PropertyProf Blog

Mike Campbell's Farm in the Context of Land Reform in Zimbabwe

A couple weeks ago, the South Africa Supreme Court issued a landmark ruling in a case involving Mugabe’s controversial land reform program in Zimbabwe. The Court ruled that a white Zimbabwean farmer (Mike Campbell) who has been dispossessed by the government could take possession of government property as compensation.  The case and the context of the farmer’s dispossession offer particularly troubling illustrations of how the postcolonial dilemma regarding land reform has unfolded in Zimbabwe.

Zimbabwe and the Dilemma of Postcolonial Land Reform, briefly

While many postcolonial states (for example, South Africa and India) struggled during the early years of their independence with how to enact land reform and simultaneously recognize a right to property (in a context of concentrated elite landholdings), Zimbabwe’s experience with land reform has been particularly inequitable and violent. 

Unlike many other postcolonial states, the newly independent government of Zimbabwe had its hands tied when it came to distributing land to the large numbers of landless citizens. As a condition of independence in 1980, Zimbabwean leaders agreed to protect the large arable tracts of land held by
white landowners for ten years under the Lancaster House Agreement with Britain.  After the ten-year period, the Zimbabwe government could compulsory acquire this land by providing compensation. (Britain agreed to provide some of the government compensation for both the voluntary sales during the first ten years and the compulsory acquisition afterwards.)

Unfortunately, when land reform was possible in the 1990s, the government took action very slowly, and often acquired land that was not ideal for farming. Then, in the early 2000s, the Mugabe government began to encourage violence and land invasions for personal gain through a change in law that allowed for “fast-track land redistribution”: 

“To appease the landless masses and maintain political popularity, Mugabe's government officially encouraged veterans to occupy white-owned farms. In some instances, members of the army helped facilitate land grabs and police were told not to respond to landowners' complaints or to remove squatters. As a result of the land grabs, many white farmers and their black workers were killed or subjected to violent attacks.”  (PBS)

 “Mugabe. . . present[ed] the policy as a “redistribution” of land to the poor and as a triumph over greedy white imperialists. In reality the policy, spearheaded by a ragbag army of armed thugs — the so-called “war veterans” — was a ruse to cement Mugabe’s hold on power through the distribution of patronage. It thus became a scramble for the plum, mainly (though not exclusively) white-owned, estates among the country’s elite, most of whose members had little interest in farming.” (Telegraph)

Not surprisingly, this “program” did little to alleviate the vast inequity of landholdings throughout the country.  In 2002, Human Rights Watch reported that:

“The fast track program has . . . violated rights to equal protection of the law, nondiscrimination, and due process. The violence accompanying land occupations has created fear and insecurity on white-owned commercial farms, in black communal areas, and in “fast track” resettled areas, and threatens to destabilize the entire Zimbabwean countryside.” (Human Rights Watch)

As a result of this violence, Zimbabwe, a once-richly agricultural country, is now dependent on food aid.:

"Farms seized in Zimbabwe often have landed up in the hands of Mugabe's cronies and inner circle and have been left to lie fallow, turning the country that once was the breadbasket of the region into a net food-importer where the poor often go hungry." (Associated Press)

The Case of Mike Campbell’s Farm

In 1974, Mike Campbell, a white South African, moved to then-Rhodesia and purchased the Mount Carmel farm. He expanded on it subsequently, and built it into a profitable enterprise. In his obituary last year, the Telegraph noted that

He “plant[ed] mangoes, citrus trees, maize, tobacco and sunflowers, establish[ed] a herd of Mashona/Sussex cattle and dedicat[ed] a large area to a wildlife reserve, complete with herds of giraffe, impala and other animals. Their Biri River Safari Lodge became a popular tourist destination.

Campbell was described as a model employer, and by the end of the 1990s Mount Carmel farm was the largest mango producer in Zimbabwe, helping to generate much-needed export earnings. The farm sustained the livelihoods of more than 500 people...”

During the violence that ensued throughout the 2000s, Campbell’s farm was repeatedly invaded and significantly damaged. Attempts to gain relief in Zimbabwean courts did not yield results. In 2007, he brought his case to the inter-governmental Southern African Development Community (SADC) Tribunal, the highest court in the region. Before that court issued its judgment (in favor of Campbell and other dispossessed white farmers), Campbell and his family were kidnapped and tortured.  (He passed away last year as a result of deteriorated health caused by the torture and did not live to see the recent judgment from South Africa.)

The ruling from the South African Supreme Court attempts to enforce the SADC Tribunal’s order.

The Recent Ruling from the South African Supreme Court

On September 20, South Africa's Supreme Court ruled that:                

“[A] white Zimbabwean farmer can take possession of a Zimbabwe government property to compensate for the seizure of his farm.

. . .

A tribunal of the Southern African Development Community in 2008 ruled that the takeovers of white-owned farmland in Zimbabwe were illegal and racist. President Robert Mugabe's government argued it was part of a land reform process to redress colonial wrongs. Hundreds of farmers were forced off their property in often violent government-sponsored seizures.

Zimbabwe refused to act on the tribunal's order to restore the farms to their owners, and the Southern African community dissolved the tribunal earlier this year.

In 2010, a South African High Court attached a Zimbabwe government property in Cape Town to satisfy the tribunal's order for punitive costs to pay for farmer Mike Campbell's legal expenses.

[The recent] dismissal upholds that ruling.” (Associated Press)

Enforcing this ruling will be a challenge in Zimbabwe – the Zimbabwean government has already “dismissed” it. Even if it is enforced, it sidesteps the issues of the thousands of landless black Zimbabweans and farm workers for whom a path to property, much less protection of that
property, has never been available. 

 

Priya S. Gupta

 ------------------------------------------------------------------------------------------------------------------

For more on Mike Cambpell’s story (including the lawsuit), readers are encouraged to watch the 2010 film, Mugabe and the White African. The film, which is not without fault, especially with regards to its race, gender, and historical framing, does provides some visual context to the legal case and what has been at stake.

 

 

June ABA RPTE Professor's Corner Conference Call

As I mentioned last month, the Real Property Trust and Estate Law Section of the ABA will host monthly "Professor's Corner" Conference Calls featuring three property professors who will discuss recent cases.  You do not need to be a member of the section or the ABA to participate in the call, but we certainly hope that you will consider joining.

The June call will be held on June 13th at 12:30 eastern/11:30 central and so on.  The call-in information is:

Dial in number: 866/646-6488

Participant Pass code: 9479109954

I will moderate the June call, which will feature:

Ray Brescia, Visiting Clinical Associate Professor of Law at Yale, currently on leave from Albany Law, will discuss recent developments in "Reverse Redlining" litigation in the wake of the financial crisis.  He will focus on recent settlements of actions against Wells Fargo and Countrywide Financial, and provide a brief overview of other ongoing litigation.

Shelby Green, Associate Professor at Pace Law School will discuss Italian Cowboy Partners, Ltd. v. The Prudential Ins., Co. Of Am., 341 S.W.3d 323 (Tex. 2011).  In this case, the court considered whether disclaimer-of-representations language in a lease contract precludes a fraud in the inducement claim.

John V. Orth, William Rand Kenan Jr. Professor of Law at University of North Carolina School of Law will discuss RBS Citizens, N.A. v. Ouhrabka, 30 A.3d 1266 (Vt. 2011) in which the court considered a creditor’s challenge to the doctrine of tenancy by the entireties.

If you are interested in participating in future calls, please let me know!

Tanya Marsh

Case of the Week

Harrison v. Mayor and Board of Alderman of City of Batesville (Supreme Court of Mississippi)

Facts: A gravel company applied for a zoning variance to expand its mining operation to property adjacent to its current operation. Neighboring property owners opposed the action. The mayor and city board of aldermen approved variance, with certain restrictions. Property owners appealed.

Holding:  The company failed to manufacture evidence of unnecessary hardship required for zoning variance, and the board of aldermen failed provide specific findings of fact and conclusions of law to support their decision.

Steve Clowney

Case of the Week

Westpac Aspen Investments, LLC v. Residences at Little Nell Development, LLC (Colorado Ct. of Appeals)

Issue: Does the merger of title doctrine extinguish a prescriptive easement when the sole owner of the servient estate holds title to the dominant estate in joint tenancy with his spouse?

Holding: No. The common ownership necessary to trigger the merger doctrine “must be absolute, not defeasible or determinable, and coextensive, rather than owned in different fractions.”  A joint tenant, however, lacks absolute dominion over the jointly held property. “Upon the death of one of the co-tenants in joint tenancy, the entire undivided interest of the deceased passes, by operation of law, to the surviving co-tenant.” Moreover, the joint tenant may not alienate, encumber, or transfer the interest of the other joint tenant.

Steve Clowney

Case of the Week

Shashoua v. Zien (Massachusetts Land Court)

Download Case Here

Background:  Parties are next door neighboors and were "best of friends."  Shashoua, however, brings suit claiming adverse possession over a slice of Zien's backyard.  The case does a very nice job laying out the requirements for adverse possession and demonstrates how a trial judge teases out whether one party's use of property is "adverse" or "continuous."

Holding:  The Judge found that Shashoua's use (cutting grass, planting flowers, children playing, walking dogs, setting up a tent for a bar mitzvah party) failed to meet the continuos and adverse prongs of the test for adverse possession.  The judge also ordered Shashoua to remove improvements she had installed that encroached on Zien's land.

Steve Clowney

Case of the Week

Harrington v. Metropolis Property Management Group, Inc. (Supreme Court of New Hampshire)

Background: Harrington signed a lease commencing on July 1, 2007, and ending “60 days after written notice has been given.”  In August of 2009, Harrington, angry about the barking of a neighbor's dog, gave 30 days notice and vacated the premise.  The property management company claimed Harrington violated the terms of the lease and retained his security deposit.  Harrington sued to recover the deposit, citing a series of New Hampshire laws indicating that: “30 days' notice shall be sufficient in all cases.”

Holding: "The use of the term “sufficient” in the statute connotes that the legislature intended that thirty days be the minimum period of time necessary for such notice." Nothing in the state's law "prevents parties to a lease from agreeing to a longer notice period than that provided by the statute to secure greater protection for themselves."

Steve Clowney

Case of the Week

Glenelk Ass'n, Inc. v. Lewis (Colorado Supreme Court) 2011 WL 4014396

Background:  This case is a real life, modern example of a landlocked piece of property and an owner seeking an easement by necessity.  Lewis owned a landlocked parcel and brought a private condemnation proceeding against Glenelk to obtain an easement over Glenelk's land.

Holding:  The party seeking the private condemnation must state the purpose of the condemnation in a way that enables the trial court to examine the scope and necessity of the proposed easement.

Steve Clowney

Supreme Court Grants Cert on Judicial Takings Case?

Over at Land Use Prof, Tim Mulvaney has a nice write-up on PPL Montana v. State of Montana, a recent property/enviro case that the Supreme Court has decided to grant cert on.  The central issue in the case is who owns the beds and banks of three Montana rivers that play a significant role in state's economy.  Whether the rivers are privately owned or belong to the state under the public trust doctrine depends on whether the rivers were “navigable” when Montana was admitted to the Union in 1889. 

As Tim points out, there may also be a looming judicial takings issue.  Tim writes: "In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, '[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.'"  Moreover, the Cato Institute is arguing that the "Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause," and calls the Court’s ruling a “thinly-disguised judicial taking.”

Steve Clowney

Severance v. Patterson Update

For all those following the happenings in Severance v. Patterson (important case on the Texas Open Beaches Act), our friends at Land Use Prof have a few updates:

1. Hannah Wiseman has a thorough post summarizing the recent rehearing in Severance v. Patterson in the Texas Supreme Court.

2. Matt Festa gives his two cents and a posts video of a panel discussion on the case.

3. Fianlly, Tim Mulvaney of Texas Wesleyan shares his thoughts after watching the arguments.

Steve Clowney

Kieff on Removing Property Rules from Intellectual Property

Scott Kieff (George Washington) has posted Removing Property from Intellectual Property and (Intended?) Pernicious Impacts on Innovation and Competition SSRN.  Here's the abstract:

Commentators have poured forth a loud and sustained outcry over the past few years that sees property rule treatment of intellectual property (IP) as a cause of excessive transaction costs, thickets, anticommons, hold-ups, hold-outs, and trolls, which unduly tax and retard innovation, competition, and economic growth. The popular response has been to seek a legislative shift towards some limited use of weaker, liability rule treatment, usually portrayed as “just enough” to facilitate transactions in those special cases where the bargaining problems are at their worst and where escape hatches are most needed. This essay is designed to make two contributions. First, it shows how a set of changes in case law over just the past few years have hugely re-shaped the patent system from having several major, and helpful, liability-rule-pressure-release-valves, into a system that is fast becoming almost devoid of significant property rule characteristics, at least for those small entities that would most need property rule protection. The essay then explores some harmful effects of this shift, focusing on the ways liability rule treatment can seriously impede the beneficial deal-making mechanisms that facilitate innovation and competition. The basic intuition behind this bad effect of liability rules is that they seriously frustrate the ability for a market-challenging patentee to attract and hold the constructive attention of a potential contracting party (especially one that is a larger more established party) while preserving the option to terminate the negotiations in favor of striking a deal with a different party. At the same time, liability rules can have an additional bad effect of helping existing competitors to coordinate with each other over ways to keep out new entrants. The essay is designed to contribute to the literature on IP in particular, as well as the broader literatures on property and coordination, by first showing how a seemingly disconnected set of changes to the legal rules impacting a particular legal regime like the patent system can have unintended and sweeping harmful consequences, and then by exploring why within the more middle range of the spectrum between the two poles of property rules and liability rules, a general shift towards the property side may be preferred by those seeking an increase in access and competition.

Steve Clowney

Update on Severance v. Patterson

Matt Festa continues to do the knowledge on Severance v. Patterson, an important case on the Texas Open Beaches Act.

Steve Clowney

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

Rule on Disputes Over Airspace

Troy Rule (Missouri) has posted Airspace in a Green Economy on SSRN.  Here's the abstract:

The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land. The article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and non-rival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability.

Steve Clowney

Texas Supreme Court Decision in Severance v. Patterson

Over at the Land Use Prof blog, Matt Festa has a great post on Severance v. Patterson, an important Texas Open Beaches Act case recently decided by the Florida Supreme Court.

Ben Barros

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

Distinguishing Between Private-Public and Private-Private Transfers in Judicial and Regulatory Takings

I've been working on a fairly lengthy post-Stop the Beach article on judicial takings.  I will probably post the article on SSRN in a week or so.  In the meantime, I wanted to blog about a distinction that is at the core of my arguments in the article.  As I explain further below the fold, government actions that mandate the transfer of property interests from private property owners to the public ("private-public transfers") should be distinguished from government actions that mandate the transfer of property interests between private persons ("private-private transfers").  I argue that judicial takings, and regulatory takings more broadly, should apply only to private-public transfers, but not to private-private transfers.

I touched on this distinction way back in my first post on the grant of cert in Stop the Beach (see point 5).  Immediately after Stop the Beach was decided, Jerry Anderson asked the following question:

I am curious about Justice Scalia's position that courts may not eliminate "established private property rights." What do such rights consist of? For example, assume that a state court decides to move from a "good faith" approach to adverse possession to an "objective" standard, which will allow some possessors to prevail, even though they knew the land they were occupying was not theirs. This is a standard "evolution" of common law, yet it does, under Justice Scalia's rigid formulation, result in a party losing property that it would not have lost under the old common law test. Is that a "taking"? Can the court NOT change such a common law test without having to compensate property owners?

To me, such a change in adverse possession law involves a private-private transfer, and should not fall within the judicial takings analysis.  In excellent posts taking up Jerry's question, Lior Strahilevitz and Eduardo Penalver both discussed the private-private nature of the change in adverse possession law.

What follows below the fold is a very lengthy treatment of this issue.  The rest of the post is taken from a few sections of my draft article, with the footnotes removed.  I'd very much welcome any comments on the argument.  In particular, I'd be interested in references to similar arguments, if any, that have been made in the existing regulatory takings literature.

Distinguishing Between Private-Public Transfers and Private-Private Transfers

Cases in which the challenged government action transfers private property to the public may be distinguished from cases in which the government action transfers private property from one private person to another.  Here are some examples of the first type of case, which I call a “private-public” transfer:

•    A court redefines a certain area that had been private property to be public property.  Beachfront property has been a focus of recent judicial takings cases and commentary in significant part because it involves an often-contested border between public and private property.  In all jurisdictions, at some point on the beach private property ends and public property begins.  This borderline is set at various places in various jurisdictions, but two likely candidates are the mean high tide line (i.e., the average point that the water reaches at high tide) and the vegetation line (i.e., the point at which vegetation starts to grow).  On many beaches, there is an area of sand between the mean high tide line and the vegetation line, and this part of the beach is commonly used for recreation.  Imagine a jurisdiction had clearly established caselaw that set the mean high tide line as the public-private boundary.  If the state supreme court in that jurisdiction issued an opinion changing the boundary to the vegetation line, then the area of beach between the mean high tide line and the vegetation line, which had been private, would be transferred by the judicial decision to public ownership.  

•    A court grants public access to what had previously been private property.  Imagine that, as in the prior example, a jurisdiction has clear caselaw that establishes the mean high tide line as the private property boundary for beachfront property.  In this scenario, however, the state supreme court departs from prior precedent and holds that the public must be allowed access to the area between the mean high tide line and the vegetation line.  Here, unlike the prior example, the property remains in private hands, but it is subject to a public right of access.  The judicial action can be conceptualized as removing part of the private property owner’s right to exclude, or as transferring an easement for public access from the private property owner to the public.  If the legislature or an executive agency had done the same thing, this action would be a per se taking under the Supreme Court’s regulatory takings caselaw.

•    A court changes property law so that private property transfers to state ownership.  A property owner typically has the right to transfer property at death.  Imagine that a state supreme court changed its existing law, and held that upon a property owner’s death, certain types of property escheated to the state.  This judicial action would lead to the transfer of private property to the state.  If this change in the law was performed by the legislature or an executive agency, it would be an unconstitutional taking under the Supreme Court’s regulatory takings jurisprudence.

•    A court destroys existing use rights in private property.  Imagine that in our hypothetical jurisdiction, the pre-existing caselaw clearly permitted a property owner to build on a particular type of property.  The state supreme court then issues an opinion changing the law, and as a result the property owner is no longer permitted to build on the property.  Whether or not this change would constitute a taking if enacted by the legislature or an executive agency would depend on the specific facts of the case and the idiosyncrasies of regulatory takings law.  In at least some circumstances, such a legislatively- or executively-enacted change would be a taking.  Regardless of whether the change is unconstitutional, it involves a private-to-public transfer because the use rights that before the judicial action were in private hands no longer exist as private property.  These use rights were not transferred to another private person; rather, use rights were destroyed as private property rights.  The destruction of private property rights in this sense is the equivalent of transferring them to the public.  The government could change the law to re-create these use rights, and thereby transfer them back to the private property owner. 

The second type of case, which I call a “private-private” transfer, involves a government action that transfers property from one private person to another.  Here are some examples:

•    A state supreme court changes its rules on interpreting ambiguous conveyances; as a result, person A is held to own a parcel of property, whereas person B would have owned the parcel under the prior law.

•    A state supreme court changes its law of future interests; as a result, person A now holds the future interest to a certain parcel of property, where under the former rule, person B now holds the future interest to that parcel of property.

•    A state supreme court changes its law on creation of easements; as a result, an easement that would have been valid under the prior law no longer exists.  The easement is effectively transferred from the person who would have been the easement holder (person A) to the person who owns the property that would have been subject to the easement (person B).

•    The obverse of the previous scenario:  a state supreme court changes its law on creation of an easement; as a result, an easement that would not have been valid is now valid.  The easement is effectively transferred from the person whose property would have been free of the burden of the easement to the person who now owns the benefit of the easement.

•    A state supreme court changes its rules on contracts (e.g., the statute of frauds or the parol evidence rule); as a result, person A loses a dispute over ownership of a parcel of property to person B; person A would have won under the old rule.

•    A state supreme court changes its interpretation of its recording act; as a result, person A’s interest in a parcel of property is invalid, where it would have been valid under the prior law.

•    A state supreme court changes its rules on adverse possession; as a result, person B owns the property whereas under the prior rule, person A would have owned the property.

Various distinctions might be made between these scenarios; some, for example, involve changes in substantive property law, while others involve changes in other areas of law that affect property ownership.  For now, however, I will focus on the private-private nature of the transfer that is common to all of the scenarios.

The Just Compensation Clause Should Apply to Private-Public Transfers, but not to Private-Private Transfers

My argument that the Just Compensation Clause should apply to private-public transfers, but not to private-private transfers, has three parts.  First, private-private transfers do not “destroy” or “take” property in the same sense as private-public transfers.  Second, there is scant support in the Court’s regulatory takings jurisprudence for applying the Just Compensation Clause to private-private transfers.  Third, there is no support in Justice Scalia’s Stop the Beach plurality for including private-private transfers within a judicial takings doctrine.

(1) Private-Private Transfers Neither “Destroy” Nor “Take” Property in the Same Sense As Private-Public Transfers

Recall the examples of private-public and private-private transfers discussed above.  Some of these scenarios involve what fairly could be termed the destruction of a private property right.  The example involving a change in future interest law, for example, might involve the invalidity of an interest that would otherwise have been valid.  It is not a stretch to call this change a destruction of the future interest in question.  So, too, with the example of the easement that otherwise would have been valid under the prior law; the change in law can fairly be termed a destruction of the easement.

These two examples, however, do not involve the destruction of a property right in the sense that it was used to describe the examples involving private-public transfers.  In the private-public transfers, the private property right was destroyed as an interest in private property; those rights are no longer held by any private person, and are public, not private, property.  In the private-private examples involving the future interest and the easement, in contrast, the interests are best conceptualized as being transferred to another private person, rather than as being destroyed outright as private property interests.

This distinction can be illustrated by comparing the easement-destruction example and the beachfront land example involving judicial redefinition of the public-private boundary line.  If the easement is destroyed, the property interests represented by the easement effectively transfer from the person who would have been the holder of the benefit of the easement (person A) to the holder of the property that would have been burdened by the easement (person B).  Person B could later grant those interests to person A or another person.  That is, person B could re-create the destroyed easement.  In the beachfront land example, in contrast, no private property owner could re-create the destroyed property interests.  In the first beachfront example, the state supreme court moved the boundary between public and private property from the mean high tide line to the vegetation line.  This action destroyed the private property between the mean high tide line and the vegetation line.  The private property interests at issue no longer exist – no private person could re-create them under any circumstance.  Rather, these interests have become public property.  The public, of course, could act through a government entity to re-create the destroyed private property interests, for example by legislatively granting the land at issue to a private person.  The private-public transfer involved in this example, however, truly destroys private property in that the property interest is no longer private, while the private-private transfer at issue in the easement example preserves the interests as private property, albeit in a different private owner.

Similarly, a private-public transfer “takes” property in a way that a private-private transfer does not.  It is natural to read the word “taken” in the Just Compensation Clause as applying to those circumstances where the government action transfers the property interest from a private person to the government.  The development of the Court’s regulatory takings jurisprudence shows a consistent recognition that the government can take property in this sense without an exercise of eminent domain.  The foregoing discussion of the beach front property scenario demonstrates that property can be taken through judicial action just as it can be taken by regulation – the effect on the property owner in the version of the scenario involving an underlying legislative action is the same as it is in the version where the judiciary acts on its own.

In a private-private transfer, in contrast, the government action does not take property in the same way.  To be sure, it does not do violence to the word “take” to say that the examples of the private-private transfers discussed above take property from one person and transfer it to another.  There is good reason, however, to focus on both ends of the transaction in interpreting the Just Compensation Clause.  The historical evidence suggests that the Just Compensation Clause was inspired by private-public transfers, and the Supreme Court’s recent regulatory takings jurisprudence has increasingly focused on the equivalence of the contested regulatory act to an exercise of eminent domain.  By its nature, eminent domain involves a private-public transfer.  It is true that at least under the Supreme Court’s caselaw that the government is able to transfer private property taken by eminent domain to another private party.  Even here, however, the transfer would be private-public-private, rather than simply private-private.  That is, even when eminent domain is used to transfer property from one private person to another, there is an intervening period of government ownership.

Even if private-private transfers do not “take” property from an owner in the sense used here, they do “deprive” the owner of property.  At the beginning of the transfer, the private person owned certain property.  At the end of the transfer, they did not.  Following the text of the Fifth Amendment, this distinction between “take” and “deprive” suggests that there is a textual basis to apply the Just Compensation Clause to private-public transfers, but not to private-private transfers.  The relevant portion of the Fifth Amendment reads:  “No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”  The Due Process Clause of the Fourteenth Amendment echoes the language of that in the Fifth Amendment:  “nor shall any State deprive any person of life, liberty, or property, without due process of law.”  Focusing on both the front and back ends of the transfer provides a natural demarcation of which types of transfers are subject to the Just Compensation Clause and the Due Process Clause.  Both private-public and private-private transfers imposed by a government actor “deprive” owners of private property, and are subject to the requirements of the Due Process Clause.  Only private-public transfers, in contrast, “take” property, and are subject to the requirements of the Just Compensation Clause.

(2) There is Little Support in the Court’s Contemporary Regulatory Takings Jurisprudence for the Application of the Just Compensation Clause to Private-Private Transfers

The Supreme Court’s regulatory takings caselaw has largely involved challenges to government actions that result in private-public transfers.  The regulatory takings case that most resembles the prototypical judicial takings scenario of a change in substantive property law is Hodel v. Irving, which involved a legislative alteration of an owner’s power to transfer certain types of property at death.  The legislation at issue, however, changed the law so that the at the owner’s death, the property at issue would escheat to the state, rather than transfer to another private person.  The legislative change thus created a private-public transfer, rather than a private-private transfer.  Similarly, Webb’s Fabulous Pharmacies v. Beckwith, which features prominently in discussions of judicial takings, involved a court holding that certain private funds had become “public money.”

The land use regulation cases that are at the core of the Court’s contemporary regulatory takings jurisprudence also involve private-public transfers.  As discussed above, land-use restrictions transfer the use rights at issue from the affected private property owners to the public.  In Lucas v. South Carolina Coastal Council, for example, South Carolina’s Beachfront Management Act prohibited David Lucas (or any other owner of the subject property) from building on two parcels of beachfront property that he owned.  The use rights that Lucas had previously held were therefore transferred to the public.  Similarly, in Penn Central Transportation Co. v. City of New York, the owners of Grand Central Terminal claimed that New York’s landmarks preservation law prevented them from building in the air space above the terminal.  The Supreme Court rejected this takings claim, but the property owner’s theory was that the government had transferred its claimed use rights from the owner to the public.

The early regulatory takings case of Pennsylvania Coal Co. v. Mahon at least in part involved a private-private transfer.  Pennsylvania’s Kohler Act prohibited the mining of coal beneath inhabited structures unless the owner of the coal also owned the structure.  In circumstances where the owner of the coal was different from the owner of the structure, the Kohler Act therefore transferred the right to mine the coal at issue from the coal company (private) to the owner of the structure (also private).  There are good reasons, however, to see Mahon as a substantive due process case, rather than a regulatory takings case in the mold of contemporary cases like Penn Central and Lucas.  The Supreme Court recently recognized in Lingle v. Chevron that the substantive due process inquiry in early cases differs in important respects from the contemporary regulatory takings inquiry.  If Mahon is understood as a substantive due process case, then it does not lend support for applying the Just Compensation Clause to private-private transfers.  As noted above, a private-private transfer constitutes a “deprivation” within the meaning of the Due Process Clause, and both procedural and substantive due process concepts apply to private-private transfers.

Contemporary physical invasion cases such as Nollan and Kaiser Aetna involved a transfer of the right to exclude from private property owners to the public.  Indeed, each case involved private property being subject to access by the public.  Similarly, PruneYard Shopping Center v. Robins involved access to a mall by members of the public, and United States v. Causby involved overflights by military airplanes.

One contemporary physical invasion case did involve a type of private-private transfer:  Loretto v. Teleprompter Manhattan CATV Corp.  Loretto involved a challenge to a New York law that required private property owners to allow cable companies to install wiring and equipment on their property, and prohibited the owners from demanding compensation from the cable companies in return.  Unlike the other physical invasion cases discussed above, the right to exclude in Loretto was transferred not from a private property owner to the public generally, but was instead transferred from private property owners to cable companies, which are private corporations.  Put another way, all of the physical invasion cases involve what effectively is the transfer of an easement from a private property owner to another party.  In most physical invasion cases, this easement is transferred to the public.  In Loretto, it was transferred to a private corporation.

Loretto thus presents a challenge to my assertion that the Supreme Court’s contemporary regulatory takings jurisprudence has typically involved private-public transfers.  There are a number of responses to this challenge.  First, the cable companies at issue in Loretto were public utilities, not ordinary private corporations.  The distinction between private and public entities is a permeable one, and utilities, like common carriers, enjoy something of a quasi-public status.  For example, utilities are often delegated the power of eminent domain.  In this context, it is notable that the equipment involved in Loretto was part of the larger cable network used to serve the public as a whole.  The transfer in Loretto therefore has elements of a private-public transfer.  Similarly, in Causby, the airplane overflight case, the outcome likely would not have changed if the overflights were by commercial airliners rather than military planes.  Although commercial airlines are private entities, as common carriers they serve the public at large, and an invasion of private property by a common carrier can fairly be seen as an invasion by the public.  Second, it can be argued that Loretto is simply wrong on its facts, even if its rule that regulations that require physical invasions by the public are per se takings is sound.  Third, and related to the second point, it can be argued that the Court in Loretto applied the wrong law to its facts, and was therefore led into an incorrect holding.  I admit that it is a stretch to reconceptualize Loretto as a substantive due process case, because its analysis is stated expressly in terms of regulatory takings concepts and cases.  But if Loretto is understood as involving a private-private transfer, then under the approach that I advocate here, it should be evaluated under due process concepts, not takings concepts.  Even under the relatively robust substantive due process inquiry advocated by Justice Kennedy, the law at issue in Loretto would likely have been deemed constitutional, because the trivial impact on private property owners was imposed by a law for the easily justifiable purpose of allowing the cable companies to provide cable service to the public.

This brings us to the line of recent regulatory takings cases that most clearly involve private-private transfers.  Most of the cases in this line involved regulatory takings and due process challenges to the retroactive imposition of monetary liability, typically in the pension context.  So long as the newly-imposed monetary liability is owed to another private person, rather than the government, this type of case involves a private-private transfer.  Two earlier cases in this line, Connolly v. Pension Benefit Guarantee Corp., and Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., Inc.,  rejected takings claims to this type of retroactive imposition of liability, and therefore do not provide strong support for the application of the Just Compensation Clause to private-private transfers.

The most recent case in this line, Eastern Enterprises v. Apfel, did hold that a retroactive imposition of liability for health benefits was unconstitutional.  The justices’ positions in Apfel, however, were highly fractured, and no position commanded a majority.  Justice O’Connor’s plurality opinion applied a regulatory takings analysis to find the imposition of liability unconstitutional.  There are four reasons why Justice O’Connor’s plurality does not provide strong support for applying the Just Compensation Clause to private-private transfers.  First, it is only a plurality opinion.  Second, and relatedly, Justice Kennedy dissented from the plurality’s regulatory takings analysis.  Justice Kennedy’s opinion did express some concern that the government could avoid takings liability by mandating private-private transfers.  As I will argue further below, however, Justice Kennedy’s positions in Stop the Beach and other cases strongly suggest that he would address these concerns through the application of substantive due process doctrines, not regulatory takings doctrines.  Third, as the fragmented opinions in Apfel suggest, the underlying question in these cases of whether the imposition of monetary liability can fairly be understood as a taking remains controversial and unresolved.  Fourth, Apfel was decided before Lingle v. Chevron.  In Lingle, the Court recognized that its regulatory takings jurisprudence had been inadvertently infected with substantive due process concepts.  As a result, the Court held that the “substantially advances” test, which had appeared to be well established in the Court’s regulatory takings jurisprudence, should be rejected as an artifact of now-outdated substantive due process doctrine.  A close look at the Apfel plurality reveals that it is based on vested rights and non-retroactivity concepts that historically have been grounded in substantive due process, not takings.  As the Court later recognized in Lingle, it is wrong to incorporate substantive due process concepts into the regulatory takings analysis.

Finally, one case in this line, United States v. Security Industrial Bank, applied a regulatory takings analysis to a private-private transfer in a way that is hard to discount.  Unlike Apfel, Connolly, and Concrete Pipe, Security Industrial Bank did not involve the retroactive imposition of monetary liability.  Rather, it involved the retroactive application of a lien avoidance statute.  The retroactive termination of a lien under the statute would have amounted to a private-private transfer of the lien interest from the lien holder to the owner of the property subject to the lien.  To avoid constitutional retroactivity problems, the Court interpreted the statute to apply only prospectively.  Although the Court noted that the case fit awkwardly into the regulatory takings framework, it rested its retroactivity concerns on regulatory takings cases.  Most importantly to present issue, the Court specifically rejected the government’s argument that takings concepts should not apply because the case involved a private-private transfer rather than a private-public transfer.  In a prior case, Armstrong v. United States, the Court had held that the destruction of a lien on government property through the operation of sovereign immunity constituted a compensable taking of the lien.  In Security Industrial Bank, the government attempted to “distinguish Armstrong on the ground that it was a classical ‘taking’ in the sense that the government acquired for itself the property in question, while in the instant case the government has simply imposed a general economic regulation which in effect transfers the property interest from a private creditor to a private debtor.”  The Court’s rejected this argument in one sentence:  “While the classic taking is of the sort that the government describes, our cases show that takings analysis is not necessarily limited to outright acquisitions by the government for itself.”  In support of this proposition, the Court cited Loretto, PruneYard, and Mahon.  As discussed above, Loretto does provide limited support for the application of the Just Compensation Clause to private-private transfers, although PruneYard and Mahon do not.  The Court’s position in Security Industrial Bank therefore had minimal precedential support, but the case itself now provides the clearest example of the Court applying a regulatory takings analysis to a private-private transfer.

Although its discussion is relatively explicit, Security Industrial Bank provides thin support for the application of the Just Compensation Clause to private-private transfers.  The Court’s cursory discussion of the subject was not well supported by precedent.  Further, the Court used the regulatory takings analysis as a justification for construing the statute narrowly, rather than as a justification for invalidating the entire statute.  The Court could have used due process based non-retroactivity concepts to reach the same point.  Finally, as with the other cases in the Apfel line, the overall thrust of the Court’s opinion in Security Industrial Bank is inconsistent with Lingle’s recognition of the importance of separating the takings and substantive due process analyses.  Post-Lingle, constitutional concerns about the retroactive imposition of private-private transfers that historically have been rooted in substantive due process should not be seen as a part of the regulatory takings analysis.  Understanding that this type of retroactivity claim is the province of substantive due process will further the significant clarification that Lingle has brought to regulatory takings doctrine.

Security Industrial Bank and Loretto therefore should be seen as the outliers in the Supreme Court’s regulatory takings jurisprudence.  The Court’s regulatory takings cases – including the iconic cases such as Penn Central and Lucas – overwhelmingly have involved private-public transfers.  The Court’s caselaw therefore provides very little support for applying a regulatory takings analysis to private-public transfers, whether mandated by the legislature, executive, or judiciary.

(3) There is no Support in Justice Scalia’s Plurality Opinion for the Application of the Just Compensation Clause to Private-Private Transfers

Justice Scalia’s plurality opinion in Stop the Beach had a very strong focus on private-public transfers.  The opinion, for example, noted that Webb’s Fabulous Pharmacies closely resembled the claimed taking in Stop the Beach, and repeatedly emphasized the private-public transfer that was involved in that case.  The opinion does contain two passages that, taken in isolation, might be taken as support for the application of the Just Compensation Clause to private-private transfers.  On closer inspection, however, neither passage in fact provides this support.

In the first of these passages, Justice Scalia wrote:  “Moreover, though the classic taking is a transfer of property to the State or to another private party by eminent domain, the Takings Clause applies to other state actions that achieve the same thing.”  Taken alone, the words “to another private party” might be interpreted as providing some support for applying the regulatory takings inquiry to private-private transfers.  This sentence is the beginning of a paragraph that highlights the trend in the Court’s regulatory takings jurisprudence of equating certain regulatory acts to exercises of eminent domain, and it is true that under Kelo and similar cases the government may use eminent domain to transfer property from one private person to another.  As discussed above, however, these exercises of eminent domain are private-public-private, not private-private.  The paragraph closes with a sentence that emphasizes the private-public transfer that was involved in Webb’s, and in context of the overall private-public thrust of the plurality opinion, the words “to another private party” should be taken simply as an accurate statement of the Court’s post-Kelo eminent domain jurisprudence.  Further, both Justices Scalia and Thomas dissented in Kelo, and it is fair to presume that Chief Justice Roberts and Justice Alito would likewise be hostile to Kelo-type uses of eminent domain.  There would be a certain level of dissonance involved with maintaining a position that Kelo is wrong and maintaining that the regulatory takings inquiry should apply to private-private transfers because of Kelo.  This passage from the Stop the Beach plurality opinion therefore should not be read as support for applying principles grounded in the Just Compensation Clause to private-private transfers.

In the second passage, Justice Scalia wrote:  “If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”  Some of the private-private transfer scenarios discussed above might involve the “declar[ation] that what was one an established right of private property no longer exists.”  For example, the scenarios involving changes to the law of future interests and the law of easements in one sense each declared that a private property interest no longer existed.  As discussed above, however, these scenarios do not involve the elimination of interests as interests in private property; rather, they are better seen as involving the transfer of property interests from one private person to another.  Any suggestion that this passage provides support for applying the Just Compensation Clause to private-private transfers can be refuted simply by placing the passage into its context in Justice Scalia’s plurality opinion:

In sum, the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.  To be sure, the manner of state action may matter:  Condemnation by eminent domain, for example, is always a taking, while a legislative, executive, or judicial restriction of property use may or may not be, depending on its nature and extent.  But the particular state actor is irrelevant.  If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.  “[A] state, by ipse dixit, may not transform private property into public property without compensation.”

Every other sentence in this paragraph is focused solely on government actions that result in transfers of private property to the public.  In context, the passage at issue, like the remainder of Justice Scalia’s plurality opinion, should be read as being concerned with private-public transfers, not private-private transfers.

Ben Barros

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NY Court of Appeals Rules in Columbia University Eminent Domain Case

The New York Court of Appeals today upheld the use of eminent domain for an expansion of Columbia University.  Ilya Somin comments at the VC; Matt Festa comments at the Land Use Prof Blog; Tim Sandefur comments at the PLF's blog; and Robert Thomas comments at the Inverse Condemnation Blog.

Ben Barros

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Supreme Court Rules in Stop the Beach

The Supreme Court today ruled in the Stop the Beach judicial takings case.  In an opinion by Justice Scalia, the Court rejected the judicial takings claim.  The Court's judgment was unanimous, but there were fragmented opinions on various issues, as described further below.  For background on the case, see this post.  For a recap of the oral argument, see this post.  For a great description of the social conflicts behind the dispute, see this article from the New York Times Magazine. 

I will be updating this post with analysis of the Court's opinions and with links to commentary about the case.

A Quick Summary of the Opinions

Justice Scalia delivered the Opinion of the Court, which was unanimous, for Parts I, IV, and V.  These parts together hold that the Florida Supreme Court's opinion was sufficiently consistent with Florida caselaw that the takings claim should be rejected.  Justice Scalia's opinion, however, is not the Opinion of the Court for Parts II and III.  These Parts reach the issue of judicial takings, and assert that under the correct circumstances, a judicial action can violate the takings clause.  Justice Scalia was joined in these Parts by the Chief Justice and Justices Thomas and Alito.  Justice Stevens did not participate in the case (because he owns Florida beachfront property), and the four other Justices (Kennedy, Ginsburg, Breyer, and Sotomayor) declined to join in Parts II and III of Justice Scalia's opinion.  Justice Kennedy wrote a concurring opinion, joined by Justice Sotomayor, and Justice Breyer wrote a concurring opinion, joined by Justice Ginsburg.  Together, these concurrences suggest that it was unnecessary to reach the issue of whether it is ever possible to have a judicial taking.  So on this critical issue, the Court split 4-4.  Because of the tie, Justice Scalia's opinion is not controlling precedent on this issue.  The overall issue of whether there can ever be a judicial taking is therefore still open as a matter of Supreme Court caselaw. 

Analysis

(1) What is the standard for judicial takings?  As noted above, the big question of whether there can ever be a judicial taking is still open.  If the ultimate answer to this question proves to be "yes", what would be the standard for deciding whether there is a judicial taking?  Four justices objected to even considering this issue, but Justice Scalia's opinion proposes the following standard:  "If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property . . ." (Slip op. at 10, emphasis original).  Later in his opinion (at 23), Justice Scalia rejects the standard suggested by Justice Stewart's Hughes v. Washington concurrence that a decision that "constitutes a sudden change in state law, unpredictable in terms of relevant precedents" would be a taking. So the focus of Justice Scalia's proposed standard is on whether there is an established right of private property, not on whether the outcome was predictable.  There might often be a congruence between clear establishment of a right and predictability of an outcome, but Justice Scalia gives a few examples (at 23-24) where that might not be the case.

(2) What is the future of judicial takings litigation?  One fear about allowing judicial takings is that the federal courts will become the courts of last resort for property disputes.  Justice Scalia suggests that a litigant who loses before a state supreme court can only raise a judicial takings challenge through a cert petition to the United States Supreme Court. (Slip op. at 23).  But property owners who were not a party to the original litigation could challenge the state supreme court's decision as a judicial taking in the lower federal courts:  "And where the claimant was not a party to the original suit, he would be able to challenge in federal court the taking effected by the state supreme-court opinion to the same extend that he would be able to challenge in federal court a legislative or executive taking previously approved by a state supreme-court opinion." (at 23).  I am not at all an expert on Williamson County and San Remo, so I can't yet fully evaluate the impact of this statement.  And, of course, Justice Scalia's opinion is not binding on this point.  But Justice Scalia certainly seems to invite property owners to (a) bring cert petitions claiming judicial takings if they lose in state supreme court; even though cert petitions have a low chance of being granted, a petition claiming a judicial taking would get a sympathetic read from at least some of the Justices' chambers; and (b) bring lower court judicial takings cases if they were not litigants before the state supreme court.  These invitations, combined with the lack of clear guidance on any of these issues from the Court, suggest that we will see a lot of litigation on these issues in the near future.

[UPDATE:  Some further thoughts about the litigation that we're likely to see.  First, I think that state supreme courts might be especially careful after Stop the Beach to paper up their property opinions well.  As the actual outcome in Stop the Beach showed, state property law often allows a substantial amount of wiggle room.  Another way of putting this is that state law property rights might not always be as clear as many people suppose.  Second, it may be that the statute of limitations has not yet run on judicial takings claims based on some recent state supreme court decisions.  I don't have any specific case in mind, but property owners who were not parties to the initial litigation might start bringing claims in the lower federal courts.  Third, although the denial of cert would preclude a takings claim by the litigant in the state supreme court, the cert denial would have no precedential value, so every cert denial in a judicial takings case might be followed by claims brought in the lower federal courts by similarly situated property owners.  Fourth, these claims are going to be very challenging for the lower federal courts.  Not only is the standard for judicial takings unclear, but the procedural propriety of bringing judicial takings claims in the lower federal courts is not even clear -- Justice Scalia suggested that these claims could be brought, but his opinion is not controlling precedent on this point.  It could turn out in some case down the road that these kind of claims cannot be brought in federal court.  Faced with this mess, lower federal courts would do well to do what the Supreme Court ultimately did in Stop the Beach:  look for some precedential support for the state supreme court opinion that is being challenged, and reject the constitutional challenge.] 

(3) Justice Kennedy's concurrence could be very important.  Justice Kennedy raises a number of interesting issues in his concurrence.  I want to focus for now on just one.  Consistent with his approach in a number of other takings cases, Justice Kennedy has advocated for a relatively robust role for due process analysis.  The most important statement in Justice Kennedy's concurrence might be this:  "The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is 'arbitrary or irrational' under the due process clause." (Slip op at 4).  Like Justice Scalia's proposed judicial takings test, this one focuses on clearly established property rights.  So it is possible to count six votes for the proposition that a state supreme court opinion that eliminates clearly established property rights is unconstitutional:  the Chief Justice and Justices Scalia, Thomas, and Alito on judicial takings grounds, and Justices Kennedy and Sotomayor on due process grounds.  I also think it is very interesting that Justice Sotomayor joined Justice Kennedy's opinion, rather than Justice Breyer's.  This may be a hint that Justice Sotomayor may be more protective of property rights than many of the Court's liberal justices have been over the last few years.  It is worth remembering in this context that both Justice Brennan and Justice Marshall wrote a number of takings opinions that were very pro-property owner (e.g., the San Diego Gas & Electric dissent by Justice Brennan, the Loretto opinion by Justice Marshall).

(4) Justice Stevens may have been missed by the pro-government side.  Justice Stevens has been the intellectual leader of the pro-government side on regulatory takings issues since at least 1987.  This is speculation (though informed speculation), but I would have expected Justice Stevens to have made the case against recognizing a doctrine of judicial takings had he not recused himself.  Justice Breyer was satisfied with making the case that this issue shouldn't be decided now.  I think that Justice Stevens would have said more. [UPDATE:  Tony Mauro at the BLT has some additional thoughts on the impact of Justice Stevens' recusal].

(5) Potential impact on the broader regulatory takings issue.  There are two notable things about the plurality portion of Justice Scalia's opinion for regulatory takings more broadly.  First, it continues to emphasize the concept of equivalence that has been a theme in recent regulatory takings cases.  By "equivalence" I mean the idea that a regulation or other government action is a taking if it is the equivalent of an exercise of eminent domain.  (See slip op. at 8).  This idea was a major theme in Lingle v. Chevron.  I think that this is a potentially important concept in that it may circumscribe the scope of regulatory takings - regulations that lead to a total diminution in value of property are easy to equate to an exercise of eminent domain; regulations that result in a lesser diminution in value seem much less like the equivalent of an exercise of eminent domain.  Second, Justice Scalia's opinion includes a shot across the bows of state supreme courts that might want to use the background principles exception from Lucas to insulate a regulatory action from a takings claim.  After quoting the relevant language from Lucas, he states that "A constitutional provision that forbids the uncompensated taking of property is quite simply insusceptible of enforcement by federal courts unless they have the power to decide what property rights exist under state law." (Slip op. at 22).  In other words, in Justice Scalia's view, federal courts shouldn't be too deferential to state court characterizations about the scope of property rights.

(6) Some classic Scalia.  In taking on Justice Breyer's argument that there was no need to address the core judicial takings issues, Justice Scalia makes a reference to a classic tongue twister:  "JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?) or (b) answer in the negative what he considers to be the 'unnecessary' constitutional question whether there is such a thing as a judicial taking."  Justice Scalia treats the question of the woodchuck as open, but it of course has an answer:  a woodchuck would chuck as much wood as a woodchuck could chuck if a woodchuck could chuck wood.

(7) The Euclid cameo.  Michael Allan Wolf, who knows a lot about Euclid, just pointed out to me that Justice Scalia badly miscites Euclid - see the slip opinion at p. 12, describing Euclid in a parenthetical as "recognizing that block zoning ordinances could constitute a taking, but holding that the challenged ordinance did not do so."  As Michael pointed out, this is clearly wrong on a number of levels.  Most importantly, in my humble opinion, is that Euclid is not a takings case.  It is a substantive due process case, as Justice Kennedy suggests in his concurrence (slip op. at 3).  I really don't think that it is helpful to Justice Scalia's broader agenda to treat Euclid as a takings case, and in any event it is simply wrong to do so. 

A couple of random points.  First, in my first big post about this case, I wrote:  "I would guess that Justice Scalia was instrumental in obtaining the cert grant.  I predict that the Supreme Court will find a taking in Stop the Beach and that Justice Scalia will write the opinion of the Court."  Well, I was at least half right.  My predictions after oral argument were a little more on target re: the outcome.  Second, it has frequently been observed that blogs have compressed the cycle of analysis on Supreme Court opinions.  Having just tried to put together some cogent thoughts in about three hours really drove that point home for me.  Third, Justice Scalia showed academics no love at all, and did not cite the leading law review articles on judicial takings.  Justice Kennedy did cite some, but not all, of the leading articles on point.  Fourth, I noted before that I advocated in the past (albeit as a law student) for federal judicial takings review of state court property decisions.  Here is what I said in my student note (63 Fordham L. Rev. at 1881-82) on the judicial takings standard: 

The Court should explicitly adopt Justice Stewart's Hughes v. Washington test, while avoiding the problematic "reasonable expectations."  State court findings in just compensation cases should be reviewed to ensure that they define property using legitimate statutory and common law precedent, rather than using the inherent flexibility of common law to define property rights out of existence.  If the state courts previously have recognized a property interest, either between private individuals or between an individual and the state, then the state cannot destroy that interest without compensation.  Such a requirement would accommodate the desire to have the state's property law serve as the primary source of the definition of property, while maintaining the protection of liberty required by the Just Compensation Clause.

This is somewhat close to the standard that Justice Scalia proposed, which is kind of cool.  The problem is that I'm not sure that I still agree with what I said as a law student.  I'll have to sort that out sometime soon.

Further thoughts on the case from around the blogosphere and the media (to be updated periodically):

Lior Strahilevitz has a thoughtful analysis of the question raised by Jerry Anderson (on the property listserv and in the comments here) at the University of Chicago Law School Faculty Blog.

Timothy Sandefur comments on the case at the Pacific Legal Foundation's blog. [UPDATE:  Tim has a second post with some further thoughts on the case.]

Josh Blackman is happy that Justice Sotomayor may be more protective of property rights than Justices Breyer or Ginsburg.

Robert H. Thomas collects some links at the Inverse Condemnation Blog.

Ilya Somin comments on the case at the VC.

David Bernstein comments on the substantive due process aspects of the case at the VC here and here.

Ilya Shapiro of the Cato Institute discusses the case.

NPR's Nina Totenberg has a story on the case.

Steve Eagle comments here at PropertyProf.

UPDATING the list of commentary a few days later:

Eduardo Penalver has some excellent thoughts at Prawfs.

Tim Mulvaney has an op-ed on the case.

Ben Barros

[photo of Destin, Florida beach via Wikicommons]

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Supreme Court Denies Cert in Marshall Islands Takings Case

Earlier this week, the Supreme Court denied a petition for certiorari filed by Marshall Islanders seeking to reverse a 2009 ruling of the Federal Circuit.  The case has a fascinating factual context and raises interesting questions about the relationship between the Takings Clause and sovereign immunity.

As explained here by the WSJ Law Blog, the litigation was based on damages resulting from U.S. nuclear testing in the Marshall Islands in the 1940s and 1950s.  In the early 1980s, groups representing descendants of the Bikini and Enewetak Atolls sued the federal government for just compensation, asserting that the destruction of land occassioned by the testing constituted a taking of property under the Fifth Amendment.  During the course of this litigaiton, the United States and Marshall Island governments entered a Compact of Free Association, subsequently adopted by Congress, that purported to settle the takings claims.  In exchange for the United States' acceptance of responsibility and the establishment of a tribunal to administer the just compensation claims, the Marshall Islands agreed to settle all past, present, and future claims based on the testing.  Additionally, the compact documents provided that no United States court would have jurisdiction to entertain such claims.

The tribunal subsequently awarded a total of $949,210,000 to the plaintiffs, even though Congress only appropriated $45,750,000 for payment of awards.  See People of Bikini v. United States, 554 F.3d 996, 998 (Fed. Cir. 2009).  To date, less than 1% of the tribunal's award has been paid, and only $1,000,000 remains in the claims fund.  See id.  In 2006, the plaintiffs again brought suit, asserting that they still had not received just compensation for the takings of their property.  In 2009, the Federal Circuit affirmed a decision of the Court of Federal Claims to dismiss the suit, holding that the claims had been waived by the plaintiffs and that the federal courts had been stripped of jurisdiction to hear them in any event.

The cert briefs, which can be found on SCOTUSBlog (scroll to the bottom of the page), raise interesting issues concerning the Tucker Act, sovereign immunity, and the "self-executing" nature of the Takings Clause (for those who like that sort of stuff).

Mike Kent

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More Popular Outrage Today over Westboro

I'm sorry to keep beating this drum, but when the news demands it . . .

Today the newswires and blogs are crackling with outrage over the 4th Circuit's ruling that the man who sued Westboro Church for demonstrating at his son's funeral must pay Westboro's court costs ("Should Phelps' vile attacks on dead soldiers be rewarded with court fees? Court says yes"). 

As I posted earlier (see post on 3/26, below) about the Westboro demonstrations, when behavior -- including the use of public property -- is legal but normatively unacceptable, the inability of legal institutions to prevent it (even if that inability is appropriate) can lead to popular outrage and dangerous informal sanctions.  In the case of Westboro, it already has.  Expect more.

Mark Edwards

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The Sidewalk at the Corner of Property and Norms

In my last post, I wrote about the predictable malfunction legal institutions face when behavior regarding property is illegal but normatively acceptable: selective enforcement.  Today I want to write about the opposite dynamic -- behavior that is legal but normatively unacceptable – and the predictable problem it presents for legal institutions: 'popular justice.'  The state cannot (or at least, should not) prevent such behavior, because it is legal; but, in the absence of formal sanctions, a community might apply its own informal sanctions, sometimes violently (for those interested, I write about these dynamics in more detail here).

Consider the use of public property. Many cities formally prohibit performances for money on public sidewalks, but in many places, it is normatively acceptable for some aspiring talent to croon, twang and pass the hat.  Most likely the musician won’t be subject to formal sanctions, because the imposition of formal sanctions tends to follow the limits of normative acceptability, rather than the law.

Now imagine a religious zealot standing in the same spot, demanding that you repent or go to hell.  That behavior is probably legal regardless of local ordinances.  But, regardless of its legality, that behavior is also probably normatively unacceptable.  The state can’t impose formal sanctions on the zealot, so the community may impose informal ones.  Passers-by might cross the street, shoot hard stares or laugh.

Or much worse.  Members of the infamous Westboro Baptist Church proselytize from public sidewalks near soldiers' funerals, holding signs that say, among other charming things "Thank God for Dead Soldiers," "He's Going to Hell," and "God Hates Fags."  The hateful sect apparently believes God is punishing the United States for tolerating homosexuality.

The Fourth Circuit recently ruled that the First Amendment prohibited the father of a soldier killed in Iraq from imposing private legal sanctions on the group in the form of damages, after it picketed his son's funeral.  Although the Supreme Court recently granted certiorari, it seems highly unlikely that the Court will find that the group can be held liable, for reasons Daniel Solove explains here. 

If legal institutions can't allow formal sanctions against normatively unacceptable behavior, the predictable consequence is that ‘popular justice’ will follow.  And, in fact, is has.  One motorcycle club has made it its mission to drown the sect out at soldiers' funerals.  More ominously, in at least one instance, on-lookers have violently attacked demonstrating sect members. 

The controversy has been framed as a First Amendment issue, but the right to use public space is also property rights issue.  The inability -- appropriate inability, but inability nonetheless -- of legal institutions to sanction legal but normatively unacceptable behavior with regard to the use of public property has predictably lead to vigilantism instead.  The question now facing the Supreme Court is: how, if at all, should legal institutions respond?  It can't change the normative acceptability of the sect’s behavior.  It must decide, therefore, whether to insist upon the legality of that behavior.  It will be fascinating to see whether strongly felt norms drive a change in the right to use public space. 

Mark Edwards

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Norms, File-Sharing and the Latest from the Thomas Case

Legal institutions struggle when the legality of behavior, and the normative acceptability of that behavior, diverge.  Sometimes behavior that is formally illegal is normatively acceptable; sometimes behavior that is legal is normatively unacceptable.  Want proof?  When you drive home today, drive 1 mph under the speed limit.  You'll find that behavior that is illegal -- speeding -- is normatively acceptable, but that legal behavior -- driving below the speed limit -- is normatively unacceptable. 

Legal institutions facing those divergences falter in predictable ways.  Behavior that is legal but normatively unacceptable cannot trigger a formal response from legal institutions, so tends to trigger 'popular justice' responses -- sometimes as mild as tailgaiting, sometimes as severe as violent vigilantism.  Behavior that is illegal but normatively acceptable usually does not trigger a formal enforcement response, but it can -- at the enforcer's discretion.  The danger here is selective enforcement.  Consider again the speeding example: what is racial profiling but selective enforcement against illegal but normatively acceptable driving behavior?

The same dynamic is at work with regard to property rights, as the recent lawsuits brought against Jammie Thomas and Joel Tennenbaum demonstrate.  At least among the young and computer-savvy, non-commercial file-sharing seems to be normatively acceptable, even though it is illegal.  According to the Electronic Freedom Foundation, one in five American Internet users is a file-sharer.  Ask the next class you teach for a show of honest hands, and you'll probably find that estimate accurate.

The predictable danger when there is is such a wide divergence between the legality and normative acceptability of behavior is selective enforcement.  Courts aren't good at avoiding being used as vehicles for selective enforcement.  In both the Thomas and Tennenbaumcases, Judges Davis and Gertner openly lamented their inability to prevent their institution from being so used.  Judge Davis in the Thomas case expressed serious misgivings about the unfairness of singling Thomas out for liability, stating that Thomas "acted like countless other Internet users.  Her alleged acts were illegal, but common."  Judge Davis recently slashed the damagesawarded against Thomas by 97%, from $1.92M to $54,000.  He clearly is intent on fighting back against the perceived unfairness of selective enforcement against illegal but normatively acceptable behavior.  But the RIAA isn't giving up, either; they have filed a motion for new trial on damages.

But even the RIAA must realize that it cannot hope to use the courts to selectively enforce against normatively acceptable behavior forever.  Usually, eventually, property rights catch up to notions of normative acceptability.

Mark Edwards

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