Monday, April 12, 2010

Justice Stevens (and Prof. Echeverria) on property rights

With all the news about Justice Stevens' retirement announcement, I haven't seen any immediate discussions yet of his legacy in the area of property rights and takings.  In his 35 years on the Court, Justice Stevens went from joining then-Justice Rehnquist's dissent in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (arguing that the NY Landmark law effected a compensable taking of property rights) to authoring the majority opinion in Kelo v. City of New London, 545 U.S. 469 (2005) (upholding the government's exercise of eminent domain power over private homes under the Public Use Clause as part of a plan to promote economic development).  With these and many other important property law cases, Justice Stevens has had an influential role in the development of American land use law. 

To get a great understanding of Justice Stevens' legacy in property rights and land use law, I highly recommend an article by John Echeverria (Vermont Law School) called The Triumph of Justice Stevens and the Principle of Generality, Vermont Journal of Environmental Law, Vol. 7, No. 22 (2005-06).  The trajectory of the article describes the trends in Justice Stevens' jurisprudence over time:

Justice Stevens was appointed to the Supreme Court by President Gerald R. Ford and took his seat on the Court on December 19, 1975. In rough outline, Justice Stevens’ career on the Court in relation to takings doctrine falls into three discrete phases. The first should be called the Era of Disinterest, because for the first ten years of his career (with one notable exception) Justice Stevens wrote and did little of significance in the area of takings. This lack of activity may have reflected a lack of curiosity about the issue, or perhaps the lesser influence that a junior Justice customarily exerts. The second phase should be called the Era of Exile, because it is characterized by a series of dissents, usually expressing his views alone, reflecting increasing disillusion with the direction of the Court's takings doctrine, including in First English Evangelical Lutheran Church v. County of Los Angeles, Dolan v. City of Tigard, and Lucas v. South Carolina Coastal Council.  The final phase should be called the Era of Triumph, because it represents Justice Stevens leading a firm Court majority in the articulation of an increasingly coherent vision of takings law, one that cuts back in important respects on the decisions from which Justice Stevens dissented during the Era of Exile.

And a bit from the intro on Echeverria's thesis:

[T]his paper seeks to focus on the substance and internal logic of Justice Stevens' thinking over time, and attempts to discern whether and how his thinking has influenced the overall direction of the Court's takings decisions.  As discussed below, an examination of Justice Stevens' career reveals a number of interesting and important themes, including (1) support for the broad authority of the political insitutions of government to reshape the content of property interests over time; (2) opposition to the temporary regulatory takings theory; and (3) emphasis on the need for an interpretation of the Takings Clause that does not intrude too deeply into the political process or interfere with the ability of government to respond flexibly to emerging social problems.  Over time, Justice Stevens' consistent articulation of these themes has greatly influenced the Court's takings decisions. 

But the most significant—and certainly the most consistent—thread of Justice Stevens’ thinking on takings has been his focus on whether the challenged government action is general in character, affecting not only the claimant but others in the community as well, or whether instead the action singles out a particular owner for unique treatment. As will become apparent from the discussion that follows, Justice Stevens’ focus on the issue of generality reflects two underlying considerations. The first, rooted in straightforward economic theory, is that general regulations should be less likely to raise takings concerns than particularized restrictions because they typically produce both burdens and countervailing benefits for individual property owners. The second is that when political institutions act in general terms, rather than in a targeted fashion, there is more reason for confidence that the decision reflects a thoughtful, carefully considered assessment of all relevant costs and benefits, rather than the opportunistic highjacking of the political process to benefit some special interest.

Anyone interested in Justice Stevens' legacy for property law should check out Echeverria's article. 

Matt Festa

Caselaw, Constitutional Law, Eminent Domain, Property Rights, Scholarship, Supreme Court, Takings | Permalink

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