Monday, May 17, 2010

Ely on Stevens, Kagan, and Property Rights

James W. Ely Jr. (Vanderbilt) has a column in today's Washington Times titled Stevens, Kagan and property rights. (H/T Ilya Somin).  Ely remarks that "Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals," and goes on to discuss Stevens' positions in regulatory takings and public use cases.  At least since the mid-1980s, Stevens has certainly been the leader of the pro-government wing of the Court on takings cases, and he has written some of what are (in my humble opinion) the worst regulatory takings opinions in recent memory.  Even though the ultimate holdings in Keystone and Tahoe Sierra are probably correct (especially because both were facial challenges), Stevens' majority opinions in each are terrible, as was his dissent in Lucas.  This said, there is one passage in Ely's op-ed that strikes me as misleading:

In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level. Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development. The beneficiaries likely will be corporations and others with political clout. In practice, developers and local officials often work in tandem to eliminate neighborhoods and displace residents in order to achieve hypothetical economic gains.

While I'm not a big fan of Kelo, I don't think it is true that Justice Stevens eviscerated the public use limitation - the Supreme Court as a whole eviscerated it in unanimous opinions in Berman and Midkiff.  I've never seen a convincing argument why the result in Kelo was not mandated by Berman and Midkiff.  So it seems unfair to place all of the blame on Stevens.

It will be very interesting to see what happens with the Court's liberal wing on takings cases after Stevens' departure.  Stevens has so dominated this area that it is hard to pin down exactly where Justices Ginsburg and Breyer stand -- sure, we have their votes, but I can't recall either writing an opinion in a takings case.  Justice Sotomayor and potential Justice Kagan are relatively blank slates on regulatory takings issues.  It may be that this issue has become so ideological that the liberals will consistently vote against property owners.  On the other hand, there is good reason to think that the liberals may be sympathetic to property owners in at least some contexts.  After all, Justice Brennan wrote what is probably the most pro-property-owner opinion in any takings case (his dissent in San Diego Gas & Electric).  We might get a preview of what is to come when the Court decides Stop the Beach sometime in the next couple of weeks.  Because Justice Stevens recused himself, the Court's liberal wing won't be able to follow his lead.

Ben Barros

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May 17, 2010 in Takings | Permalink | Comments (2) | TrackBack (0)

Friday, May 7, 2010

Cert Petition in Just Compensation Case

Ilya Somin at the VC has a post describing a cert petition in a potentially important Just Compensation case, City of Milwaukee Post No. 2874, Veterans of Foreign Wars v. Redevelopment Authority of the City of Milwaukee.  The case involves the "undivided fee" rule, which can lead to gross undercompensation of holders of under-market leases.  Gideon Kanner has a post on the case, as does Robert Thomas at the Inverse Condemnation Blog.

Ben Barros

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May 7, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Eminent Domain and the Political Process

Can the political process protect property owners from the use of eminent domain?  Consider this story from Fox News:

Officials in Auburn, New York threatened to possibly use eminent domain to force property owners to sell their land so a developer could build a multi-million dollar hotel and conference center. But in a surprise vote, the Auburn Industrial Development Agency unanimously voted not to use eminent domain by a vote of 9 to 0.

As negotiations continued with three property owners over the past several months, it appeared that Auburn would have to resort to eminent domain to clear the way for the proposed 88 room, $11 million hotel and conference center. City officials said the hotel would bring jobs, new tax revenue, and improve the city, which is located in upstate New York, as it plans to launch a music festival in two years.

There was at least one hold out, Mike Kazanivsky, who owns a barren grass strewn lot that he says he bought to build a small miniature golf and ice cream amusement park. When we stood on his property two weeks ago, he wept at the thought that he could be forced to sell his land for a private project. . . .

He insists he does not want to sell his plot of land.

“Everyone kept saying you have to put a figure on it, you have to put a figure on it. How do you put a figure on something you don’t want to sell?”

He insisted “I never wanted to stop progress, but I didn’t want them to take this from me.” . . .

So, to recap, the city proposes taking property through eminent domain, then backs off after the issue becomes controversial.  So, in at least one case, the political process did protect the property owner.  But the plural of anecdote is not data - the political process worked in this case, but might not in others.

(H/T Erika Lauer)

Ben Barros

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May 7, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)

Saturday, April 24, 2010

The Extraordinary Story of Dr. Karel Des Fours Walderode, Part II

When we last left off, our protagonist Dr. Walderode was a citizen and permanent resident of the newly created Czech Republic.  [For those keeping score, his family estate in Bohemia had, by this time, been situated at different times in six different countries, and controlled at various points by an empire, a fascist dictatorship, a communist dictatorship, and -- on 3 occasions -- a republic].

In 1992, having met all the conditions for restitution of property seized under the Benes Decrees, Walderode filed his claim for restitution of his family estate, parts of which were now owned by 4 Czech state agencies, one town, and several private companies.  And that, believe it not, was when things started to get really complicated. 

Walderode's petition for restitution was a political hot potato, and then-Prime Minister, now President Vaclav Klaus, who is notoriously against restitution claims under the Benes Decrees, decided to enter the fray.  He sent a "legal opinion" to the relevant agencies, stating that Walderode's claim was "legal" but "unacceptable."  Nevertheless, for a time Walderode was successful: the Czech Central Land Office granted his petition, and he took possession of his lands in September 1993.

But opponents of the restitution did not give up.  For two years they kept up the political pressure, and finally in November 1995 the Central Land Office annulled its previous decision and the petition was re-opened.  In February 1996, the Czech parliament passed what was popularly known as "Lex Walderode," amending the restitution law to require that claimants could demonstrate uninterrupted Czech citizenship from the time their property was seized under the Benes Decrees.  Because Walderode's citizenship was revoked by the Communists when he went into exile, he could no longer meet the conditions for restitution.  At age 92, Walderode lost his property again.

That year, he took his case to the UN Human Rights Committee; by the time it issued its opinion in his favor in 2001, he was already dead.  The Czech government did not re-open the case. 

Walderode's surviving spouse, Dr. Johanna Kammerlander, is a lawyer and has continued to fight for restitution of the estate.  In September 2008, the Czech Supreme Court found in her favor -- with regard to about a half acre of forest.  But the precedent set in that case is expected to lead to the return of much of the estate.  

We'll have to see what happens: the extraordinary story isn't finished yet.   

Mark Edwards

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April 24, 2010 in Miscellaneous, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, April 23, 2010

The Extraordinary Story of Dr. Karel Des Fours Walderode

If the history of the 20th century in Europe could be encapsulated in the life of one man, that man might be Dr. Karel Des Four Walderode. 

He was born in 1904 and died in 2000, and his life sat at the intersection of the social and political upheaval that radically transformed, and re-transformed, and re-transformed again property rights in Europe.

Of French and German descent, he was born in the Kingdom of Bohemia, then part of the Austro-Hungarian empire, where his wealthy family had lived since the 17th century and owned, among other property, vast estates and a castle.  Until age 14 he was a citizen of the Austro-Hungarian empire.  But the Austro-Hungarian empire ceased to exist in 1918 with the reformation of Europe following World War One.  Walderode found himself situated in the newly formed Czechoslovak Republic, of which he was now a citizen.

In 1939, Germany invaded and occupied the parts of the Czechoslovak Republic it had not already grabbed under the Munich Agreement of 1938.  Germany dissolved the Czechoslovak Republic, and proclaimed the creation of a new state: the German Protectorate of Bohemia.  Walderode now found himself not only living in the German Protectorate of Bohemia, but also declared by Germany a German citizen, because his first language was German. 

In 1945, with the defeat of Germany, the German Protectorate of Bohemia ceased to exist.  The Czechoslovak Republic came back into existence.

The restored democratic Czechoslovak government under Edvard Benes issued what are now known as the Benes Decrees.  Under the Benes Decrees, people of German descent were presumed to have aided the German occupation.  As a result, they had their property confiscated without compensation, had their citizenship revoked, and were expelled from the country (although expulsion is not required under the Decrees, people who lost their citizenship were in fact expelled).   If, however, people of German descent could prove their loyalty to the Czechoslovak Republic during occupation, they could retain their citizenship and stay in the country.  Walderode was one of the very few able to prove that he remained loyal to the Czechoslovak Republic during the occupation (even though he had been conscripted for a year into the Wehrmacht), so he retained his Czechoslovak citizenship and was not expelled.  However, he still lost his property rights in his family's estates.  [You can read more about the seizures of property and expulsions under the Benes Decree in this excellent article by Timothy William Waters].  

In 1948, the Communists seized power in the Czechoslovak Republic, eventually renaming the country the Czechoslovak Socialist Republic.  Walderode was forced into exile by the Communists, who didn't care for his privileged lineage and most certainly were not impressed by that fact that he had recently proven his loyalty to the democratic government that they had just overthrown.  When he went into exile, the Czechoslovak Socialist Republic revoked his citizenship.

In 1991, after democratic government had been restored, he returned to a country now named the Czechoslovak Federative Republic and settled in Prague.  He was made a Czechoslovak citizen again in 1992.  Also in 1992, the Czechoslovak Federative Republic passed a law for the restitution of agricultural and forest property seized under the Benes Decrees, provided the claimant could demonstrate: (1) he had been a citizen at the time the property was seized; (2) he was now a permanent resident of the country; (3) he was loyal during the German occupation; and (4) he was a citizen at the time he submitted his claim for restitution. 

6 months later Czechoslovak Federative Republic itself ceased to exist, with the creation of separate Czech and Slovak Republics.  Walderode now found himself living in the Czech Republic.  The Czech Republic retained the restitution law.  Walderode met all four of the conditions for restitution, and so submitted his claim.  But . . .  .

What happened next will appear in Part II of this post!

Mark Edwards

April 23, 2010 in Miscellaneous, Takings | Permalink | Comments (3) | TrackBack (0)

Tuesday, April 20, 2010

Hudson on The Public Trust and the Lucas Remand

Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand on SSRN.  Here's the abstract:

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

Ben Barros

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April 20, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, April 19, 2010

Historic Preservation and Takings

My property class did Penn Central late last week.  With impeccable timing, the St. Petersburg Times ran a story this weekend about a somewhat similar lawsuit arising out of local historic preservation regulations.  The City of St. Petersburg has designated the Hotel Detroit, built in the late 1880s, as an historic property.  According to the owners of the building, which is now used to house condominiums, the designation effectively thwarts their plans to demolish the structure and build a new high-rise in its place.  As this story shows, more than 30 years later, the debates in Penn Central remain alive and well.

Mike Kent

P.S.  Thanks to Stetson law student Megan Robison for bringing the case to my attention.

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April 19, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)

Thursday, April 15, 2010

Is that Property which the Law Declares to be Property?

In response to Virginia's celebration of confederate history month, and in connection with teaching takings this week, yesterday I had my property class read Henry Clay's argument against the emancipation of humans held as slaves.  Clay's argument was that if emancipation were to occur, it would constitute a taking, and thus was impermissible under the 5th Amendment without just compensation.  Since the government was not prepared to provide such compensation, emancipation would be an illegal and unconstitutional act.

Anticipating the rejoinder that there could be no taking if the thing taken were not property, Clay said, "That is property which the law declares to be property."  For at least 200 years, he said, both before and after the ratification of the Constitution, humans of African descent had been recognized as private property.  They were not just uncompensated labor; they could be alienated, possessed exclusively, and used like other forms of private property, including as security for debt.  Generations had relied on the law, and the law told them that slaves were property. 

Now, I was not about to ask first-year law students to argue the position that the emanicpation of slaves without full compensation of their former owners was a  legally wrong, unconstitutional act.  So, I took that position (and, in case there is any misunderstanding here, I'll say now what I said to my class: of course I don't think emancipation was wrong, and I'll kick the @*&%$ of anyone who says otherwise).  I then told my class to explain, if they thought I was wrong, why.

I made them focus on whether slaves had ever really been property, as the law had said they were.  I did not let them argue too long that the emancipation was not a taking (in the sense that it was merely a regulation that didn't go 'far enough'), or that compensation had already been provided through the slave's labor.  There are good arguments for those positions, perhaps, but they also allow us to dodge Clay's provocative claim.  So I insisted they tell me: is that property which the law declares to be property?   

It was a fascinating discussion, particularly in light of the typical skepticism with which my students had regarded the idea of unenumerated rights the week before when discussing zoning.  I'm as skeptical of 'natural law' as the next product of the Enlightenment, and yet . . . . try as we might, we just could not accept that humans had ever legitimately been property simply because the law had declared it.  But if that's true, then what is the source of authority that says otherwise?  Something greater than the Constitution?  And if we say yes, aren't we acknowledging and defending the existence of unenumerated rights, whether implied in the Constitution or not?  Isn't that the essence (so to speak) of natural law?

Regardless, it was a fascinating exercise, and one I highly recommend for your property classes.

Mark Edwards

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April 15, 2010 in Property in the Human Body, Property Theory, Takings, Teaching | Permalink | Comments (4) | TrackBack (0)

Tuesday, April 13, 2010

Neighbors v. Neighbors in New Jersey Beach Renourishment Dispute

The AP has a great story about a controversy brewing in Long Beach Island, New Jersey.  The beach is eroding, placing some beachfront homes at risk and endangering the community’s main recreational attraction.  But renourishment of the beaches would create dunes that would block some beachfront owners’ views of the beach.  When a nearby town used eminent domain to take an easement from some holdouts, the trial court gave a huge compensation award to the property owners.  So now the mayor and town officials of Long Beach Island are encouraging people to convince, and perhaps harass, their neighbors who are holding out.

Ben Barros

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April 13, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)

Friday, April 9, 2010

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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April 9, 2010 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, April 8, 2010

The General Average and Necessity

Over at CoOp, Gerard Magliocca has an interesting post comparing the maritime doctrine of general average, where some compensation is owed to people whose property is destroyed to save a ship, and the property doctrine of necessity, which holds that no compensation is due when, for example, property is destroyed to prevent the spread of a fire.

Ben Barros

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April 8, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Friday, April 2, 2010

Bell and Parchomovsky on Takings Compensation

Abraham Bell (San Diego) and Gideon Parchomovsky (Penn) have posted The Hidden Function of Takings Compensation on SSRN.  Here's the abstract:

To date, scholars have justified the constitutional mandate to pay compensation for takings of property on the intuitively appealing grounds that fairness demands recompensing aggrieved owners; on the basis of a belief that government that fails to pay will suffer from “fiscal illusion” and take excessively; or due to the need to neutralize politically powerful property owners who would otherwise foil socially beneficial projects.

This Essay offers a new explanation of the role of takings compensation in ensuring good government. Inspired by public choice theory, we argue that takings compensation reduces the incentives for corruption by limiting corrupt politicians’ ability to profit from takings. Specifically, we show that mandating compensation reduces the funds self-serving politicians can extort from property owners. At the same time, mandating compensation permits publicly-oriented politicians to continue pursuing socially beneficial projects.

This explanation yields important insights into the optimal structure of takings compensation. First, current incentives to use eminent domain excessively in the service of private developers cannot be blunted by modifying compensation policy. Only by a separate policy that charges developers for the benefits they receive can reduce or eliminate such misuse of the taking power. Second, overcompensation is even worse than under-compensation insofar as corruption is concerned. For this reason, laws requiring the payment of fixed percentage bonus above market value to property condemnees are in error. Additionally, where judges are thought systematically to overrate the subjective value owners attach to their properties, market value compensation may have some merit. Third, public compensation cannot be replaced by a private insurance system, even if such insurance were practical, since insurance too would encourage corruption.

Ben Barros

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April 2, 2010 in Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, April 1, 2010

Blumm and Ruhl on Background Principles and Takings Law

Michael C. Blumm (Lewis & Clark) and J. B. Ruhl (Florida State) have posted Background Principles, Takings, and Libertarian Property: A Response to Professor Huffman on SSRN.  Here's the abstract:

One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but instead a positivistic explanation of takings cases in the lower courts since Lucas, which include judicial recognition of statutory background principles. In this article, we respond to Huffman, examining the continuing importance of the background principles defense and explaining the trouble with his vision of libertarian property and his peculiar notion of the rule of law. We focus especially on wetlands regulation, which Huffman thinks is a recent development when in fact its origins date to medieval England, and therefore is particularly suited to the background principles defense. We conclude that background principles, as "the logically antecedent inquiry" into the nature of a claimant's property interest, are now a permanent feature of the takings landscape.

Ben Barros

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April 1, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Is Federal Land Subject to State Eminent Domain Power?

Several weeks ago, one of my students (hat tip: Emily Pabalan) forwarded an article about a bill pending in the Utah legislature that would authorize the state to condemn certain parcels owned by the federal government.  According to this AP story in yesterday's Washington Post, the legislation apparently has passed both chambers and been signed by the governor.  I was going to post a few thoughts, only to discover that I've been beaten to the punch both by Stephen Bainbridge and Eugene Volokh.

Like Professor Volokh, my initial reaction is that this use of eminent domain will be ruled unconstitutional under an analogy to M'Culloch v. Maryland.  If a state can't tax a federal bank, then it seems difficult to conceive that it could condemn federal property.  And this analogy raises an issue that I find both interesting and important -- i.e., the relationship between the taxing power and the eminent domain power.  As I point out in a forthcoming article in the William and Mary Law Review (see SSRN version here, pp. 28-31) taxes and takings share several theoretical characteristics but are almost always treated separately as a doctrinal matter.  Although some scholars (notably, Richard Epstein, Eric Kades, and Eduardo Peñalver) have tackled how these two powers should inform each other, I think there is probably a lot more to say.  Maybe the litigation that (inevitably) ensues from the Utah statute will help answer some of the questions.

Mike Kent

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March 29, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, March 21, 2010

Understanding the Conflict Behind Stop The Beach

Today's NY Times Magazine has a fantastic story by Andrew Rice about the conflicts in Destin, Florida that led to the Stop The Beach Renourishment case now before the Supreme Court.  (We've blogged before about Stop The Beach Renourishment, especially here and here.)  I talked at some length with the reporter, and learned a lot from our conversation.  I learned even more from reading the article.  Great stuff.

Ben Barros

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March 21, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, March 14, 2010

Mahoney on the Tension Between Positive and Negative Rights in Eminent Domain

Bran Frederick Mahoney, a student at George Mason, has posted The Greater Good or Property Rights? Resolving the Tension between Positive and Negative Rights in Eminent Domain on SSRN.  Here's the abstract:

This paper examines the background of takings law and differing philosophical viewpoints on individual rights. It then analyzes the balance of rights in the present use of eminent domain, and proposes solutions to current problems with eminent domain and the possible impact of these solutions on the balance of positive and negative rights.

Special attention is given to the status of blight and economic takings after Kelo v. City of New London, and what the jurisprudence in this area means for the balance of rights in the nation as a whole.

Ben Barros

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March 14, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, March 11, 2010

Gaba on Locke and the Takings Clause

Jeffrey M. Gaba (SMU) has posted John Locke and the Meaning of the Takings Clause on SSRN.  Here's the abstract:

John Locke, political philosopher and all around polymath, stands as a central figure in the development of Western conceptions of property rights and democratic institutions. If not the sole voice that is echoed in the American revolution and the Constitutional Convention, he clearly influenced the founders, particularly James Madison, and he thus represents an intellectual force that is a legitimate part of the current debate over the relationship between government power and individual property rights.

The purpose of this article is to provide both a detailed analysis of Locke to aid the Takings debate and a particular reading of the Two Treatises that provides a coherent picture of the limits of government authority over private property. Part I is an introduction to John Locke and the Two Treatises of Government. Part II addresses Locke's justifications for acquisition of private property in a pre-government “State of Nature” and the constraints on property reflected in a series of Lockean “provisos.” Robert Nozick in Anarchy, State and Utopia, has suggested that the “historical shadow” of Locke's provisos can have contemporary significance. Nozick is correct to suggest the continuing significance of the Lockean provisos, but incorrect in his assessment of application of the provisos. This article argues that only a Lockean “sustenance” proviso forms the basis of contemporary limitations on private property.

Part III deals with the central question of Locke's views on the scope of government authority over private property. Although Locke advocated a broad scope of government authority, he can be seen to have recognized a series of limitations on the exercise of this government power. One set of constraints arose from his view that government could not adopt “arbitrary” laws that did not serve the public good. Of equal significance is a constraint that rises from Locke's conception of the social contract. He can be read to argue that government can not regulate private property in ways that would place people in a worse condition than they would be in a pre-government State of Nature. Contract and game theory suggest some implications of this view, and the result is a weak set of “Lockean rights.” Government interference with those Lockean rights would require compensation under the Takings Clause. Beyond that, Locke suggested that democratic institutions are the proper check on interference with property rights. Part IV considers the implications of Locke's views for the contemporary Takings debate. In surprising ways, Locke's views mirror, in important ways, the outcome of the ad hoc approach to the Takings Clause employed by the Supreme Court.

Ben Barros

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March 11, 2010 in Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

Eminent Domain Battle in Virginia

Fox News reported yesterday about an eminent domain battle in Virginia over the amount properly awarded in just compensation.  The city that condemned the property offered approximately $20 million, but the landowner claims he received market offers for more than twice that amount prior to the condemnation.  In addition to the differing numbers, though, the story raises the larger question of whether property owners are truly made whole by awards limited to fair market value only.  Finally, the story reveals an interesting fact that I did not know -- in Virginia, jurors in an eminent domain case must be property owners.

Mike Kent

P.S.  Thanks to Stetson law student James Kannard for bringing the story to my attention.

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March 2, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)

Friday, February 26, 2010

New York and Blight Takings

At the City Journal, Nicole Gelinas has a good article on takings under New York's overbroad definition of blight.  Whether or not you favor this kind of economic development taking, doing it under a blight justification strikes me as completely dishonest.

H/T:  Ilya at the VC.

Ben Barros

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February 26, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Saturday, February 6, 2010

Ode to Centralia, Pennsylvania

The Associated Press ran an interesting story yesterday about the final days of Centralia, Pennsylvania, which has rested for decades above an intense, underground coal fire.  The federal government condemned the town in the 1980s and 1990s, but a hand few of holdouts have remained.  The state government now appears to be getting serious about removing them.  This story presents a lot of interesting property aspects -- from environmental concerns to eminent domain policy to the relationship between property, place and personal identity.  Interested readers can find a number of resources on Centralia here, although I can't vouch for any of them personally.

Mike Kent

P.S.  Thanks to Stetson Law student Emily Pabalan for bringing the story to my attention.

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February 6, 2010 in Natural Resources, Property Theory, Takings | Permalink | Comments (1) | TrackBack (0)