Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, September 28, 2015

Symposium: Storming the Court

The New York Law School Law Review is hosting a symposium, "Storming the Court: 25 Years After H. C. C. v. Sale" on October 16 at the law school's Events Center.  This description comes from the Law Review's website:

In the early 1990s, well before the War on Terror, Guantanamo Bay served as a detention camp for three hundred HIV-positive refugees who had fled a military coup in Haiti.  In a remarkable human rights case chronicled in the book Storming the Court (Scribner) by Brandt Goldstein, law students at Yale and their professor, Harold Koh – himself the son of refugees – sued the U.S. government for the Haitians’ freedom.  The case, which ultimately involved Kenneth Starr, the Justice Department, the Pentagon, and Presidents George H.W. Bush and Bill Clinton, went to trial in federal court in Brooklyn, resulting in the Haitians’ release – and the first ruling in history that aliens held at Guantanamo are entitled to constitutional due process.

Almost 25 years later, with Guantanamo still looming large in the legal and foreign policy landscape, this symposium brings together the judge in the case, the Honorable Sterling Johnson, Jr. (E.D.N.Y.), as well as Professor Harold Koh (former Legal Adviser at the State Department), government attorneys, human rights lawyers and advocates, private practitioners, and seven of the most prominent former students (now all human rights advocates, lawyers and/or academics themselves) to explore the enduring impact of this extraordinary litigation.

Craig Estlinbaum

September 28, 2015 in Conferences, Faculty, Constitutional Law, Law Review Articles | Permalink | Comments (0)

Tuesday, September 8, 2015

Illinois: Free Speech Symposium

University of Illinois Law Review has published an online symposium with four essays in response to Alexander Tsesis's book, Free Speech Constitutionalism.  The essays are collected in the most recent issue of the journal's online companion, Slip Opinions.  Contributors are Mark A. Graber, David S. Han, Helen Norton and Margot E. Kaminsky.

Craig Estlinbaum

September 8, 2015 in Book Reviews, Constitutional Law, First Amendment, Law Professors, Law Review Articles | Permalink | Comments (0)

Wednesday, August 19, 2015

Goldberg: Free Speech Consequentialism

Erica Goldberg (Harvard: Climenko Fellow) has posted "Free Speech Consequentialism" on SSRN.  The abstract reads:

Balancing the harms and benefits of speech — what I call “free speech consequentialism” — is pervasive and seemingly unavoidable. Under current doctrine, courts determine if speech can be regulated using various forms of free speech consequentialism, such as weighing whether a particular kind of speech causes harms that outweigh its benefits, or asking whether the government has especially strong reasons for regulating particular kinds of speech. Recent scholarship has increasingly argued for more free speech consequentialism. Scholars maintain that free speech jurisprudence does not properly account for the harms caused by speech, and that it should allow for more regulation of harmful kinds of speech. This article evaluates the various ways courts already employ free speech consequentialism. It then establishes and defends a principled basis for determining when speech’s harms greatly outweigh its virtues. I argue that courts should engage in free speech consequentialism sparingly, and should constrain themselves to considering only the harms caused by speech that can be analogized to harms caused by conduct. In this article, I develop a framework that recognizes the need to incorporate free speech consequentialism, and to constrain it, at various stages of First Amendment analysis, in connection with both tort and criminal law. I then apply this framework to timely and difficult speech issues, including campus hate speech, revenge porn, trigger warnings, and government speech — with the aim of rehabilitating core values of our First Amendment doctrine and practice.

Ms. Goldberg's article is forthcoming in Volume 116, Columbia Law Review.

Craig Estlinbaum


August 19, 2015 in Constitutional Law, First Amendment, Law Review Articles | Permalink | Comments (0)

Monday, April 27, 2015

Roberts Court at 10: The Fourth Amendment

On September 29, 2005, The United States Senate confirmed then appellate court judge John Roberts to be Chief Justice of the United States.  The current October 2014 Term for that court marks the tenth term completed with Roberts at the helm.  We can therefore expect a flurry of ten year reviews this summer and beyond.  The Constitutional Accountability Center has posted "Roberts at 10: Roberts and the Fourth Amendment:  A Mostly Pro-Government Vote with Some Important Exceptions" at the CAC's website.  The paper is authored by Briane Gorod.

Craig Estlinbaum

April 27, 2015 in Constitutional Law, Criminal Law, Supreme Court | Permalink | Comments (1)

Wednesday, April 8, 2015

Elhauge: Contrived Threats v. Uncontrived Warnings

Einer Elhauge (Harvard) has posted "Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail" on SSRN.  The article is forthcoming in University of Chicago Law Review.  This is the abstract:

Contractual duress, unconstitutional conditions, and blackmail have long been puzzling. The puzzle is why these doctrines sometimes condemn threatening lawful action to induce agreements, but sometimes do not. This article provides a general solution to this puzzle. Such threats are unlawfully coercive only when they are contrived, meaning the threatened action would not have occurred if no threat could be made. I show that such contrived threats can be credible because making the threat strongly influences whether the threatened action occurs. When such threats are uncontrived warnings, meaning the threatened action would have occurred even if no threat could be made, they are not coercive and can only benefit the agreeing parties. However, sometimes (as with blackmail) agreements produced by uncontrived warnings are also unlawful on the different grounds that they harm third parties. The contrived-threat test explains why the Medicaid defunding threat in Obamacare was unconstitutional and why (in the pending Supreme Court case) interpreting Obamacare as threatening to withhold tax credits from States that do not create insurance exchanges should either be rejected under the canon of avoidance or result in constitutional invalidation of that threat.

Craig Estlinbaum

April 8, 2015 in Constitutional Law, Contract Issues, Law Review Articles | Permalink | Comments (0)

Monday, March 9, 2015

Separation of Powers and the Non-delegation Doctrine

Department of Transportation v. Association of American Railroads, No. 13-1080 (March 9, 2015) is one of those administration law cases that to the casual observer at first glance looks complicated, technical and, to be honest, boring.  The case exists because in 2008, Congress granted Amtrak and the Federal Railroad Administration joint authority to issue "metrics and standards" relating to Amtrak's scheduling and performance.  The Association ("AAR") challenged this authority in this case because the metrics and standards imposed adversely affects their members' freight business interests.  Normally, this is the type case I would not even read.  I'm sure glad I did.

The AAR argued Congress violated separation of powers rules by delegated this rule-making authority to Amtrak -- a private entity.  The Court of Appeals held for AAR on both issues -- that Amtrak was a private entity and that the Congress's delegation of authority violated separation of powers.  The Supreme Court reversed that first finding today and held unanimously that for separation of powers purposes, Amtrak is a government entity[1].  The Court remanded the case to the Court of Appeals for further consideration in light of this holding. 

Justice Kennedy wrote the opinion joined by seven other Justices, including Justice Alito, who concurred.  Justice Kennedy acknowledges that further litigation will determine whether Amtrak's role in setting rail regulations passes constitutional muster.  Justice Thomas concurred in the judgment only.  Justices Alito wrote about the implications for the Amtrak legislative and regulatory scheme now that Amtrak is held to be a governmental entity for these purposes.  These issues include the oath or affirmation requirement in Art. IV, cl. 3; the commission requirement in Art. II, Sec. 3, cl. 6; the scope of the relatively obscure non-delegation doctrine and whether Amtrak's legislative and regulatory scheme violates separation of powers. 

Justice Thomas goes further -- his concurring opinion is a lengthy and powerful commentary on the  separation of powers doctrine's history and purpose.  He concludes his opinion this way:

In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads’ statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority’s holding that Amtrak is a governmental entity is all but a non sequitur.  These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.

This case is going back to the Court of Appeals and may be satisfactorily resolved there or below, but the Court's decision and opinions today set the stage for a possible major showdown on separation of powers and the Court's non-delegation doctrine. 

For Background:

Edit to add: 

Craig Estlinbaum

[1] The Court previously held Amtrak to be a "Government actor" for First Amendment purposes in Lebron v. National R. R. Passenger Corp., 513 U.S. 374 (1995).

March 9, 2015 in Administrative Law, Constitutional Law, Interesting Cases, Recent Developments, Supreme Court | Permalink | Comments (1)

Tuesday, November 4, 2014

Connecticut: Privacy Symposium

The Connecticut Law Review will host its Fall Symposium on November 14, 2014, at the law school.  The symposiuim is titled "The 50th Anniversary of Griswold v. Connecticut, Privacy Laws Today."  The description reads:

Connecticut Law Review presents a symposium every fall to discuss an opportune topic of law. This year, the symposium will address the 50th anniversary of the Supreme Court's decision in Griswold v. Connecticut, exploring the history of the right of privacy through the present day. There will be three main topics discussed: the history of the right to privacy, privacy as sexual autonomy, and privacy as reproductive freedom. The keynote address will be provided by Professor Reva Siegel of Yale Law School.

The website says the symposium is free for those who RSVP by November 10.

Craig Estlinbaum

November 4, 2014 in Conferences, Faculty, Constitutional Law, Law Review Articles | Permalink | Comments (0)

Thursday, October 23, 2014

Effective Plea Bargains for Noncitizens

I have posted Effective Plea Bargains for Noncitizens on SSRN.  Here is the abstract:

In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.

This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.

I presented this paper at an immigration law symposium hosted by The Scholar: St. Mary's Law Review on Race and Social Justice in April.  The students and faculty hosting the event were top notch and I appreciated greatly the chance to meet and work with them all.

Craig Estlinbaum

October 23, 2014 in Conferences, Faculty, Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)

Friday, March 21, 2014

Illinois Declares Eavesdropping Law Unconstitutional

Yesterday, a unanimous Supreme Court of Illinois declared the state's eavesdropping law to be unconstitutional.  The case is Illinois v. Melongo, No. 114852 (Ill., March 20, 2014).

The statute reads:

(a) A person commits eavesdropping when he:

(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 108A or Article 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended; or


(3) Uses or divulges, except as authorized by this Article or by Article 108A or 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.

The defendant argued that the statute violated the first amendment both as to the recording provision in (1) and the publishing provision in (3), both facially and as applied.  The court observed that the law's stated purpose was to protect conversational privacy.  The law, however, "deems all conversations to be private and, thus, not subject to recording absent consent, even if the participants have no expectation of privacy."  The court held that the statute, "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy."  Therefore, the recording provision violates the first amendment on its face.  The court reached the same conclusion regarding 14-2(a)(1) in a different case presenting different facts the same day in Illinois v. Clark, No. 115766 (Ill. Mar. 20, 2014).

The State conceded that if the recording provision fails first amendment muster, the publishing provision must too fail, due to a U. S. Supreme Court decision on point.  Bartnicki v. Vopper, 532 U.S. 514 (2001).  In that case, "[t]he Court held that under the first amendment, the state may not bar the disclosure of information regarding a matter of public importance when the information was illegally intercepted by another party who provided it to the disclosing party.    The Illinois court determined that because Melongo was in the innocent party's position due to 14-2(a)(1) being declared unconstitutional, a bar against publishing the recording subjected her to a, "naked prohibition against disclosure." 

In a Chicago Tribune report on the case, Steve Schmadeke notes (link added):

The decision comes two years after a federal appeals court in Chicago found unconstitutional the law's ban on recording police officers in public. The 7th Circuit Court of Appeals ruling prohibited enforcement of that part of the law shortly before Chicago hosted the NATO summit in May 2012.

Craig Estlinbaum

March 21, 2014 in Constitutional Law, First Amendment, Interesting Cases | Permalink | Comments (0)

Saturday, March 15, 2014

Texas: Miller v. Alabama Applies Retroactively

The Texas Court of Criminal Appeals this week held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively.  In Miller, the Supreme Court held mandatory life without the possibility of parole sentences are unconstitutional for offenders that committed their crime while under 18 years of age.  The Texas case is Ex Parte Maxwell, No. WR-76,964 (Tex. Crim. App., March 12, 2014).

A jury found Maxwell guilty of capital murder arising out of a 2007 murder/robbery.  The State did not seek the death penalty so under Texas law the sentence automatically became life without possibility of parole after the jury returned the guilty verdict.  Maxwell was 17 when the crime occurred.

Texas utilizes the frameword announced in Teague v. Lane, 489 U.S. 288 (1989) to determine whether or not a Supreme Court opinion should be applied retroactively to criminal convictions already final following direct appeal.  The Teague framework provides a new rule applies retroactively in a latter collateral proceeding only if the rule (1) is substantive or (2) is a "watershed" rule of criminal procedure.  This court noted the split in authority nationally on Miller's retroactivity, and the court further observed a split on the question between two Fifth Circuit panels -- Texas lies within the Fifth Circuit.  The majority examined the cases creating the split, acknowledged the Supreme Court must ultimately resolve the split, looked into its "crystal ball" and concluded that evenutally the Supreme Court would apply Miller retroactively.   

The court decided the case 5-4 and generated short two dissents (see here and here).  This Texas case joins the deepening split among the several states and federal circuits regarding Miller's retroactivity.  We can expect more appeals courts to weigh in on the question until the Supreme Court ultimately grants cert and resolves the matter once and for all.

Craig Estlinbaum

March 15, 2014 in Constitutional Law, Criminal Law, Recent Developments | Permalink | Comments (0)

Friday, March 14, 2014

Florida: Damage Cap Statute Violates State Constitution

In a notable state constitutional law decision, the Florida Supreme Court on certified questions from the 11th Circuit, held that Florida's statutory cap on noneconomic damages in wrongful death cases violates the equal protection clause in the Florida Constitution.

The case is Estate of McCall vs. United States, No. SC11-1148 (Fla., March 13, 2014). 

Craig Estlinbaum

March 14, 2014 in Constitutional Law, Legislation, Recent Developments | Permalink | Comments (0)

Tuesday, March 4, 2014

Eldred: Ethics And The Response To Ineffective Assistance Claims

Tigran Eldred (New England Law) has posted "Motivation Matters: Guideline 10.13 and Other Mechanisms for Preventing Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective Assistance in Death Penalty Cases" on SSRN.  The article is forthcoming in the Hofstra Law Review.  Here is the abstract:

Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively viewing the claim of poor performance as an attack on their competency and reputation. To date, there has been no systematic attempt to understand how these tensions are mediated and resolved.

To fill this gap, this article explores the psychological dimensions of how lawyers can be expected to respond to allegations of ineffectiveness. Relying on empirical research into “motivated reasoning” – a phenomenon that describes the many ways in which people unconsciously seek out, interpret and recall information in a manner that is consistent with their pre-conceived wishes and desires – it argues that motivation can be expected to play a dominant role in how lawyers respond to alleged ineffectiveness. Further, because motivation exercises its power implicitly, efforts to encourage compliance with the obligations set forth in Guideline 10.13 must take into account the subtle psychological forces that influence behavior. Simply put: motivation matters.

Counsel's ethical obligations in response to an effective assistance claim is an important and often overlooked study area.  Such such claims are frequent in the criminal system, and are frought with ethical landmines.  Attorneys facing such a claim must answer the claim with due regard to the duty to maintain client confidentiality. Under what circumstances may an attorney reveal client confidences when responding to the ineffective assistance claim?  This is a serious question attorneys and courts must address in such cases. 

Professor Eldred gives criminal law attorneys much to consider when confronting a claim that representation rendered to a client has been deficient.   He has highlighted important ethical considerations an attory must weigh when responding to an ineffecitve assistance claim.  The paper is also useful to judges that issue orders compelling responses to such claims.  I don't agree with everything Eldred has written, but on the whole, this paper covers new ground and will be useful to practicing lawyers and judges.

Craig Estlinbaum

March 4, 2014 in Constitutional Law, Ethics, Law Review Articles | Permalink | Comments (0)

Monday, February 24, 2014

Maine Supreme Judicial Court rules in favor of transgender student on bathroom issue

The Maine Supreme Judicial Court, in a 6-1 split, has ruled that a school district violated a transgender student’s rights under the Maine Human Rights Act  when it prohibited her from using the girls’ communal restroom at school.

- See more at:

Doe v. Regional Sch. Unit 26, No. 12-582 (Me. Jan. 30, 2014)

February 24, 2014 in Constitutional Law, Education Law | Permalink | Comments (0)

Tuesday, October 29, 2013

Georgia Law Review: New York Times v. Sullivan at 50

The Georgia Law Review will host its Fall 2013, symposium, "The Press and the Constitution 50 Years after New York Times v. Sullivan," on November 6, 2013, at the campus.  The keynote speaker is Supreme Court Justice John Paul Stevens.  The agenda and registration information is here.

Craig Estlinbaum

October 29, 2013 in Conferences, Faculty, Constitutional Law | Permalink | Comments (0)

Thursday, October 24, 2013

Cohen on State v. Miller

Writing at The Atlantic, Andrew Cohen of the Brennan Center comments on the recent New Jersey Supreme Court case State v. Miller, A-35-11 (N.J., October 2, 2013).  His essay, "How Much Does a Public Defender Need to Know About a Client?" is here.

Craig Estlinbaum

October 24, 2013 in Constitutional Law, Criminal Law, Due Process, Ethics | Permalink | Comments (0)

Monday, September 30, 2013

Touro Law Review: Takings Symposium

Touro Law Review will host "The Takings Issue 40th Anniversary Symposium" on October 3 & 4 in Central Islip, NY.  For more information, click here.

Craig Estlinbaum

September 30, 2013 in Conferences, Faculty, Constitutional Law, Law Review Articles | Permalink | Comments (0)

Sunday, September 15, 2013

Aspiration for another position with the employer not a property right

Gokaran Singh v District Council 37, et al. US Circuit Court of Appeals, 2nd Circuit; 05-2255*
The Circuit Court of Appeals affirmed the district court's dismissal of Gokaran Singh’s complaint that he had been denied due process in connection with his alleged loss of property rights due him by his employer. The lower court had dismissed Singh's petition because, it held, Singh failed to demonstrate that he had been deprived of a cognizable property interest by his employer.
Singh’s complaint was based on his interest in obtaining employment in other positions within his Department, the New York City Department of Design & Construction, and his desire for an “exceptional performance” evaluation.
These objectives, said the court are “abstract need[s], desire[s] or unilateral expectation[s]” and do not satisfy the requirement that Singh demonstrate that he has been denied a property right.
* This summary order will not be published in the federal reporter and may not be cited as precedential authority to this or any other court, but may be called to the attention of this or any other court in a subsequent stage of this case, in a related case, or in any case for purposes of collateral estoppel or res judicata.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

September 15, 2013 in Constitutional Law, Employment Law | Permalink | Comments (0)

Monday, July 22, 2013

Targeting Union Employees For Layoffs Violates The First Amendment

State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), is an important case. I am surprised that this case has not gotten alot of national press. The 2d Circuit holds that targeting Union employees for layoff violates the First Amendment. The court applies strict scrutiny and reasoned as follows:
We ourselves have stated thatit cannot “be questioned that the First Amendment’s protection of speech and
associational rights extends to labor union activities.” Conn. State Fed’n of Teachers v.
Bd. of Educ. Members, 538 F.2d 471, 478 (2d Cir. 1976); see also Int’l Longshoremen’s
Ass’n v. Waterfront Comm’n of N.Y. Harbor, 642 F.2d 666, 670 (2d Cir. 1981) (“The
First Amendment’s protection of the right of association extends to labor union
However, we have never articulated a standard for determining whether, and under
what circumstances, a public entity’s employment decisions violate this right to associate
in unions. With respect to a public employee’s right to associate with political parties, the
Supreme Court stated in Rutan v. Republican Party of Illinois that government employers
may not “condition[] hiring decisions on political belief and association . . . unless the
government has a vital interest in doing so.” 497 U.S. 62, 78 (1990); see also Branti v.
Finkel, 445 U.S. 507, 520 (1980) (holding that termination of public defenders because
they were not affiliated with Democratic Party violated First Amendment); Elrod v.
Burns, 427 U.S. 347, 372-73 (1976) (holding that public employees who alleged they
were discharged because they were not members of sheriff’s political party stated a First
Amendment claim); Keyishian v. Bd. of Regents, 385 U.S. 589, 609-10 (1967)
(invalidating state university system’s prohibition on membership in Communist Party).
The Supreme Court was concerned that the government would “wield[] its power to
interfere with its employees’ freedom to believe and associate,” Rutan, 497 U.S. at 76,
and noted that “conditioning public employment on the provision of support for the
favored political party ‘unquestionably inhibits protected belief and association,’” id. at
69, quoting Elrod, 427 U.S. at 359. It therefore held that hiring based on political party
affiliation was subject to strict scrutiny and must be “narrowly tailored to further vital
government interests.” Rutan, 497 U.S. at 74; see also Branti, 445 U.S. at 515-16
(requiring “an overriding interest of vital importance” to fire a public employee solely for
his private beliefs (citation and internal quotation marks omitted)).
Conditioning public employment on union membership, no less than on political
association, inhibits protected association and interferes with government employees’
freedom to associate. It is therefore subject to the same strict scrutiny, and may be done
only “in the most compelling circumstances.” Rutan, 497 U.S. at 76.

Mitchell H. Rubinstein

July 22, 2013 in Constitutional Law, First Amendment, Public Sector Labor Law, Unions | Permalink | Comments (0)

Tuesday, July 9, 2013

New Jersey Supreme Court and Just Compensation

The New Jersey Supreme Court issued an important just compensation decision yesterday in Borough of Harvey Cedars v. Karan, No. 070512 (N.J., July 8, 2013).

In this case, the borough condemned part of the Karan's beachfront residential property to construct 22-foot high dunes to serve as a barrier against storm tides.  All parties agreed that the Karans' were entitled to just compensation - the case turned on what evidence should be admitted in determining that just compensation.

At trial, the court allowed the Karans' evidence relating to lost value due to the dunes obstructing their "oceanfront vista."  The trial court denied, however, the borough's evidence relating to the enhanced value for the Karans' property attributed to the added storm protection afforded by the dunes.  In the trial court's view, the storm protection constituted a general benefit.  The issue before the court was whether or not the cost incurred by the Karans, the part taken plus damages to the remainder, should be offset to the benefit the Karans might receive from dune project.

The Supreme Court reversed the trial court.  The court rejected the 19th century general benefits/special benefits dichotomy to hold that "just compensation should be based on non-conjectural and quantifiable benefits, benefits that are capable of reasonable calculation at the time of the taking."  The trial court erred, according to the opinion, but allowing the jury to hear evidence relating to the lost value due to the dunes, but not evidence relating to increased storm protection that would potentially enhance value.  

This opinion, issued unanimously, is a lengthy and detailed one and includes some history about just compensation law and the general damages/special damages rule.  We cover this issue in my Damages course so I will be incorpating either this case or the concepts this fall semester.

Craig Estlinbaum

July 9, 2013 in Constitutional Law, Faculty in the News, Interesting Cases, State Law | Permalink | Comments (0)

Friday, July 5, 2013

Yale Law Journal Symposium on Gideon v. Wainwright

The June 2013 Yale Law Journal includes a symposium on the iconic Warren-Era case Gideon v. Wainwright.  This issue includes:

Craig Estlinbaum

July 5, 2013 in Constitutional Law, Criminal Law, Due Process, Law Review Articles | Permalink | Comments (0)