Thursday, November 26, 2009

More Atlantic Yards

Our intrepid co-editor Matt Festa posted a great summary on November 24, 2009, about the recent win for builders in the New York City takings controversy over the Atlantic Yards project in Brooklyn.  Atlantic Yards, as envisioned, will comprise twenty-two acres, including eight acres of public open space, an 18,000-seat arena, residential buildings, office towers, retail, and a signature tower--"Miss Brooklyn"--by architect Frank Gehry.  Click here to read the Wall Street Journal's take:  Suzanne Sataline, Matthew Futterman, & Chistina S.N. Lewis, "Builders Net Win in N.Y. Case:  Court Says State Can Claim Land for Brooklyn Project; Game is Back On for NBA Arena" (Nov. 25, 2009).

One line in the article was striking to me:  "The decision is a blow to private-property owners who have argued that they are defenseless in protecting their ownership rights once a government deems their land necessary for eminent domain, or the 'public good.'"  Holding aside the merits of the Atlantic Yards project and Kelo, the decision is not so much a blow to private-property rights, but a harsh reminder that property is a system of rights, duties, and relationships amongst people with respect to things, tangible or intangible, as endorsed by the state.  In other words, our property rights exist only to the extent the government will guarantee them. 

Will Cook, Charleston School of Law

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Of course rights exist only to the extent they are reliably enforced. But our government is tripartite, with the judicial branch holding the other two branches to obedience to "the law," particularly to provisions of the constitution. That's what the checks and balances doctrine is all about. But if the courts are to act as a rubber stamp for the other two branches, judges should at least stop nattering about "judicial independence." The rest of us should then start talking more about the other I-word: judicial impartiality.

Posted by: Gideon Kanner | Nov 26, 2009 11:09:51 PM