PropertyProf Blog

Adverse Possession, Takings and the State

William Marra, Harvard Law School, has posted Adverse Possession, Takings, and the State on SSRN.

Here's the abstract:

Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be allowed to adversely possess land in the same manner as private individuals? Second, when the government commits adverse possession, does this constitute a constitutional “taking” that requires the payment of just compensation? These two questions are of practical importance because they affect the resolution of numerous property claims, and they are of theoretical significance because they implicate both the appropriate scope of private property rights and the proper relationship between the individual and the state. Part I provides an introduction to adverse possession, and Part II studies the law of government adverse possession, detailing how nearly every jurisdiction permits the government to adversely possess private land in the same manner as private individuals. But as Part III demonstrates, government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions — that the landowner has a property rule entitlement to her land, that the trespasser develops robust reliance interests, and that society’s primary interest is in quieting title — that do not necessarily hold when the government is the adverse possessor. Part IV concludes that because the current rules of adverse possession incentivize government trespass upon private land, special rules should apply to the government. When the government adverse possessor trespassed in good faith, a longer statute of limitations should apply; when the government trespassed in bad faith, it should be entirely denied the right to adverse possession. One quick fix to the problem, proposed by a federal court and endorsed by some commentators, is to call government adverse possession a constitutional taking and require the state to pay just compensation. Part V explains that the problem cannot so easily be wished away, and contends that the text of the Constitution, its history, and Supreme Court precedent all suggest that government adverse possession is not a taking. The solution to the problem presented by government adverse possession rests in righting property law, not distorting constitutional law.

By way of comparative comment:

• It is interesting how "takings" issues are such a significant part of constitutional discourse in the US, and in my nearer neighbour, Australia.  New Zealand, without a formal written constitution, and without any "takings" provision, is in a different world in this sense.  I have recently been exploring how the absence of this regime makes it easier to "propertise" resources (and also regulate them without having to worry about compensation issues) for a forthcoming article for the New Zealand Universities Law Review.
• Adverse possession was a part of my NZ Land Law course, as it remains part of US property courses.  In New Zealand the law is statute based, and there would be very few adverse possession cases in New Zealand: one of the recent ones concerned a fairly isolated block of farm land with a fence in the wrong place (rather than the "squatter's rights" (of an abandoned house, for example) I imagined at law school).
• Marra hasn't steered away from takings.
• An empirical study of adverse possession (comparative, Commonwealth or otherwise) would seem to deserve attention.
• 

Thomas Gibbons

Rule on Airspace and the Takings Clause

Troy A. Rule (Missouri) has posted Airspace and the Takings Clause on SSRN.  Here's the abstract:

This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often secure their non-physical uses of neighboring airspace without having to compensate neighbors by simply imposing height restrictions or other regulations on the space. The Supreme Court’s existing regulatory takings rules, which focus heavily on whether a challenged government action involves physical invasion of the claimant’s property or destroys all economically beneficial use of the property, fail to protect private landowners against these uncompensated takings of negative airspace easements. In recent years, regulations aimed at keeping private airspace open for specific government uses have threatened wind energy developments throughout the country and have even halted major construction projects near the Las Vegas Strip. This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.

Ben Barros

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Be Warned

I'm about to teach Kelo to my Property students. They'd all remember the hubbub about the case, right?  It was only a few years ago, right?  Wrong.  Many of them were in 9th grade.  I asked the class how many people remembered the case.  Only about 15% raised their hands.  Be warned.  We are old.

Ben Barros

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Rethinking Kelo

In case you missed it last week, Jeff Bendict, author of a book about the Kelo case and the failure of New London's development project, has reported that one of the four Connecticut Supreme Court justices who voted against Susette Kelo recently said, "Had I known all of what you [Benedict] just told us, I would have voted differently." 

In the comments on the blog, Tim Iglesias makes a nice point:

As anyone who works with real estate development knows, litigation can kill projects. It's hard to sort out how much the litigation that Ms. Kelo brought and pursued all the way to the USSC contributed to the failure of the proposed redevelopment project. I don't see how anyone could confidently state that the project would have failed if the lawsuit had not been brought.

Steve Clowney

Kelo in the News II

Justice Richard N. Palmer of the Connecticut Supreme Court, one of the four justices who voted with the 4-3 majority against Susette Kelo and her neighbors, had a face-to-face encounter with Ms. Kelo and Jeff Benedict, author of Little Pink House, at a 2010 dinner party. According to Benedict, the Justice said "Had I known all of what you [Benedict] just told us, I would have voted differently."

Justice Palmer later provided some context for the remark.  "Those comments," he wrote, "were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city's development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped." He later added that he could not know of those facts "because they were not yet in existence."

Benedict's take on the encounter is here.

Steve Clowney

(HT: Sarah Waldeck)

Patashnik on Bringing a Judicial Takings Claim

Josh Patashnik (Stanford student) has posted Bringing a Judicial Takings Claim on SSRN.  Here's the abstract:

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the Supreme Court breathed life into the doctrine of judicial takings – the idea that judicial decisions, like executive and legislative action, might be deemed to take property rights under the Takings Clause of the Fifth Amendment. Before the case, judicial takings were the province only of law review articles, a few offhanded mentions in Supreme Court concurring and dissenting opinions, and one or two cases in the lower federal courts. Stop the Beach Renourishment firmly established the proposition that the federal Constitution provides some protection against judicial redefinition of property rights, though the Court was unable to determine whether that protection emanates from the Takings Clause of the Fifth Amendment or the Due Process Clause of the Fourteenth Amendment. In this Note, I seek to shed some light on the unexamined questions of how and where, in the wake of that case, a party aggrieved by a judicial property law decision might actually go about bringing such a claim, and what remedy she might hope to obtain. I conclude that a plaintiff bringing a judicial takings claim (or a due process claim rooted in judicial takings) should be able to bring her case in federal court, notwithstanding the barriers the Supreme Court has erected that keep the vast majority of federal takings litigation in state court. I further argue that while the Eleventh Amendment likely precludes a federal court from awarding money damages to a judicial takings plaintiff, equitable relief – in the form of invalidation of the offending state court opinion – should be available.

Steve Clowney

Sprankling on the Interaction Between the Fifth and Third Amendments

Thomas Sprakling (Columbia - student) has posted Does Five Equal Three? Reading the Takings Clause In Light of the Third Amendment's Protection of Houses (Columbia Law Review) on SSRN.  Here's the abstract:

The Supreme Court’s 5-4 decision in Kelo v. City of New London broke new ground by holding that the seizure of owner-occupied homes as part of a plan to foster economic development was a taking for “public use” under the Takings Clause of the Fifth Amendment. Kelo’s many critics have yet to advance a constitutionally-grounded rationale for why homes should receive special protection from condemnation. This Note argues that the Third Amendment’s solicitude for the home provides a constitutional basis for distinguishing between homes and the other forms of “private property” covered by the Takings Clause. The Amendment, which provides that “[n]o soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law,” shares both historical and textual links with the Clause. These connections suggest the judiciary should apply a form of heightened scrutiny similar to the “meaningful” review standard proposed by Justice Kennedy’s concurring opinion in Kelo when determining whether the government’s seizure of an owner-occupied home is for “public use.”

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

Christie on Stop the Beach

Donna Christie (Florida State) has posted Stop the Beach Renourishment v. Florida Department of Environmental Protection: Much Ado About Nothing? (Stetson Law Review) on SSRN.  Here's the abstract:

Florida’s beaches are critical to the State's economy and provide significant protection for upland property, but erosion from natural forces, coastal development, and construction and maintenance of navigation inlets threatens the beaches’ ability to provide these vital services. Of the 825 miles of sandy beach in the State, over 485 miles (about fifty-nine percent) are eroding, with 387 miles of beach (about forty-seven percent) experiencing ‚critical erosion. To protect and manage critically eroding beaches, the Legislature enacted the Beach and Shore Preservation Act (BSPA) directing the State to provide for beach restoration and nourishment projects. The State has spent at least six hundred million dollars on beach erosion control and beach restoration, and the Florida Department of Environmental Protection (DEP) now manages over two hundred miles of restored beaches. In 2006, the Florida First District Court of Appeal put the Florida Beach Erosion Control Program in jeopardy, however, by finding that the BSPA deprived the beachfront property owners of their constitutionally protected riparian rights without just compensation. The case eventually worked its way to the United States Supreme Court. But in the U.S. Supreme Court, the issue of focus was not so much whether riparian rights had been unconstitutionally taken - a unanimous Court agreed they had not - but whether the constitution encompasses a doctrine of judicial takings. This article reviews the Florida and U.S. Supreme Courts' dispositions of the case. Although the State prevailed in both cases, from the Florida perspective, the case left many questions about the legal status of beach restoration and application of the BSPA. At the U.S. Supreme Court level, the case provided a flimsy vehicle for Justice Scalia to introduce his theory of judicial takings. Nevertheless, none of the Justices categorically denied the existence of the concept of a judicial taking; four Justices specifically adopted the doctrine, and six Justices agreed that state supreme court decisions that eliminate existing property rights might be unconstitutional. In the end, the case left the law unsettled in a way that will likely incite property rights advocates to continue to cause "much ado".

Steve Clowney

Spillway Takings Claims

Commentator Jeff gives an update:

Notwithstanding the existence of flowage easements on the affected properties, there is still a fair chance that the owners of the land flooded by the opening of the Morganza Spillway will file a takings suit against the government. The owners of the Missouri farmland flooded when the Corps breached the Birds Point levee near Cairo, IL a couple of weeks ago have already filed a takings suit in the U.S. Court of Federal Claims (Case No. 11-275), even though those properties are also located in a floodway and are subject to flowage easements.

Steve Clowney

Mulvaney on Proposed Exactions

Tim Mulvaney (Texas Wesleyan) has posted Proposed Exactions on SSRN.  Here's the abstract:

In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it.

Ben Barros

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Towns in the Floodway

In case you've been living in a cave for the last few months, it's been raining a lot in the middle of the country.  Here in Lexington, we've got lots of wet basements and leaky roofs; But along the Mississippi River, the consequences of too much water are far more serious.  In 1927, for example, the river flooded 27,000 square miles, displaced 600,000 people, killed 250, and caused $400 million in property damage.

As water levels of the Mississippi near record levels, the Army Corps of Engineers is taking steps to ensure that there isn't a repeat of 1927.  This weekend, the corp opened the Morganza Spillway for the first time in 40 years.  The Morgnaza is a huge flood control system that can divert water out of the Mississippi and away from New Orleans and Baton Rougue.  Unfortunately, the water has to go somewhere else.  The water that flows out of the Morganza will pour across farmland and destroy homes before heading into the Gulf of Mexico.

The property question is, what happens to the towns and farmland in the floodway?  Why can the government flood homes here to save property there?  Does the flooding caused by the Corp amount to a taking?

It seems that it does not.  According to Tulane University geographer Richard Campanella, the federal government purchased flow easements from the property owners in the 1950s that allows it to store water on the land. The Corp also sends residents yearly written notices to remind them of the possibility of opening the floodway.  Despite the threat of flooding, a number of folks took the calculated risk to invest in the flood plain.

Steve Clowney

The Institute for Justice Wins California Blight Case

The Institute for Justice helped the owner of a small boxing gym in National City, California file suit challenging the municipality's redevelopment plan.  National City intended to declare 700 properties as "blighted," level the entire area, and then construct new condominiums.  However, a trial court in San Diego found that National City lacked a legal basis for the blight declaration.  Ilya Somin at the Volokh Conspiracy notes that the "National City case is a particularly egregious example of the widespread phenomenon under which local governments use of dubious blight designations to condemn property and transfer it to politically influential developers and other interest groups. The City declared a vast area to be “blighted” on the basis of extremely dubious evidence, and then refused to even make the evidence available for public scrutiny."  Here's the IJ's press release.  And here's their video on the case:

Many are trumpeting this case as a victory for post-Kelo state-level reforms.  Before jumping on that bandwagon, I think it's important to note that the Kelo Court, for all the grief the its taken, probably would have come out the same way on this case.  Stevens' opinion takes process seriously.  If National City was as loosey-goosey with then blight designation as Somin and other indicate, then it doesn't get by Stevens (or Kennedy).  Kelo isn't perfect, but it didn't wipe-out property rights. 

Steve Clowney

Byrne on the Stop the Beach Plurality

Peter Byrne (Georgetown) has posted Stop the Stop the Beach Plurality! (Ecology Law Quarterly) on SSRN.  Here's the abstract:

The plurality opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection articulated a new doctrine of "judicial takings," and justified it with arguments drawing on text, history, precedent, and "common sense." This essay argues that the opinion falls makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.

Steve Clowney

Impediments to Rebuilding in Japan

I had the great good fortune of having my colleague Ken Port, Director of William Mitchell's Intellectual Property Institute and Japanese law scholar-extraordinaire, visit my Comparative Property Rights seminar this week.  Besides some very interesting historical information regarding Japan's adoption and adaptation of the German civil law system in the 19th century, we focused on some unique features of Japanese property law that may make recovery and rebuilding in Japan more difficult than it would be otherwise.

One impediment arises from the Japanese version of concurrent estates.  Japanese law recognizes one version of co-ownership of property, which is without precise parallel to any of the estates recognized in the Anglo-American common law.  Each co-tenant has the right to use the property in proportion to her share, but no co-tenant can alter the property without the permission of the other co-tenants.  Moreover, there is no right of survivorship among co-tenants; the deceased tenant's share passes by will or through intestacy. 

The problem with this form of co-ownership in post-tsunami Japan should be immediately apparent.  Co-owned property cannot be altered without the agreement of all of the co-tenants.  Therefore, rebuilding cannot take place until the co-tenants reach agreement.  In the tsunami stricken regions, even if the property itself can be identified without boundary markers and in a land physically altered by the tsunami, locating all co-tenants is likely to be extremely difficult if not impossible.  Many co-tenants are, unfortunately, likely dead; their interests must be distributed through will (often destroyed with the home) or through intestacy.  Locating heirs may be difficult if not impossible, since many heirs may also be dead, and their heirs must be located.   After that nearly impossible task has been completed, all of the interest holders must reach agreement on whether, and how, to rebuild or attempt to sell.

In the United States, governments faced with insurmountable coordination problems and transaction costs might cut through them by exercising the power of eminent domain.  Although Article 29 of the Japanese Constitution authorizes the government to take private property in return for just compensation, the ability of the government to exercise that power is severely limited compared to the United States, both legally and normatively.  It is limited legally because civil courts in Japan lack the contempt power, so they lack a means of enforcing their rulings.  Therefore, unlike in the United States, in Japan courts cannot send armed agents of the state to enforce an eviction order. 

More importantly, normatively, there is deep opposition to the exercise of the eminent domain power in Japan -- much deeper than in the U.S.  Consider, for example, what happened when the Japanese government tried to build Narita, the main airport serving Tokyo, by using eminent domain to expel inhabitants of a small village.  The plan met with widespread, and sometimes violent opposition, not only from those displaced but from those the airport was intended to serve.  I quote from Ken's book to describe the level of opposition :

The airport was supposed to open on March 30, 1978. . . . Hurling Molotov cocktails and driving a flaming vehicle through the perimeter of the airport, [protesters] briefly occupied the completed control tower.  They proceeded to destroy most of the air traffic control equipment and delayed the opening of the airport for two months. . . . . Until the early 1990's, Narita Airport appeared to be under armed siege.  The entire airport was surrounded by unclimbable fences, lookout towers and armed police in full riot gear.

During the decades of protests, 3 policemen and several protestors were killed. 

In other words, the exercise of the eminent domain power in Japan is legal, but often socially unacceptable.  Therefore, to rebuild after the tsunami, Japan may have to undergo something much more difficult and more fundamental than just changes in law; it may have to undergo a change in norms as well. 

Mark A. Edwards

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Zoning, Amortization Periods, and Regulatory Takings

We covered non-conforming uses in class today, specifically the AVR, Inc. v. City of St. Louis Park case.  My students, having read Lucas in Constitutional Law a few weeks ago, posited that a rezoning would not constitute a regulatory taking.  I disagreed.  My argument (and please consider that I have not studied Constitutional Law since 1999) is that if: (1) a municipality changes the zoning of an improved parcel of land (for example, rezones land occupied by a ready cement plant as residential); (2) the re-zoning diminishes the value of the underlying real estate; and (3) the municipality forces a change in use; then a compensable regulatory taking has occurred. 

Based on approximately 20 minutes of research, I can't find any cases where this has occurred.  I posit that this is because states either: (1) protect lawful nonconforming uses, thus preventing the above scenario from occuring frequently enough for me to easily locate a case; or (2) have adopted amortization periods, which are predicated on the idea that the value of the use will fully amortize over a certain period of time, so that when the prior lawful use is brought to an end, there is no loss to be compensated.

I think that my conclusion is consistent with Penn Central.  If there is a lawful nonconforming use, then the owner had an investment-backed expectations in that use.  If the government cuts short that use, then there is a compensable taking.

I am sure someone has written a brilliant article on this topic that I have not yet found.  Any references to said article or other feedback would be much appreciated.

Tanya Marsh

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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

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Mulvaney on Judicial Takings

Timothy M. Mulvaney (Texas Wesleyan) has posted The New Judicial Takings Construct on SSRN.  Here's the abstract:

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an "established" property right "no longer exists" may amount to an unconstitutional taking. The opinion draws on two fundamental threads of Justice Scalia’s property jurisprudence: the first is the notion of property as a pre-political, immutable partition between individual interests and permissible government action; the second is a general distrust for the state courts that are tasked with declaring these individual property rights.

This Article has two primary purposes. First, it compares the judicial takings standard established by the plurality to previous discussions of federal constitutional review of state court property declarations, both in prior judicial decisions and in the academic literature. Second, it considers whether the plurality’s standard could be interpreted as applicable not only to state court decisions that allegedly result in a private-to-public reassignment of property, as the petitioners in Stop the Beach Renourishment claimed, but also to two additional instances: (i) adjudications of property disputes between two private parties or (ii) any allegedly improper judicial change in non-property areas of law where damages would serve as the remedy. The Article concludes that the plurality’s judicial takings standard arguably is inclusive of more state court rulings than any standard presented by earlier courts and commentators. Depending upon the breadth of its reach, this standard could serve to chill the ordinary operation of the common law system as responsive to changing conditions.

Ben Barros

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Disunion

Frequent readers may remember that an important tenet of my property teaching philosophy is that the struggle over property rights has a central place in history.  I've argued that we might undersell the importance of property rights by focusing so intensively on the doctrinal trees that we miss the political-economic forest.

One way I like to discomfort my students, and bring into stark relief the historical importance of property rights, is by examining the emancipation of slaves through the lens of the Takings Clause. 

The Takings Clause may seem (and, I think, is) a somewhat callous and inadequate lens through which to view the abject horror of slavery, but that's exactly how some framed the issue 150 years ago.  In a debate on the Senate floor, Henry Clay (for one) argued that emancipation of slaves would be a taking of private property, requiring just compensation of the slave owners.  Anticipating the reply that emancipation could not be a taking because humans could never have legitimately been property, Clay said (I like to imagine coolly), "That is property which the law says is property." 

In both my first year course, and my Comparative Property Rights seminar, I make my students debate that proposition.  I ask them simply: Is it true?  Most say no.  So then I ask: If law can't tell us what is property, then what can?  No one, myself included, seems to be able to answer that.

All that is a prelude to telling you that for the past few weeks, the New York Times has been running a wonderful feature, Disunion, which provides a day-by-day analysis, using primarily contemporary accounts, of the descent into the Civil War immediately preceeding and following Lincoln's election in 1860.  For history buffs like me, it's fascinating.  I find myself more eagerly concerned about the daily news from November 1860 than the news on the front page. 

The news from this week (minus 150 years) has been particularly ominous.  Southern state legislatures are meeting to 'discuss' secession in the wake of Lincoln's election, but the extreme rhetoric of the meetings leaves no doubt that horrible violence is at hand.  Members of the cabinet of the sitting President are preparing to join them.  The federal government is teetering. 

Meanwhile, President-elect Lincoln has remained maddeningly silent.  Finally, the pressure becomes unbearable, and through Illinois Senator Lyman Trumbull, Lincoln attempts to reassure the South: "when Trumbull told the crowd that under Lincoln, all the states will be left in complete control of their own affairs, including the protection of property, those in the know believed they were hearing the words of the president-elect."  The meaning of Lincoln's pledge to protect property was unmistakable.  Lincoln was attempting to tell the South that, in Clay's words, that was property which the law said was property -- including human beings.  For Lincoln's admirers, that pledge may come as a shock.  He was not yet fully committed to emancipation.   

But, of course, nothing Lincoln could say or do would reassure the Southern legislatures.  They didn't trust him or the abolitionists who supported him.  War was on the horizon. Within five years of that week in November, 600,000 Americans would be dead.

As I like to say to my students, when it comes to property rights, damn right, there will be blood.  

Interestingly, in hate-laced rhetoric that resonates today, secessionists cast Lincoln and Vice President-elect Hamlin as something 'other' than bona fide Americans.  Southern media and politicians constantly accused Hamlin in particular of having “black blood in him,” or being descended from Native Americans.  One Southerner wrote to Lincoln, offering to buy the "intelligent mulatto boy" Hamlin from him.

The Disunion series is a fantastic teaching tool on lots of levels, but it is a treasure trove on the historical centrality of property rights.  Check it out.

Mark A. Edwards

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Barros on the Complexities of Judicial Takings

I've posted a draft of my article The Complexities of Judicial Takings on SSRN.  Here's the abstract:

In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.

In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.

I've already touched on some of these issues in various blog posts (e.g., here).  Comments of all sorts would be very welcome.

Ben Barros

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