Friday, November 13, 2009
The "takings clause" of the Fifth Amendment provides "nor shall private property be taken for public use without just compensation.” Much of the constitutional controversy has revolved around "taking," especially when the "taking" is through regulation rather than physical appropriation.
However, with Kelo v. City of New London, 545 U.S. 469 (2005), the issue of "public use" assumed prominence. In Kelo, the Court acknowledged the two poles of "public use": the clearly constitutional situation when the government takes private property and will itself use that property (e.g., for a road) as opposed to the clearly unconstitutional scenario if a government were to take private property and then transfer that private property to a private entity for private use. Relying on precedent relating to railroads, a majority of the Court held that the City of New London's taking of property in this "blighted" area and transferring it to companies including Pfizer that would develop the property amounted to a public use.
One way to portray the Kelo controversy is as a pitting of "little" individual property owners against "big" government and corporate interests. The Little Pink House, a book published this year, is true to this narrative, providing a compelling account of Susette Kelo, the case, and its aftermath. For a more nuanced view, there is an excellent and critical review of the book by Professor George Lefcoe who teaches property at USC, available on ssrn here, and forthcoming in Connecticut Law Review.
The newest development in the factual landscape might be called a "non-development." As reported by the New York Times, Pfizer is leaving the development in New London, Connecticut and taking 1400 jobs. The report (with audio) on Democracy Now notes that Souter (who was in the majority in Kelo) has been replaced by Sotomayor, but that change would probably have less impact on any future "public use" case than the "feedback" to the Court's opinion. As Dana Berliner, who represented the homeowners in Kelo expressed it on Democracy Now:
I don’t think there was anything in the [Sotomayor confirmation] hearings that would tell us that [she would rule differently]. I’m hoping, though, that what has happened since will have an effect on the court. The court’s decision basically said, “If the city’s got a plan, then we’ll just trust that they know what they’re doing. We won’t look at it.” And it was evident, even at the time, that this project was going to fail. And we showed that, and the court said they didn’t want to hear about it. I’m hoping that now, the next time they look at it, they’ll realize cities don’t know what they’re doing. They don’t know how to engage in risky real estate deals. And this is not the kind of thing that we should be using, eminent domain, in order to allow private companies to make a greater profit.
(with thanks to a number of CUNY School of Law students from previous Constitutional Law classes who forwarded various articles this week).
Saturday, November 22, 2008
This year, like last, I debated whether or not to include the Fifth Amendment's "Takings Clause" in the Constitutional Law syllabus. On the one hand, the cases make fascinating reading and teaching; they connect to larger issues of constitutional rights, constitutional interpretation, and the balances between legislative (and regulatory) action and judicial role. On the other hand, the cases often rely on understandings extraneous to a constitutional law courses - property notions (e.g., ownership of airspace) or other complex arrangements ( e.g., escrow accounts maintained by lawyers and the interest such accounts earn). And this year, like last, I decided to include the takings class, although I decided to streamline the materials and cover - in one 90 minute class - both the difficult issue of regulatory takings (a bit less difficult after Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)) and the issue of public use as demonstrated by Kelo v. City of New London, Ct., 545 US 469 (2005).
If you likewise debate whether or not to cover the takings clause, this week's scholarly review is worth considering. Jeffrey Gaba, in his article, Taking Justice and Fairness Seriously: Distributive Justice and the Takings Clause, 40 Creighton L. Rev. 569 (2007), provides one of the more compelling arguments for including the takings clause in any constitutional law course.
This is not to say Professor Gaba's explicit task is urging constitutional law professors to include the subject in our courses - - - Gaba teaches Environmental Law at SMU Dedman School of Law and doesn't mention course coverage. Rather, Gaba is arguing that the philosophical issue of distributive justice (of interest, Gaba states, to "philosophers from Aristotle to Star Trek's Mr. Spock"), is converted into an issue of constitutional law by the Court's taking clause jurisprudence.
As he states in the conclusion:
For good or ill, the concept of the Takings Clause as a principle of distributive justice arises from the Supreme Court's own statements. The Supreme Court has made and repeated the claim that the Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
At a minimum, the Court should be aware of the consequences that follow from such a view.
Viewed through the lens of distributive justice, takings analysis gains a sharper focus on those factors that are relevant to assessing the “fairness” of imposing costs on the few to benefit the many. The logical implication of this view is a takings test which is no more clear or certain in application than the current muddle. Additionally it expressly requires the courts to engage in social and philosophical judgments that many would say are beyond their competence (used both in the sense of judges' institutional role and their intelligence). Perhaps most significantly, it suggests a limited role for the judiciary in policing the social judgments of legislators and could confine the Takings Clause, along with the Due Process Clause, to a limited role.
Id. at 593-4 (footnotes omitted).
Gaba's article is brief, but has a very good overview of the theories of distributive justice - - - thankfully rather quickly replacing Star Trek's Mr. Spock with Nobel Laureate Amartya Sen. For the most part, he seems to assume a reader's familiarity with takings clause doctrine, using it facilely to demonstrate his theoretical points. He does, however, provide what he calls the "two dirty little secrets" of the Takings Clause:
First, there is virtually no historical evidence on the intent that lay behind the adoption of the Taking Clause in the Fifth Amendment. Second, it was not until 1922 that the Supreme Court, in what was an extraordinary act of judicial activism, claimed that the Takings Clause acted to limit government regulatory authority.
Id. at 571.
Gaba's piece does not include a discussion of Kelo and "public use," but his observations about regulatory takings jurisprudence are easily extended. Highly readable and insightful, I'm putting this article in my course notebook to remind me why the takings clause is an important, if often difficult, unit on the constitutional law syllabus.