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Friday, March 31, 2006

Petition for Appeal in Takings/Establishment Clause Case

In early February, I posted on an interesting Pennsylvania case involving the constitutionality of taking blighted property to give to a religious institution.  Pennsylvania's intermediate appellate court held that the taking violated the establishment clause.  The Redevelopment Authority of Philadelphia has now filed a petition seeking review by the Pennsylvania Supreme Court.

Ben Barros

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March 31, 2006 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, March 30, 2006

Why Singling Out Should Have No Role in the Regulatory Takings Analysis

One of the central points in my recent essay on Lingle v. Chevron is that post-Lingle the character of the governmental act at issue should have no relevance to the regulatory takings inquiry:

More broadly, the analysis in Lingle illustrates why the character of the government act generally should have no role in the takings analysis.  Penn Central described the character of the government act as being relevant to the takings analysis, noting that “A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.”   This, of course, is an uncontroversial statement as made:  physical invasions are now seen as per se takings, where most regulatory actions are not.   Similarly, government actions that can be characterized as abatements of common-law nuisances are per se not takings.   Beyond these relatively narrow circumstances, however, the character of the government act should have no role in the takings analysis whatsoever.

As Lingle explained, the focus of the takings analysis is on whether the government act takes property, not on whether the government has a good or bad reason for its action.  Understanding that the character of the government act in the later sense – whether the government is acting for a really important reason as opposed to a really silly reason – is a substantive due process question, not a takings question, further helps clarify existing takings precedent.  Indeed, this understanding requires the effective deletion of eight pages from the U.S. Reports of Justice Stevens’ opinion Keystone Bituminous Coal Association v. DeBenedictis,  where the Court held that the government act was not a taking in part because it furthered a really important public purpose.   Justice Stevens’ analysis is rife with citation to Euclid and Goldblatt,  and post-Lingle it is clear that takings law presumes that the government is not affecting property for a really silly reason.

In my initial draft, I had used "half-assed" rather than "really-silly", but allowed the editors to talk me into being a bit more polite.  In any event, this point is tied to the broader holding in Lingle -- which is entirely correct in my view -- that the regulatory takings inquiry should focus on whether the government act takes private property.  Imagine that -- a takings clause test that is concerned with whether something is taken.

As I note in footnote 56 of the essay, however,

The Court’s opinion in Lingle regrettably preserved the suggestion from prior caselaw that a taking is more likely to be found to be a taking if the government act singles-out a relatively small number of property owners.  Because the focus of the regulatory takings analysis is on the impact of the government act on the property owner (or, put simply, whether the government through regulation effectively has taken property), it should not matter one bit whether the government has taken property for a good or bad reason, or whether the government has taken property from many owners or few.  Rather, if property has been taken, then what should matter is whether compensation has been paid or not.  If a local municipality took 90% of its residents’ property through an explicit exercise of eminent domain, compensation clearly would be due.  The result should not be different if the local municipality effectively took 90% of its residents’ property through regulation.  It may be that in the case of a broadly-applicable regulation, property owners are more likely to benefit from the restrictions placed on their neighbors.  But in many circumstances, the affected property owner will not obtain a proportional benefit from the regulation.

Indeed, the fallacy of the argument that a broadly applicable regulation will benefit the affected property owner is well illustrated by the Michigan Court of Appeals’ analysis in the recent K & K Const., Inc. v. Dep’t of Environ. Equality, 2005 WL 1753805 (Michigan Ct. of Appeal 2005).  K & K involved a property owner’s challenge to Michigan’s wetland regulations.  In rejecting that challenge, the court made the following unsupported assertion:  “All property owners in this state share these benefits relatively equally, and all property owners, and, importantly, all prospective owners, are relatively equally subject to the burdens placed on much of the property in this state by the wetlands regulations.” Id. at *15; see also R & Y, Inc. v. Anchorage, 34 P.3d 289, 298 (Alaska 2001) (rejecting a challenge to a wetlands regulation “which applies broadly to all landowners and which benefits both the public generally and the landowners in particular”).  This assertion is complete bunk.  The regulations certainly create a public benefit to the environment, but the burden is not shared equally by all property owners.  Rather, the burden is imposed only on property owners who have wetlands.  These property owners bear all of the burdens of the regulation while obtaining only a fraction of the public benefit.

In any event, if a regulatory impact is so severe that it actually constitutes the equivalent of a physical expropriation, the owners are not going to be in a position to benefit from such an average reciprocity of advantage.  Political process theorists would argue that singling-out makes it more likely that a process failure has occurred.  But any time the government takes property (through regulation or otherwise) without compensation, the political process has failed.  The Just Compensation Clause provides a remedy for such process failures, and compensation should be due regardless how narrowly or broadly the government focused its action.

This last point builds on an argument I made in this article at pages 515-17 as part of a discussion of Bill Treanor's process-oriented view of the takings clause.  While I agree that the framers generally and Madison in particular were concerned about process failure,

the text of the Just Compensation Clause makes it clear that it is not a process-oriented provision.  Unlike a provision directed at avoiding process failures detrimental to property owners--for example, a property qualification for voters--the Just Compensation Clause simply provides a remedy for the victim of the process failure.  The text requires compensation for every taking of property, and does not require an examination of the political process that led to the taking.  As Treanor himself notes: "[T]he original understanding did not involve making the individuals who were likely to suffer process failure better off than those protected by the political process.  Rather, the Takings Clause was intended to put everyone who suffered the same injury on the same footing: Everyone whose property was physically taken received compensation."  The Just Compensation Clause, then, is not concerned with how or why the process failure occurred.  Instead, it is concerned with the impact a government action has on the property owner.  If the impact is sufficiently severe (which necessarily could only result from a process failure), then compensation is due.

Ben Barros

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March 30, 2006 in Takings | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 29, 2006

Who Owns (and will profit from) Native Culture?

I'll be participating in a conference at the University of North Carolina on Thursday (and traveling much of the weekend), so I'm going to be pretty quiet until next week.  Plus, it looks like everyone's going to consumed for the next few days thinking about the new US News rankings.

Because the conference is on reparations, I thought I'd leave off with a post on a related topic:
One question that people are increasingly asking these days is: how can native people receive compensation for the products of their culture?  In the words of Williams College Professor Michael Brown's important 2003 book, Who Owns Native Culture?  These questions come up in all sorts of places: Keith Aoki's written a lot about native rights to property--like seeds.  Madhavi Sunder has the latest contribution to theorizing why traditional communities deserve compensation for preserving traditional knowledge here.  And in Hawaii this is increasingly a topic of much concern because of local products, like the sacred taro plant, are being genetically engineered and appropriated for use by non-Hawaiians.  And the preservation of sacred places is a topic that we're hearing a lot about in Hawaii.  As we discussed earlier this week, there is also increasing talk of preservation of access to cemeteries on the mainland.

I thought again about this problem recently when I visited the Honolulu Academy of the Arts.  They have a fabulous--and I do mean fabulous--exhibit of treasures taken by Captain Cook's crew back to Great Britain. It's called Life in the Pacific of the 1700s: The Cook/Forster Collection of the Georg August University of Göttingen.  The treasures found their way into Germany–-and so they’re now on loan from several German museums. The exhibit is absolutely fascinating; I highly recommend it.  There are clothes, including a stunning mourning dress and simple but beautiful and elegant garb.  There are also fish hooks of all sizes, mats, an extensive fish net, and weapons.  Notable by their absence are religious objects.

One of the many things that struck me was how beautiful the clothes are.  Let's face it: they're destined for Seventh Avenue in New York City.  Check out the Honolulu Academy of Arts website to see a picture a heva, a Tahitian full-length mourning dress with headdress.  The picture, which is stunning, just doesn't do it justice.  Most of the other clothes in the exhibit are quite simple; often made out of organic materials (like coconuts).   And I think they'll be a huge hit in the marketplace.  Now, we just need to figure out a way to insure that the descendants of the people who created this work receive some compensation....  One way for that to happen is for clothes designers in Hawaii and elsewhere in the Pacific to get busy.

Special thanks to my colleague Carl Christensen, who told me some things about the exhibit that I didn't know.

Alfred L. Brophy

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March 29, 2006 in Intellectual Property | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 28, 2006

More on Cemeteries: The Conflict Between Memory and Development

Utzmcknight Lest you think my post on cemetery access was emphasizing an unimportant right, my colleague Justin Levinson points out that yesterday's Washington Post has an article, “More Family Cemeteries Dying Away in the South,” on the conflict between preserving family cemeteries and development in Tennessee.  As the article points out, there's frequently a conflict in the south:

In Tennessee, as in other Southern states, farm families in centuries past tended to bury their dead on their own land, allowing for quick interment and easy oversight of graves. . . .
Over the years, many families dispersed, undergrowth overtook the headstones and deeds changed hands. Some cemeteries -- particularly those where black families buried their kin -- used fieldstones as markers and are difficult to spot. . . .

Richard Binkley, who's building the subdivision, said he feels responsible for the dead on the property, but is torn about what to do. He bought and sold another property that had graves on it, and said he thinks his own family's cemetery was damaged by a careless developer.

"It's hard to buy a piece of property now that's on the outskirts of town that doesn't have a grave on it of some kind," he said. "It's come down to the point now where we're running out of space."

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March 28, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

UMKC Looking For Property Visitor

The University of Missouri - Kansas City School of Law is looking for visitor to teach Property and Estates and Trusts in the Fall 2006 semester.  It will consider a person to teach Property and Estates and Trusts in the Fall semester, or to teach two sections of Property.  If this person is available and interested, we may make the visit a full year with the visitor teaching Property II and another course to be determined in the Spring.  Interested parties should contact Associate Dean Jeff Thomas at 816 235 2378.

Ben Barros

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March 28, 2006 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Barros on Lingle

I've posted the final version of my short essay At Last, Some Clarity:  The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69 Albany L. Rev. 343, on SSRN.  Here's the abstract:

This short essay discusses the Supreme Court's recent decision in Lingle v. Chevron and its potential long-term impact on the Court's regulatory takings doctrine. Lingle involved a narrow (though important) issue of takings law, and on the surface it appears to be a relatively modest case. A deeper look, however, reveals that in its separation of substantive due process and regulatory takings, Lingle has tremendous potential to clarify regulatory takings doctrine. If this potential is fulfilled, Lingle is likely to be far more significant in the long term than Kelo v. City of New London, which has dominated the commentary about the Court's recent takings decisions. Lingle may also have the counter-intuitive effect of helping property-rights advocates (who were the putative losers in the case) by undercutting the precedential value of cases that help the government in takings battles.

Ben Barros

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March 28, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Strawberry Fields . . . Forever?

Rapidredstrawberryfields In the spirit of the philosophy of the Beatles--a lovely and amusing read (which I found out about through Brian Leiter)--I wondered what Beatles lyrics might relate to property.  Well, how 'bout Strawberry Fields Forever?  That led me to wonder whether one might have an equitable servitude to maintain a strawberry field . . . forever?  Let's see: notice, intent, and (even though it's an affirmative covenant), the burden pretty clearly touches and concerns the land.  The benefit might be in gross, though--I'd like to know a little bit more about who's asking for the strawberry field.  For the sake of simplifying things, let's assume that one neighbor promises for the benefit of another to maintain the field.  Unlimited duration, though?  Hmm.  Now, that might make it an unreasonable restraint on alienation.  Restatement Third § 7.12 says (in principle) that affirmative covenants of unspecified duration terminate after a reasonable times.  Maybe, though, you could have neighboring owners promise to keep strawberry fields forever for each others' benefit, § 7.12(2)....

Strawberryfieldsnyc And then, of course, there's the issue of interpretation.  What constitutes a "strawberry field"?  It sort of calls to mind a field of strawberries.  But then I think of Central Park's Strawberry Field, which is across the street from the Dakota, where Lenon was living at the time of his death.  Don't think there are many strawberries planted there; it's a garden.

Ah, really would make an amusing short question on a property final one of these days....

As to property in other songs, rentals appear in a few places in Beatles songs--"When I'm Sixty-Four" and "Lady Madona."  I'll leave to Paul Caron or my colleague Susan Hamill an entry on the Beatles' "Taxman.'"

March 28, 2006 in Land Use | Permalink | Comments (2) | TrackBack (0)

Monday, March 27, 2006

Grave Matters: Accessing Cemeteries on Private Property

Mountauburncemetery We hear about rights of access to private property every now and then, such as leafleting on private property and union organizers speaking to workers on employers' property.  But generally we think that a central right of property is the right to exclude.  So here's a right you likely haven't heard about: those who are related to people buried on private property have an implied easement in gross to visit that property.  It's protected by statute in about a quarter of (largely southern) states. 

This is a pretty strange right, don't you think?  Where did it come from?  There are cases going back well into the nineteenth century that support the right of relatives (more on this shortly) to visit cemeteries on private property.  In a lot of ways, it's a typical implied reservation of an easement.  The idea here is that when the landowner permitted burial on the property, she implied granted the right to family members to visit the grave.  This can be supported, I think, on a theory of easement by estoppel as well.  Then, when the original owner sold the property she impliedly reserved a grant in favor of the family members to visit the cemetery.  (In many cases, the landowner is also a relative; so in those cases, I think the case for an implied easement is a little more direct; at the time the landowner/relative sold, she impliedly reserved for herself and other relatives the right of access.)

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March 27, 2006 | Permalink | Comments (18) | TrackBack (3)

Kolber on Colavito

Over at PrawfsBlawg, Adam Kolber has some thoughts about Colavito v. New York Organ Donor Network, a recent Second Circuit organ donation case.  I briefly summarized the opinion here.

Ben Barros

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March 27, 2006 in Property Theory | Permalink | Comments (1) | TrackBack (0)