Friday, October 14, 2005

Weekly Top Ten and Recent Property Scholarship

Here is the list of the top 10 papers by download in the last 60 days for SSRN's Journal of Property, Land Use & Real Estate Law (with total number of downloads in parens after the rank).  A new issue of the Journal just came out, so there is some movement from last week.  Abstracts for the new articles on the list, and for some other new property articles, follow the list.  Jed Purdy continues to have the #1 spot and a new article at #9.  That fink distinguished young scholar Purdy also has the lead for total downloads on the list, with 156 for his two articles compared to 150 for my two articles.  Not that anyone is counting.

1.  (114)  A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, Jedediah S. Purdy (Duke University - School of Law)
2.  (90)  At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, Benjamin Barros (Widener University - School of Law)
3.  (63)  Efficient Trespass: The Case for 'Bad Faith' Adverse Possession, Lee Anne Fennell (University of Illinois College of Law)
4.  (60)  Home as a Legal Concept, Benjamin Barros (Widener University - School of Law)
5.  (58)  Private Property, Development and Freedom: On Taking Our Own Advice, Steven J. Eagle (George Mason University - School of Law)
6.  (56)  Grave Matters: The Ancient Rights of the Graveyard, Alfred L. Brophy (University of Alabama - School of Law)
7.  (52)  Unsubsidizing Suburbia, Nicole Stelle Garnett (Notre Dame Law School)
8.  (48)  Default, Credit Scoring, and Loan-to-Value: A Theoretical Analysis Under Competitive and Non-Competitive Mortgage Markets, Danny Ben-Shahar (Interdisciplinary Center Herzliyah - Arison School of Business)
9.  (42)  The American Transformation of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy (Duke University - School of Law)
10.  (37)  Creating Markets for Ecosystem Services: Notes from the Field, James Salzman (Duke University - School of Law)

Abstracts for new papers (to access the article, click on the title)

Home as a Legal Concept, Benjamin Barros

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home.

The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.

The American Transformation of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy

Professor Purdy takes an early American change in the common-law doctrine of waste - governing relations between tenants and reversioners (sometimes landlords, sometimes heirs of deceased owners) - as an occasion to compare two modes of explaining doctrinal change: one exclusively economic, the other embracing political and ideological as well as economic explanations of individual and institutional behavior. Professor Purdy concludes that the fullest and most convincing interpretation of waste doctrine's transformation from English to American common law emerges from a pluralist account. He insists, however, that economic explanation not only has a central place in doctrinal interpretation, but is enriched even on its own terms by the addition of plural elements.

Early American courts moved the law governing tenants' use of land from a bright-line rule to a fuzzy standard. Courts styled the change an effort to rationalize the law in light of the very different proportions of land, labor, and capital present in North America as against those prevailing in England. Curiously, however, basic economic analysis of the American doctrine suggests it was not a clear improvement as an efficiency-enhancing device. The doctrine emerged, moreover, in the context of quasi-feudal landlord-tenant relations in the manorial estates of the Hudson Valley, which were in many respects the bete noir of the broadly republican ethos then prevalent in American law and politics. By examining the context of the seminal case and the thought of one its deciding judges - New York's Chancellor James Kent - on the relationship of property law to republican society, Professor Purdy shows how the change would have seemed attractive from the point of view of creating a formally egalitarian free-market society. This interpretation is not so much at odds with a conventional economic explanation as it is illuminating of what market economics meant in early eighteenth-century America. The free market described a set of social relationships, regarded as the antithesis of feudal hierarchy, which legislators and jurists did not assume as given, but set about deliberately to create, always in the shadow of the feudal counterpoint.

Creating Markets for Ecosystem Services: Notes from the Field, James Salzman

Created by the interactions of living organisms with their environment, ecosystem services support our society in many critical ways, from providing clean air and water, decomposing waste, and pollinating flowers, to regulating climate, and pacifying floodwaters. Interest in ecosystem service markets has recently exploded, with a cover article in The Economist just a few months ago. Scholarship in the field, though, is still quite young.

Despite their immense practical value, with rare exception, ecosystem services are neither prized by markets nor explicitly protected by the law. In recent years, an increasing number of initiatives around the world have sought to create markets for services, some dependent on government intervention and some created by entirely private ventures. These experiences have demonstrated that investing in natural capital rather than built capital can make both economic and policy sense. Informed by the author's recent experiences establishing a market for water quality in Australia, this Article fully explores the implications of an ecosystem services approach to environmental protection. The piece reviews the range of current payment schemes and identifies the key requirements for instrument design. Building off these insights, the piece then examines the fundamental policy challenge of payments for environmental improvements. Despite their poor reputation among policy analysts as wasteful or inefficient subsidies, payment schemes are found throughout environmental law and policy, both in the U.S. and abroad. This Article takes such payments seriously, demonstrating that they should be favored over the more traditional regulatory and tax-based approaches in far more settings than commonly assumed.

No-Fault Divorce and the Division of Marital Assets, Philip Curry

This paper examines the incentives that divorce laws concerning property division can have for divorce and investment in marital assets. In particular, it notes the spread of equal division of matrimonial property. Canada and 10 US states currently use a community rule, which divides matrimonial property equally with very few exceptions, while the rest of the US states employ common-law rules, which start with the presumption of equal division but can make changes based on such things as contributions to the asset. This paper examines whether the community rule could be efficiency enhancing relative to the common-law rule. The paper considers an environment in which spouses have multiple inputs, such as time and money, to a marital asset, but the choices a spouse makes with regards to one input, say time, is not observable to the courts. In such an environment, it is demonstrated that the community rule leads to efficient investment in the marital asset while the common-law rule does not. Further, sufficient conditions are found for which the community rule leads to a lower divorce rate than the common-law rule.

Accountability and Private Governments, Laura Langbein and Kim Spotswood-Bright

It is commonly believed that residential community associations (RCAs)-a.k.a. homeowners associations and condominium associations - enhance the value of residents' properties. If RCAs provide a level of services with benefits equal to or exceeded by residents' willingness to pay for them, then property values should remain constant or increase. But the organizations may not provide an efficient level of services because of inadequate oversight by community residents. Instead, RCAs may adopt policies that reflect the preferences of community activists who have higher demands for services than the mean or median resident. In the most likely type of inefficient RCA, an increment in expenses for services reduces property values because the marginal purchaser gets less benefit out of the services than their cost. In that case, the excessive fee will be negatively capitalized into property values.

Substituting Complements, Giuseppe Dari-Mattiacci and Francesco Parisi

The presence of multiple sellers in the provision of (non-substitutable) complementary goods leads to outcomes that are worse than those generated by a monopoly (with a vertically integrated production of complements), a problem known in the economic literature as complementary oligopoly and recently popularized in the legal literature as tragedy of the anticommons. We ask the following question: how many substitutes for each complement are necessary to render the presence of multiple sellers preferable to monopoly? Highlighting the asymmetries between Cournot (quantity) and Bertrand (price) competition and their dual models, we show that two substitutes per component are sufficient. Considering more complex cases of multi-complementarity, we ask the related question of how many complements need to be substitutable and offer comments on equilibrium prices and quantities under different scenarios.

'Not Much Less Necessary Than the Atmosphere They Breathed:' Salmon, Indian Treaties, and the Supreme Court - A Centennial Remembrance of United States v. Winans and Its Enduring
, Michael C. Blumm and James Brunberg

A century ago, the Supreme Court decided United States v. Winans, which upheld the Indian treaty right to cross private property to access traditional fishing grounds in the Columbia River. The Winans decision, a landmark in Indian treaty interpretation, protected critically important cultural and economic practices from white encroachment, a surprising result in an era committed to Indian assimilation and allotment. This article examines the case, its context, its participants, and its contributions to Indian natural resources law.

The dispute took place at Celilo Falls, the most important Indian fishing site in the Columbia Basin, although the government agents and attorneys viewed it as a test case, emblematic of the clash of cultures taking place throughout the Northwest at the end of the 19th century. In fact, the article considers in some depth two predecessor cases involving the same tract of land at issue in Winans and suggests that the Indian agents who pursued the case did so because they saw treaty fishing as an economic lifeline for Indians who had failed at agrarianism on-reservation.

The district court issued a confusing array of injunctions and opinions that ultimately culminated in dismissal of the case some eight years after it was filed. A direct appeal to the Supreme Court produced an opinion memorable almost as much for its poetic language as for its result. Justice Joseph McKenna, not otherwise known for his lyricism, wrote that fishing at Celilo Falls was not much less necessary to the Indians than the atmosphere they breathed and proceeded to rule that their treaty rights included the imposition of a servitude, a right in land over lands necessary to access their traditional fishing sites. In response to the lower court's conclusion that the treaty language recognizing a tribal right of taking fish in common with settlers meant only equality of treatment, McKenna averred that such a result was certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more.

The decision's lodestar status is not merely due to its language, however. It established the reserved rights doctrine, which holds that Indian treaties are not a grant of rights to the Indians but a grant of rights from them - a reservation of rights not granted. Over the last century, the reserved rights doctrine has been immensely important in recognizing tribal proprietary rights to natural resources and in recognizing tribal sovereignty. Winans also reaffirmed the rule that Indian treaties should be interpreted as the Indians, the weaker party, would have understood, and rejected claims that state ownership of the riverbed foreclosed federally created treaty rights. Both of these principles endure. Finally, the case recognized treaty fishing rights as property rights that would run against not only the federal government but also the state and private parties, a precedent that some recent lower court decisions seem to have overlooked.

October 14, 2005 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 13, 2005

Eminent Domain Reform Panel

I was just on Smart Talk, a public affairs show on WITF, our local PBS station here in beautiful Harrisburg, PA, for a panel discussion on Kelo and eminent domain reform.  The other guests were Dana Berliner of the Institute for Justice and Ed Troxell of the Pennsylvania State Association of Boroughs.  Surprisingly enough, we all agreed on many issues.  Dana and Ed predictably sparred a little bit over the inherent goodness of local government officials (e.g., whether eminent domain is used as a last resort), but Ed and his organization are in support of reasonable eminent domain reform so there wasn't anyone on the show arguing for local governments' ability to take homes and replace them with box stores.

Two of the more interesting issues that we discussed were raised by people who called into the show.  One asked about the potential for future government condemnation of conservation easements.  This seems like a real potential problem to me.  Dana raised the very good point that if you take away government power to engage in economic development takings, you take away a lot of the potential desire for governments to take the conservation easements.

The other issue raised by a caller was what to do when the government no longer uses taken property for a public use.  The example raised by the caller was land taken to protect a watershed twenty years ago that was recently sold to a developer who put houses on the property.  One possible solution to this problem is to have the property revert back to the original owner when the government ceases using it for a public use.  I'm not a big fan of reverter clauses because (a) I prefer to avoid future interests whenever possible; (b) if the reverter has too long a duration, finding the former owner (or successors) can be difficult; and (c) the owner already received compensation for the property.

If anyone has any thoughts on these issues, please leave a comment.  [As always, comments require approval before posting, so there may be a delay]

Ben Barros

October 13, 2005 in Law Reform, Takings | Permalink | Comments (0) | TrackBack (0)

Weeds as Nuisances

I recently took a look at Collins v. Barker, 668 N.W.2d 548 (S.D. 2003), which involved a private nuisance action for property damage sustained when weeds blew from defendant's property onto plaintiff's property.  The South Dakota Supreme Court repeated what appears to be the general rule that landowners do not have a duty to control the natural spread of weeds, so long as the spread was not aided by human conduct.  Thus, the spread of weeds from land left in its natural state would not be a nuisance, while the spread of weeds caused by human activity (such as the cultivation of land) would be a nuisance.

I suppose this rule makes sense for ordinary weeds -- property owners generally should not be liable for the ecosystem acting in a natural manner.  But what about invasive non-native species like kudzu?  I'd think that the spread of such species might be greatly curtailed if property owners were subject to private nuisance liability for the spread of the plant to a neighbor's land.

Anyone have any thoughts on this?

Ben Barros

October 13, 2005 in Land Use, Recent Cases | Permalink | Comments (3) | TrackBack (0)

Wednesday, October 12, 2005

SSRN, Reprints and Self-Promotion

Last week, Ethan Leib over at PrawfsBlawg asked whether in the age of SSRN it has become obsolete to send out reprints of finished articles.  From the comments to Ethan's post, it appeared that a consensus was forming that sending out reprints is a waste of time and effort.  I disagree.

The background point to this whole discussion is that new professors need to pay attention to promoting themselves and their writing.  It is not enough to write good stuff.  I think that new professors need to put their work in front of people who write in their area repeatedly and as often as possible (short of being completely obnoxious about it).  So I think that new profs should post on SSRN, e-mail drafts to people in their field, and send out reprints.  Some people pay a lot of attention to SSRN.  Some have no idea what it is.  Some hate having their e-mail inbox polluted.  Some hate having their snail mail inbox polluted.  You never know what method will be effective in getting your work in front of someone who will read it and maybe actually do something with it.

Someone (I think at the AALS new teacher's conference) once said that if you can't identify enough people to send out 200 reprints, you aren't being creative enough.  I agree.  Just after I was leaving practice and entering the academy, I sent out about 200 reprints of my article on The Police Power and the Takings Clause.  Most people ignored it, but Bob Dreher at the Georgetown Environmental Law & Policy Institute actually read it.  He also cited it in Hawaii's merits brief to the Supreme Court in Lingle v. Chevron.  If I hadn't sent the reprint to him, there is very little chance that he would have ever noticed the article.  So I think that sending out reprints are worth the time, cost and effort.

Ben Barros

October 12, 2005 in Teaching | Permalink | Comments (0) | TrackBack (0)

A Tale of Two Blight Statutes

Consider the following definition of blight from Pennsylvania's Urban Redevelopment Law:

35 Penn. Stat. § 1702:

It is hereby determined and declared as a matter of legislative finding--

(a) That there exist in urban communities in this Commonwealth areas which have become blighted because of the unsafe, unsanitary, inadequate or over-crowded condition of the dwellings therein, or because of inadequate planning of the area, or excessive land coverage by the buildings thereon, or the lack of proper light and air and open space, or because of the defective design and arrangement of the buildings thereon, or faulty street or lot layout, or economically or socially undesirable land uses.

. . .

Therefore, [blight clearance and related redevelopment activities] are declared to be public uses for which public money may be spent and private property may be acquired by the exercise of the power of eminent domain.

This definition of blight is absurdly overbroad.  It allows for eminent domain to be used to take property that falls into any one of the laundry list of conditions in paragraph (a).  Any of the categories in this list could be subject to abuse, but focus on the last one:  "economically or socially undesirable land uses."  Here is a translation of that language:  "Kelo-style economic development takings can be done in Pennsylvania under the guise of blight."  To add insult to injury, property owners are held to a high standard in challenging blight designations.

Now consider this definition of blight, from the same chapter of the Urban Redevelopment Law:

35 Penn. Stat. § 1712.1

(a) Notwithstanding any other provision of this act, any Redevelopment Authority shall have the power to acquire by purchase, gift, bequest, eminent domain or otherwise, any blighted property as defined in this section . . .

(c) Blighted property shall include:

(1) Any premises which because of physical condition or use is regarded as a public nuisance at common law or has been declared a public nuisance in accordance with the local housing, building, plumbing, fire and related codes.

(2) Any premises which because of physical condition, use or occupancy is considered an attractive nuisance to children, including but not limited to abandoned wells, shafts, basements, excavations, and unsafe fences or structures.

(3) Any dwelling which because it is dilapidated, unsanitary, unsafe, vermin-infested or lacking in the facilities and equipment required by the housing code of the municipality, has been designated by the department responsible for enforcement of the code as unfit for human habitation.

(4) Any structure which is a fire hazard, or is otherwise dangerous to the safety of persons or property.

(5) Any structure from which the utilities, plumbing, heating, sewerage or other facilities have been disconnected, destroyed, removed, or rendered ineffective so that the property is unfit for its intended use.

(6) Any vacant or unimproved lot or parcel of ground in a predominantly built-up-neighborhood, which by reason of neglect or lack of maintenance has become a place for accumulation of trash and debris, or a haven for rodents or other vermin.

(7) Any unoccupied property which has been tax delinquent for a period of two years prior to the effective date of this act, and those in the future having a two year tax delinquency.

(8) Any property which is vacant but not tax delinquent, which has not been rehabilitated within one year of the receipt of notice to rehabilitate from the appropriate code enforcement agency.

(9) Any abandoned property. A property shall be considered abandoned if:

(i) it is a vacant or unimproved lot or parcel of ground on which a municipal lien for the cost of demolition of any structure located on the property remains unpaid for a period of six months;

(ii) it is a vacant property or vacant or unimproved lot or parcel of ground on which the total of municipal liens on the property for tax or any other type of claim of the municipality are in excess of 150% of the fair market value of the property as established by the Board of Revisions of Taxes or other body with legal authority to determine the taxable value of the property; or

(iii) the property has been declared abandoned by the owner, including an estate that is in possession of the property.

Unlike Section 1702, Section 1712.1 is a serious and reasonable attempt to define property that is actually blighted.  The contrast between the two contains two related lessons for post-Kelo economic domain reform.  First, legislators considering reform must take a hard look at all of the definitions of blight in their state.  Second, definitions of blight like Section 1702 must systematically be replaced by narrower definitions like Section 1712.1.

Ben Barros

October 12, 2005 in Law Reform, Takings | Permalink | Comments (0) | TrackBack (1)

Tuesday, October 11, 2005

Property Book Proposals Wanted

From the Law Librarian Blog:

Robin Paul Malloy, the E.I. White Chair and Distinguished Professor of Law at the Syracuse University College of Law is actively seeking book proposals and manuscripts for books related to all areas of property law including those with a focus on culture, and the relationship between property and citizenship. Subject areas can cover a wide range in the property area. Proposals and manuscripts are needed for a book series on Property, Citizenship, and Social Entrepreneurism with Cambridge University Press, and for a series on Law, Property, and Society with Ashgate Publishing.

Please see for more information, and contact Professor Malloy to discuss proposals.

You do not have to be involved in the PCSE Working Group to have a book in either one of these series.

October 11, 2005 in Books | Permalink | Comments (0) | TrackBack (0)

Natural Resources and Property Theory

I'm teaching a property theory seminar this semester, and am putting the materials together as I go.  The general approach of the seminar is to apply property theory to some real-world property problems.  I have a two-class unit on property theory and natural resources.  The first day is some basic theory (Tragedy of the Commons, Demsetz) and some reading on fisheries issues.  The second day is open.  I'd like to include some material on water rights and maybe one other issue.  Can anyone suggest some additional reading on property theory in the natural resources context?  Could be a theoretical article, a case that presents a good theoretical issue, or anything else.  If you have any suggestions, please leave a comment or send me an e-mail.  Thanks.

Ben Barros

October 11, 2005 in Property Theory | Permalink | Comments (2) | TrackBack (0)

Monday, October 10, 2005

Justice O’Connor, Midkiff and Kelo: A Short Morality Play in Two Acts

UPDATE:  I've expanded the content of this post into an essay that is available here.

This summer, my research assistant Jackie Pfursich and I spent a great deal of time at the Library of Congress.  We were doing research in the files of past Supreme Court justices looking for material on the Court's major takings cases, especially the Justices' conference notes.  For those unfamiliar with the Court's inner workings, the Justices meet in conference to discuss and vote on cases.  Only the Justices (not clerks or anyone else) are present at the conference.  Many Justices take notes at the conference, and some of the Justices included their notes in their personal papers given to the Library of Congress or, in some cases, archives at other institutions.  The Justices' files also include memoranda circulated to the other members of the Court (often also called in the context "the conference") on cases.  Del Dickson's book The Supreme Court in Conference, 1940-1985 : The Private Discussions Behind Nearly 300 Supreme Court Decisions is an outstanding source for more detailed information about the conference and conference notes generally.

Conference notes have many limitations as sources for scholars.  They certainly are not anything close to stenographic notes of the Court's discussions.  They are handwritten, often shorthand and equally often cryptic.  Because they were typically written in pencil, and because some of the Justices weren't very compulsive about pencil sharpness, they can be hard to read.  They also can be misleading, and must be read with caution.

All of this said, the conference notes can provide valuable context and richness to our knowledge of Supreme Court cases.  The Court's written opinions are the only authoritative statements of its position on a particular case, but it can be helpful to know what the Justices were thinking about behind the scenes when deciding a case.  This additional information can be particularly valuable in murky areas of law like takings.  So, in this and subsequent posts, I will discuss some of the material that I've found in my research.  To the caveats noted above, I would add that my work on the conference notes on the takings cases is at an early stage.  If you want to quote or cite any of this discussion, e-mail me and I'll give you the most up-to-date version.

In light of the recent furor over Kelo v. New London, Justice O'Connor's opinion in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), seemed like a good place to start.  Midkiff was the Court's leading pre-Kelo statement on the meaning of "public use" in the eminent domain context.  The Court's thought-process in Midkiff is interesting because Justice O'Connor's opinion for a unanimous Court articulates a broad conception of public use that O'Connor later came to regret in Kelo.

Midkiff involved a challenge to a very unusual law enacted in response to a very unusual set of circumstances.  For several historical reasons, land ownership in Hawaii was unusually concentrated.  On Oahu, for example, 22 landowners owned 72.5% of the fee simple titles.  Many of these landowners were hesitant to sell parcels of their property because of potentially large federal tax liabilities.  The result was that most people leased, rather than owned, their homes.  The Hawaii Legislature therefore enacted the Land Reform Act of 1967, which set up a process for using eminent domain to take the fee simple ownership of a single-family home and transfer it to the tenant living in the home.

Midkiff therefore presented a very clear public use issue:  the State of Hawaii was using eminent domain to transfer single-family homes from one private party (the landlord) to another private party (the tenant).  In the opinion appealed to the Court, The Ninth Circuit had held that the Act did not constitute a valid public use, and instead was "a naked attempt on the part of the state of Hawaii to take the private property of A and transfer it to B solely for B's private use and benefit."

One preliminary issue discussed by the Court in conference was whether to abstain and let the state courts decide the issue of public use.  Interestingly, Justice O'Connor appears to be the only Justice to have advocated for abstention in the conference.  Justice Blackmun's notes of the conference have Justice O'Connor saying that she "liked abstention and let state courts develop the public purpose," a sentiment certainly at odds with her later position in Kelo.  (Justice Brennan's notes for Justice O'Connor simply state "Favor abstention, will reverse").

On the merits, the Justices seemed to be in agreement that the Act met the "public use" requirement and fell within the scope of the Court's prior precedents, especially Berman v. Parker, a 1954 blight-clearance case that articulated a broad conception of public use.  The Chief Justice referred to the "precedent in slum clearance cases," and the "great mkt control" exercised by the property owners in Midkiff.  Justice Brennan referred to "Berman et al" and Justice Blackmun noted that "On merits, [there has been] no case yet where we've held a taking was not for public use." 

Justice Rehnquist, a later dissenter in Kelo, observed that "can be done narrowly but this is open and shut case; at best very narrow review of what is public purpose" [Brennan notes] "can be done [illeg.] narrowly but case is not close; stay within Berman." [Blackmun notes] The idea that this was a narrow case was also raised by Justice Powell, who said that the case "has to be treated as unique situation it is -- its history etc." [Brennan notes] "a special case, but to be carefully written" [Blackmun notes].

Despite these comments that the Midkiff opinion could be written narrowly, Justice O'Connor's opinion of the Court contained very broad language about the scope of allowable public use as being "coterminous with the scope of a sovereign's police powers."  The opinion contained similar language about deference to the legislature, noting that "where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause," and that "Judicial deference is required because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power."  Indeed, the breadth of the opinion caused Justice Blackmun's clerk to note in a memo "I am a bit surprised at the breadth of the opinion since SOC's comments at Conference indicated that she wanted a narrow opinion."  This remark that Justice O'Connor wanted a narrow opinion is not reflected in the conference notes.  It may be that she had made such a remark, but that the remark was not reflected in the notes, or that the clerk was attributing to Justice O'Connor the sentiments raised by Justices Powell and Rehnquist.

Justice O'Connor came to regret the broad language of Midkiff, noting in her Kelo dissent that "There is a sense in which this troubling result follows from errant language in Berman and Midkiff. .  . . [W]e said in Midkiff that '[t]he "public use" requirement is coterminous with the scope of a sovereign's police powers.'  This language was unnecessary to the specific holdings of those decisions."  I will address the rest of Justice O'Connor's dissent in a future post, but this particular statement rings very true.  The broad concepts articulated in Berman, and strongly reinforced in Midkiff, arguably mandated the result in Kelo.  Had Midkiff in fact been decided in a narrow fashion based on its unique facts (among other things, unlike most exercises of eminent domain, it did not displace the people in possession of the homes being taken), Kelo may have come out differently.  Or it may have come out as it did, but Justice O'Connor's dissent wouldn't have been weakened by the need to eat her own words.

Midkiff therefore contains a moral that the Justices and their clerks would do well to heed -- the full consequences of grand statements of principle are rarely clear when articulated.  They therefore should be used with great caution, because they might come back to bite you.

As an aside, the Midkiff files also include one exchange that might be of more interest to scholars of abortion politics than to takings scholars.  As the formal votes of the Justices were filtering in in the case, Justice Blackmun wrote a memo to Justice O'Connor, asking "if I may raise a point of personal privilege.  I shall be in Honolulu May 20-22.  Do you think the decision in [Midkiff] could be withheld until after the 22nd?  I run into enough flak as it is these days, and I think it would be better if I were out of the State by the time the decision comes down."  Justice O'Connor replied that "I will be more than happy to get you safely back on the Mainland before lowering the boom by announcement of this decision."

[UPDATE:  Two clarifications.  First, my colleague Michael Dimino raised a very good question about whether Midkiff in fact could have been decided on more narrow grounds.  I'm not so sure that it could have, and as Michael noted, any time the Justices start talking about a case being very narrow it is worth looking hard for the Constitutional principle they are about to break.  Second, to clarify the significance of the aside for those of you who don't follow the issue, Justice Blackmun got a lot of flak for Roe v. Wade.]

[Comments are open; as always, they require approval before they come up, so there might be some delay].

Ben Barros

October 10, 2005 in Takings | Permalink | Comments (6) | TrackBack (2)