Saturday, February 17, 2007

another reason for the public reaction to Kelo

After reading (OK, skimming) the Nadler/Diamond article on public reaction to Kelo, it occurred to me that one factor that might have increased public outrage was misleading press coverage of the decision.

For example, an article in the Economist (available at 2006 WLNR 20520851) wrote:

Since property rights are one of the foundations on which America's immense prosperity is built, it seems odd to undermine them. The framers of the constitution understood this well. True, the fifth amendment allows the government to take private property, but only for public use and so long as just compensation is paid. Public use has long been understood to mean what it says: a road, a public school or the like. Few would dispute that the state needs a tool (known as the power of eminent domain, or outside America as compulsory purchase) to prevent a lone homeowner from blocking an interstate highway.

But in June last year the Supreme Court expanded the definition of public use. In the case of Kelo v New London, it ruled, by five votes to four, that the state may seize private property on behalf of private developers, so long as this serves some broadly defined public purpose, such as increasing the flow of taxes into public coffers. In other words, any local government may evict any citizen to make way for someone richer. The four dissenting justices knew this might be a tad controversial. "The spectre of condemnation hangs over all property," fumed Sandra Day O'Connor. "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The article's statements that the 
"Public use has long been understood to mean what it says: a road, a public school or the like" and that the Court "expanded the meaning of public use" are flat-out wrong .  In fact, for decades the Court has understood "public use" to mean "public purpose", no matter how much libertarians may dislike this view.  And the article's invocation of the founders in the first paragraph is meant to inflame the reader's emotions by pitting the Founding Fathers against the Framers against the current Court.

And this festering hunk of dishonesty occurred in the Economist (a fairly high-toned publication) several months after the decision (which means the author and editors actually had time to do research!). 

If this sort of misinformation is what came out in the Economist, I suspect that less elite sources of information were even more careless.

Michael Lewyn

February 17, 2007 in Land Use | Permalink | Comments (2) | TrackBack (0)

Friday, February 16, 2007

Ryan on Palazzolo, the Public Trust, and Reasonable Expectations

Erin Ryan (William & Mary) has posted Palazzolo, the Public Trust, and the Property Owner's Reasonable Expectations: Takings and the South Carolina Marsh Island Bridge Debate on SSRN.  Here's the abstract:

South Carolina recently promulgated new guidelines regulating the State's consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina's formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the aftermath of a key Supreme Court takings decision, Palazzolo v. Rhode Island, in which the public trust doctrine made a late-breaking appearance on remand.

After exploring the takings-related anxiety embedded in the South Carolina bridge controversy, this essay reviews the Palazzolo saga through its ultimate disposition on remand, and analyzes its significance not only for the marsh island bridge debate but for the broader array of land use controversies that involve wetlands, tidelands, and other submerged lands. Rhode Island's successful reliance on the public trust doctrine in defending the Palazzolo claim on remand – bolstered by a related analysis in McQueen v. South Carolina Coastal Council – suggests that regulatory takings claims brought by disappointed bridge permit seekers are unlikely to succeed. Both decisions hold that the public trust doctrine forms part of the background principles of state law that inform private property owners' reasonable expectations about the potential uses of submerged lands. Because the property owner's "reasonable expectations" about development prospects are a central consideration in the legal analysis of a regulatory takings claim, recognition that the public trust doctrine limits their formation regarding submerged lands strengthens the position of the state in this and many other land use controversies that pit environmental protection of wetlands and tidelands against opposing private property interests.

Ben Barros

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February 16, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 14, 2007

Stetson Looking For Property Visitor

Stetson is seeking a Visiting Professor (not a look-see position) to teach the basic Property course during 2007/08.  Contact Professor Janice McClendon, Co-Chair of the Appointments Screening Committee at  If interested, contact her ASAP -- this position needs to be filled before March 15.

Ben Barros

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February 14, 2007 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Monday, February 12, 2007

Nicole Garnett at the VC

Nicole Garnett is guest-blogging this week at the Volokh Consipiracy about the political economy of eminent domain.  Today's post is on the issue of undercompensation.

UPDATE 2/13:  The next post in the series is Takers Try To Minimize Cost By Not Taking High-Value Properties.  Ilya Somin comments here.

UPDATE 2/14:  Today's post is Replacement Value, Not Market Value.

Ben Barros

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February 12, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Carpenter on Allotment

Kristen A. Carpenter (University of Denver) has posted Contextualizing the Losses of Allotment Through Literature on SSRN.  Here's the abstract:

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th- early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into mainstream society, allotment was devastating for Indian people who suffered incredible losses of land, economic livelihood, culture, and everything else that mattered. But the Supreme Court's caselaw on allotment might make you think otherwise. Indeed Lone Wolf v. Hitchcock (1903) characterizes allotment as a policy that simply changed the manner in which tribes owned their real property and did not cause any losses at all.

There are, of course, many ways to develop a fuller legal picture of the losses tribal people suffered during allotment, including historical and empirical research. But this article argues that fiction also has something to offer. Accordingly it argues that two novels by the Turtle Mountain Chippewa author Louise Erdrich can serve to contextualize the losses suffered by Indian people during allotment. While tribal people clearly lost a lot of land, Erdrich helps us understand how allotment brought about losses in socio-economic, familial, spiritual, and other realms of tribal life. And even though she is writing about fictional Ojibwe people and not the real Kiowa and Comanches involved in Lone Wolf, Erdrich raises important, relevant questions about allotment. Inspiring lawyers to contemplate these questions—completely ignored by Lone Wolf—can enhance both understanding of the case and contemporary advocacy to redress the losses of allotment today.

Ben Barros

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February 12, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

More on Wilderness to Property

Marc Roark has some new posts up in his series From Wilderness to Property.  Check 'em out.

Ben Barros

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February 12, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)