August 09, 2012
Two Papers on Due Process and Takings Posted to SSRN
Two important papers on Due Process and the Takings Clause to the United States Constitution appeared on SSRN yesterday.
In "Property's Constitution" (California Law Review, forthcoming), Professor James Y. Stern (Virginia) considers property's meaning under the Bill of Rights and observes that the Court has failed to clearly distinguish property rights, protected by the Takings Clause, from legal rights, protected by Due Process. Here is the abstract, which further summarizes the problem and his solution:
Long-standing disagreements over the meaning of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.
This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.
In "Irregular Kelo Takings: A Potential Response to Natural Disasters" (The Urban Lawyer, forthcoming), Professor Fredrick E. Vars (Alabama) considers whether or not communities may re-draw urban lots following natural disasters to increase property tax revenue after Kelo v. City of New London. The abstract:
Tornadoes, hurricanes, floods, mudslides, earthquakes, tsunamis, volcanoes, and fires devastate property. Prior studies have shown that rectangular urban lots are much more valuable than irregular ones. Local government faced with an essentially blank slate after a natural disaster might therefore redraw boundary lines to eliminate irregular parcels. This essay assesses that strategy and concludes: (1) the premium for rectangular lots is smaller than previously estimated, but still significant; (2) the controversial United States Supreme Court decision in Kelo leaves open the door to squaring lots as a means to increase property tax revenue; and (3) post-Kelo legislation in many states inadvertently closes the door on this perhaps sensible strategy.
March 15, 2010
Fifth Circuit on Leg Shackles and Due Process
Last week, the Fifth Circuit Court of Appeals reversed a drug conviction against a pro se defendant, finding the district court'violated the defendant's Due Process rights when it ordered him shackled in leg irons during the jury trial. United States vs. Jose Enrique Banegas, No. 08-10915 (5th Cir. March 9, 2010).
Federal authorities arrested Banegas during an undercover drug investigation and charged him with drug trafficking. Banegas represented himself pro se at trial (the court appointed a public defender as standby counsel). The trial judge ordered Banegas be shackled during trial "the same 'as everyone in this court who has tried a case pro se that's incarcerated." Banegas objected to wearing the leg irons during trial on grounds that the shackles were prejudicial -- the trial judge overruled the objection, commenting that she could not see the shackles and that it would be "difficult" for the jury to see them. The jury convicted Banegas - the court sentenced him to 365 months in prison.
The United States Supreme Court's decision in Deck v. Missouri, 544 U.S. 622, 629 (2007) (Deck was a 7-2 decision; Justice Thomas's dissent is here) controlled the circuit court's analysis. In Deck, the Court stated that "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in exercise of its discretion, that they are justified by a state interest specific to a particular trial." The Deck Court considered shackling to be "inherently prejudicial" and required trial courts to state the reasons for shackling a defendant outside the jury's presence prior to continuing the trial before the jury with the defendant in leg irons.
The circuit court rejected the government's argument that an objection for "prejudice" did not preserve the constitutional error - prejudice, the circuit court stated, "speaks precisely to the due process concerns that shackling raises." The court then dismissed the reason for shackling provided by the trial court - that all incarcerated pro se defendants are shackled - as being insufficient to justify shackling this particular defendant in this particular trial. The court noted that the particularized safety and security concerns normally required to justify shackling a defendant during trial were absent from this record.
Finally, the circuit court noted that when the district court fails to state particular reasons for placing a defendant in leg iron during a jury trial and there is a question whether or not the jury could see the irons, the government bears the burden to prove beyond a reasonable doubt that the irons could not be seen by the jury, and further, to show beyond a reasonable doubt that the shackles, if so seen, did not contribute to the guilty verdict. With no factual support for this proposition in the record, the circuit court determined that the leg irons were visible to the jury. The court reversed and remanded the case for a new trial.
Trial judges should pay close attention to the record when taking security measures that may affect a defendant's right to a fair trial. The Supreme Court has noted that a decision to shackle a defendant, or a decision to take other security measure, has presumably negative effects not readily appearent in the record. Therefore, absent sound justification, a decision to order a defendant into leg iron will receive close scrutiny on appeal. Deck and now Banegas show that the court should make a trial-specific finding in the record regarding the need for the security measure being taken at trial. Taking the time to reduce to written order the evidence demonstrating the security risk and the steps taken to minimize the risk along with a finding that the steps taken are the least restrictive to the defendant's fair trial right among those availble to the court will help judges make and articulate a decision with the best chance to withstand appellate scrutiny.
February 19, 2010
Syracuse Law Review: Caperton v. A.T. Massey Coal Co. Symposium
Syracuse Law Review is publishing a Caperton v. A. T. Massey Coal Co. Symposium in its next issue. The United States Supreme Court in Caperton held that Due Process requires a judge to recuse himself from a case in which he received substantial campaign donations from one of the parties. From the symposium abstract:
In our symposium book on Caperton, we hope to analyze many issues arising from the case. Are the appearance of bias and the public's mistrust of the legal system enough to warrant reform? Should the Supreme Court have set forth a constitutional rule grounded in due process to require recusal? What effect will the Caperton decision have on federalism? Are there any downsides to requiring appointment of judges rather than permitting elections? All of those questions and many others are implicated by the Caperton decision, and it is our intention to delve below the surface and explore a wide range of issues that Caperton evokes.
The symposium contents include:
Dahlia Lithwick - Forward
Steven Lubet - It Takes a Court
Bruce A. Green - Fear of the Unknown: Judicial Ethics after Caperton
Elizabeth B. Wydra - The Fourteenth Amendment’s Due Process Clause and Caperton: Placing the Federalism Debate in Historical Context Ronald D. Rotunda - Judicial Disqualification in the Aftermath of Caperton v. A.T. Massey Coal Co.
Andrew L. Frey & Jeffrey A. Berger - A Solution in Search of a Problem: The Disconnect Between the Outcome in Caperton and the Circumstances of Justice Benjamin’s Election
James Sample - Caperton: Correct Today, Compelling Tomorrow
Congratulations to Syracuse Law Review on this very promising symposium edition.