetrated the consciousness of property owners who believe that federal judges are more hospitable to their claims than are state judges. Why they should believe this we haven't a clue; none has ever prevailed in this circuit, but state courts often afford relief on facts that do not support a federal claim. Is it that they have omitted the steps necessary to obtain review in state court and hope for the best in a second-chance forum? Well, we are not cooperating. Litigants who neglect or disdain their state remedies are out of court, period. ... . Federal litigation is not a repechage round for losers of earlier contests, or for those who overslept and missed the starters' gun.

I, like most other court-watchers, assume that the property owners in Kelo will lose, and lose badly, when it comes down. But if that's so, is there any consensus about why four Justices decided to take the case in the first place?

In defense of rules rather than boundless discretion, Matthew Yglesias writes:

Zoning laws, at times, have various sorts of bad effects. But if instead of zoning laws, you had an eleven person elected board that just got to decide who gets to build what where on an ad hoc basis, things would get much worse. A really rigid set of rules, naturally enough, will produce bad results in some cases. Concentrating a huge amount of totally discretionary power in the hands of a small group of people who will become the subject of massive campaigns of lobbying, bribery, etc. would be worse.

Well, three hours and seventeen pages later, my Land Use exam is done-- my first graded law school exam. I seem to have survived, although with a very strong cramp in my elbow.

Because there is not enough in my life to distract me, I have also agreed to post a few things over at co-blogger Sudeep's; any posts there will likely be incoherent, sporadic, and pretentious.

And I'm glad to see that Amanda has finally returned to the fold. Now if only we can convince her to return to the eastern half of the country as well.

The third season of the Gilmore Girls is out on DVD, and thanks to Netflix, I just saw episode 3.03, which Peter posted about a while back. In that episode, Taylor decides that he wants to put a soda shop in the building Luke owns. Luke resists, having both no interest in a crummy old soda shop and no interest in doing anything that makes Taylor happy, but pursuant to some local statute, upon a 3/4 vote the town decides to force Luke to let the storefront be used for selling ice cream sodas. Does Luke have legal claims?

Yes and no. Taylor and the city are pretty explicit that they are using the power of eminent domain here, which generally implies that there is a compensable taking. On the other hand, since they are not actually taking over the title to the shop, Stars Hollow might try to argue that this is a mere regulatory taking, if they were to consult with their lawyers. Courts are reluctant to look into the legislative history of a land use regulation, so even Taylor's explicity reference to "eminent domain" might not count against the town. Luckily for Luke, though, Supreme Court precedent makes it pretty clear that forcing the owner of property to admit tenants against his will is a per se taking. Yee v. City of Escondido, 503 U.S. 519, 528 (1992); see also Loretto v. Teleprompter Manhattan CATV Corp, 458 U.S. 419, 435 (1982). Unfortunately, all that gives him a right to is just compensation-- that means Taylor has to pay market rent, which is good, but not what Luke was hoping for.

Luke also seems to make a "public use" argument. As in Berman v. Parker, 348 US 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 US 229 (1983), Luke suggests that the eminent domain power only permits private property to be "taken" for "public use". ("That’s for taking over houses to turn into hospitals during a national emergency like the Civil War. If you wanna turn this place into a Civil War hospital, be my guest!") Some commentators have cast doubt on the existence of a "public use" requirement of the U.S. Constitution, but the Supreme Court has recognized it, even while unanimously rejecting the public use challenges in Berman and Midkiff. His challenge will most likely be held until New London v. Kelo (04-0108) is decided this term. Since Kelo will probably lose, this is unlikely to help Luke much.

Luckily for Luke, there is more to the world than federal constitutional law, and he still has plenty of claims. Since Stars Hollow's eminent domain law is authorized only by various Connecticut state laws, Luke will have plenty of statutory challenges. It is not clear what state law authorizes Stars Hollow's zoning law. The inherent powers of a locality won't do it, Conn. Gen. Stat. § 7-148(6)A(iii), since the taking here is not for a "public work," nor will the State Zoning Enabling Act, since Stars Hollow exercises its power neither through a zoning board nor a board of selectmen as required by §8-1. Even if Stars Hollow can drum up the authorization to exercise Eminent Domain, which is exceedingly unlikely, Connecticut state constitutional public use law may be more generous, especially in light of the lack of a comprehensive plan here.

It may not be worth Luke's while to challenge the town's authority here, since they might well be able to retaliate against him by constituting a proper zoning board, enacting a comprehensive plan for "revitalization" of the downtown business district in Stars Hollow, and then just taking his whole building from him. That's unlikely at the moment given his standing in the community, but if he were to give up his reputation as a go-along get-along guy and start litigating,Taylor might well be able to convince the town that Luke could not be trusted as a downtown landlord.

If that were ot happen Luke would have more claims, Village of Willowbrook v. Olech, 528 U.S. 562, (there is an equal protection "class of one" when a single landowner is irrationally retaliated against by municipality) but that will just get him back in federal court with a less than 40% chance of prevailing, and with so many litigation costs as to hardly be worth it.

Anyway, it's time for me to get back to my Land Use outline.

You know you've been reading too many 7th Circuit opinions when you can tell, from a single line quoted in the casebook, who the author is. In this case, Judge Easterbrook, River Park v. City of Highland Park, 23 F.3d 164, 165. E.g.:

Federal courts are not boards of zoning appeals. This message, oft-repeated, has not penetrated the consciousness of property owners who believe that federal judges are more hospitable to their claims than are state judges. Why they should believe this we haven't a clue; none has ever prevailed in this circuit, but state courts often afford relief on facts that do not support a federal claim. Is it that they have omitted the steps necessary to obtain review in state court and hope for the best in a second-chance forum? Well, we are not cooperating. Litigants who neglect or disdain their state remedies are out of court, period. ... . Federal litigation is not a repechage round for losers of earlier contests, or for those who overslept and missed the starters' gun.

Professor Drezner puts forth the tentative hypothesis that making a national issue out of Terry Schiavo's case may well retard a culture of life rather than increase it. (The idea being that people who don't want to be kept alive while in vegetative states now see how important advance consent is, and are more likely to write out a living will.) Whether this is good or bad thing of course depends on whether one thinks people should be allowed to consent to death here, and whether one thinks that Type I or Type II errors are more tragic, and in what ratio.

That said, it does seem quite likely to me that if one cared primarily about trying to keep people in vegetative states alive, the smarter tactic would be to generally encourage people in the perception that their wishes would be followed after death, but to in fact put up enough procedural tangles and barriers that it is unlikely that a person's wish to have the plug pulled will actually be respected. This would imply that high-salience cases like Schiavo's are bad for that end-goal. I'm not sure I approve of this sort of tactic, or of this goal, but if one did, it seems like this would be the way to go.

This idea, for better or worse, is basically stolen directly from Jeffrey E Stake, Darwin, Donations, and the Illusion of Dead Hand Control, 64 Tul. L. Rev. 705, which suggests that the Rule Against Perpetuities may do similar work by being obscure and hard-to-understand-- satisfying the living by making them think that others will heed them when they go, but in fact doing what we the living want done once they can no longer complain.

Both Ben Glatstein and I have blogged before about Professor Strahilevitz's working paper on The Right to Destroy. It's fascinating, and the more non-fascinating papers I read the more my opinion of it has gone up. So I was very pleased to pick up a copy of the Yale Law Journal yesterday and see that the paper is now in print. I highly recommend it. (As an added bonus, it might be the first law review article with the words, "Cf. Garden State (Fox Searchlight Pictures 2004)")

A three way compare-and-contrast:
IJ's Lawrence brief:

There are countless private activities that are protected by no tradition or express constitutional provision. It would be unimaginable that they could be prohibited in a free society, even if some objection could be raised to them--cooking unhealthy meals, staying up too late, spending a slothful day drinking coffee and doing puzzles instead of accomplishing something productive. Indeed, almost anything that an ordinary person might spend his or her weekend doing, from gardening to cleaning to touching up house paint, would probably not qualify as a "fundamental" right. Yet such private activities, in the aggregate, are the essence of ordered liberty.

The expansive definition of "public" in Poletown is just the flip side of the increasingly common idea that any negative effects of private activity should be public concerns--that ugly architecture is "visual pollution," vulgar movies are "cultural pollution," and personal habits like smoking cigarettes or eating too much are a matter of "public health." Follow that logic, and pretty soon everything we do has to be either subsidized, regulated, or banned.

Chilling! Except when you think about it, everything we do is either subsidized, regulated, or banned already and, you know what, though this world certainly has it's share of problems, things are basically okay.