Thursday, April 5, 2007

Baron on Kelo and Lingle

Jane Baron (Temple University School of Law) has posted Winding Toward the Heart of the Takings Muddle: Kelo, Lingle, and Public Discourse About Private Property on SSRN.  Here's the abstract:

People care about property. In 2005, the United States Supreme Court decided two cases with deep connections to that concern, Kelo v. City of New London and Lingle v. Chevron U.S.A. Inc. This symposium Article argues that the significance of Kelo and of Lingle lies less in what these two cases actually decided than in the extent to which the cases engage, or fail to engage, cultural debates over the function of property in contemporary society. As is developed in Part I, the widely-publicized facts of Kelo raised emotionally and politically charged issues implicating the state's role as a guardian of private property rights. Notwithstanding its controversial political implications, however, Kelo turned out to be a fairly easy legal case from a technical standpoint for, in the majority's view, two hundred years of precedent established law unfavorable to the plaintiffs' claims. By focusing on this law and failing to address directly citizens' expectations about the extent to which the Constitution should protect property rights, the Court evaded involvement in ongoing public dialogue about property and government. For this, it will not be soon forgiven.

Part II argues that the Court was far more effective in Lingle than it was in Kelo in engaging directly with public unease about the relationship between government and private property. Lingle returned takings law to its central question, that of the distribution of the burdens of regulatory interventions. By suggesting that sometimes landowners might be disproportionately burdened by otherwise lawful regulation, the Court acknowledged that takings cases send a message about who matters - and whose property matters - when the government seeks to promote what it regards as the public good. In returning takings jurisprudence to its heart in “fairness and justice,” without attempting to set forth a definitive “test” for determining what is fair and just, the Court left open the possibility of a conversation between it and the public about what the Takings Clause will mean in the future. Since the public cares about property, this is an important conversation to enable.

Part III describes the implications of Kelo and Lingle. In likely further litigation testing the scope of local governmental power over property uses, courts will need to confront squarely one influential public understanding of property rights, an understanding that envisions property as a domain of freedom - freedom to act as owners choose, freedom from regulations limiting owners' liberty to so act. While academics have challenged this vision for some time, there is no doubting its rhetorical power or political popularity. What happens next in the takings arena will depend a great deal on the success with which both courts and local legislative bodies engage this understanding of the role of property in American constitutional culture.

Ben Barros

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