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Thursday, May 11, 2006

Paulsen and the West Wing

Thanks to Kurt Paulsen for the post immediately below on Takings and the West Wing.  Regular readers will remember Kurt from last year's sprawl fest.

Ben Barros

May 11, 2006 in About This Blog | Permalink | TrackBack (0)

The West Wing, The Takings Clause and Tom Merrill

[An UPDATE to this post is available here]

What is the ultimate honor for a law professor?  Publishing in Harvard or Yale Law Review? Having your article cited in a SCOTUS decision? 

Nah. Its being mentioned on the West Wing.  Astute watchers of the show may recall in season 5, during a constitutional crisis regarding Presidential succession, that Yale Prof Akhil Amar was mentioned.

On Sunday’s episode, former White House Communications Director Toby Ziegler, in talking to Chief of Staff C.J. Cregg, claims to have discovered a typo in the Constitution in the Takings Clause – specifically a missing comma.  He says the National Archives can’t explain whether it is a comma or a smudge.  Toby then indicates he has put in a call to Tom Merrill.  Paul Boudreaux had some thoughts on this earlier in the week at the Land Use Law Profs Blog.

Tom Merrill, of course, is a noted Takings Clause expert at Columbia Law School. 

The reference to the Takings Clause, a missing comma and Tom Merrill is either too cute by half or an indication that some script writer is really paying attention. 

In his September 20, 2005 testimony before the Senate Judiciary Committee regarding the Kelo v. New London decision, Prof. Merrill repeats his somewhat unique interpretation of the Takings Clause – an interpretation which could be said to rest on a “missing comma.”

In relevant part, discussing the myths of Kelo, Prof. Merrill argues:  “Myth Four: The original understanding of the Takings Clause limits the use of eminent domain to cases of government ownership or public access … Unfortunately, other than the language of the Takings Clause itself (“nor shall private property be taken for public use without just compensation”), there is virtually no direct evidence about what the Framers understood by the words “for public use.” The phrase modifies “taken,” and thus clearly establishes that the Takings Clause is about a subset of takings – those for public use as opposed to other possible types of takings. But this narrowing language does not necessarily mean that the Clause imposes an affirmative requirement that a taking must be for a “public use.” It is also possible that the Framers were simply describing the type of taking for which just compensation must be given – a taking of property by eminent domain as opposed to some other type of taking, such as a taking by tort or taxation.”

This testimony is almost identical to Prof. Merrill’s Amicus brief on behalf of the American Planning Association (at p. 4.).  In his Amicus, Prof. Merrill acknowledges that his “only a subset of takings” is not accepted as a general interpretation: “Nevertheless, “for public use” has been read throughout our history as imposing an implied limitation on the exercise of eminent domain – that it can be used only for public and not private uses – and this Court has accepted this interpretation. Brown v. Legal Found. of Washington, 538 U.S. 216, 231-32 (2003); Thompson v. Consol. Gas Utils. Corp., 300 U.S. 55, 80 (1937).” (Amicus brief  at p.4)

So perhaps the writers of the West Wing episode read and understand Prof. Merrill’s position and so wrote him into the show.  One could read Prof. Merrill’s position as “the case of the missing comma.”  Certainly, arguments made from the peculiar (to modern sensibilities) grammatical structure of the Constitution are nothing new.  Modern readers frequently find the usage of commas – or the lack thereof – to be quite strange. 

Where is Toby Ziegler’s “missing comma” under a Merrill-type theory?  It probably should be the lack of 2 commas surrounding “for public use.”   In official versions of the constitution, the Takings Clause reads: “nor shall private property be taken for public use without just compensation.”  No commas in the original.  With the supposed “missing commas” it would read: “nor shall private property be taken, for public use, without just compensation.” 

Can we read Prof. Merrill’s argument as saying that since the original does not include the two commas around “for public use” that “for public use” does not constitute a separate constraint on the government’s eminent domain power?

Kurt Paulsen

[Comments are held for approval, so there will be some delay in postion]

May 11, 2006 in Takings | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 10, 2006

Teaching Land Use and Takings In First Year Property

Several times this spring I was struck by the thought that my students would get a lot more out of the land use and takings material that I cover in first year property if they had already taken constitutional law.  I noticed myself spending a lot of time explaining the strict/intermediate/rational basis levels of scrutiny (e.g., in discussing Belle Terre v. Boraas), which would be second nature to anyone who has taken con law.  I don't think that a student can really appreciate Euclid without having a decent grounding in economic substantive due process.  Ladue v. Gilleo is a first amendment case that among other things raises the distinction between commercial and political speech.  Mount Laurel is based on state constitutional law, but discussion of the case would be richer if the students had read the Supreme Court's major equal protection cases.  Indeed, almost every issue in zoning law, from unconstitutional delegation of legislative power in special exception cases to amortization issues presented by pre-existing nonconforming uses, is a con law issue.  Takings, of course, is entirely a con law issue.

This got me to thinking about moving this part of property to an upper-level required course that would be offered after con law.  But then I started wondering why this material should be required at all, rather than be left to an upper-level elective land use class.  Land use and takings issues are incredibly fun to teach, but this in itself doesn't seem like a good reason to include the material in first-year property.  So why should we include land use and takings in the first year property curriculum?

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

May 10, 2006 in Land Use, Takings, Teaching | Permalink | Comments (5) | TrackBack (1)

Tuesday, May 9, 2006

Blood and Roses

This week's New York Times Book Review has a piece by Megan Marshall on Helen Castor's new book Blood and Roses.  The book, based on 15th century documents known as the Paston letters, looks fascinating.  Here's an excerpt from the review highlighting the parts that would be of interest to property profs:

[Castor] begins by describing a "post-plague world" in which England's population was so drastically reduced by the Black Death that class boundaries broke down in the face of a major land grab, barely held in check by an already Dickensian legal system. A "parvenu gentry" emerged, made up of men like William Paston, who trained as a lawyer and used his skills to acquire an impressive fortune.

This all might sound tame, but property ownership in 15th-century England entailed risks we can hardly imagine today. Another man angling for the same estate, which generally came with income in rent from tenant farmers, could lob a flimsy title claim into court, then gather a small army of supporters and wrest the property from a rightful owner, holding the place for years as the wheels of justice ineffectually spun. Time and again this happened to the Pastons, and Castor's accounts of these skirmishes are as entertaining as a chapter from "Middlemarch" — with bloodshed.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

May 9, 2006 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, May 8, 2006

Yau on Compensating Sources of Body Parts

Jo-Anne Yau has posted Stealing What's Free: Exploring Compensation to Body Parts Sources for Their Contribution to Profitable Biomedical Research on the BePress Legal Repository.  Here is the abstract:

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as a result of his contribution. This article will address the subtle movements in the law toward Source compensation and the Constitutional soundness of this practice.

Furthermore, public policy discussions, ethical implications, and comparisons with other socially embraced practices will highlight variations on Source compensation are already prevalent in society, and demonstrate that the concept is not so foreign after all.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

May 8, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)