GELPI Conference Day I

As expected, the presentations at the GELPI Litigating Takings conference have been outstanding.  This post only covers the first two panels.  Over the coming week, I'll report on the rest of the conference.

Lingle v. Chevron

Bob Dreher (GELPI) and R.S. Radford (Pacific Legal Foundation) were up first, discussing Lingle v. Chevron.  For those unfamiliar with the case, the Court's pre-Lingle takings cases had suggested that a regulation that does not substantially advance a legitimate government interest is a taking.  In Lingle, the Court rejected the substantially advance test as a takings test.  I summarize Lingle and explain my own views of the significance of the case in this essay.

Dreher, who had been counsel to Hawaii in the Lingle litigation, began the discussion by explaining how the substantially advance test had crept into takings law through citation to early substantive due process cases.  Beyond eliminating the substantially advance test from takings doctrine, Lingle may have enduring significance due its separation of takings doctrine from substantive due process doctrine.  This separation may be reflected in takings cases in several ways.  It resolves the relevance of cases like Euclid v. Ambler Realty to takings doctrine (i.e., no relevance at all).  It greatly reduces the ability of the government to rely on early substantive due process cases like Mugler v. Kansas.  And it makes the economic impact on the property owner the paramount consideration in the takings analysis.  I agree with Dreher completely on all of these points.

Dreher also noted that the rejection of the substantially advance test was a big deal because it killed off a pernicious doctrine that had been used by the 9th Cir. to invalidate rent control regulations.  I've never taken the substantially advance test very seriously, largely because it so obviously engaged in Lochner-style review of legislative actions that I had a hard time seeing contemporary courts using the test to strike down regulations.  But other panelists discussed a number of state cases that seemed to apply the substantially advance test, so I'm coming around to Dreher's view that it was a big deal.

R.S. Radford, who had been a leading proponent of the substantially advance test, began his talk with a good-natured acknowledgment of Bob's win in Lingle.  The introduction to his paper written for the conference begins with the following from Monty Python and the Holy Grail:

Arthur:  Now stand aside, worthy adversary.

Black Knight:  'Tis but a scratch.

Arthur:  A scratch?  Your arm's off!

Black Knight:  No, it isn't.

Arthur:  Well, what's that then?

Black Knight:  I've had worse.

Radford's argument was that the character of the government action (which is at the heart of the substantially advance test) will survive in regulatory takings cases, allowing the effectiveness or lack of effectiveness of a government action to play a role in the regulatory takings inquiry.  Radford noted that the character of the government act is certainly relevant to issues like the applicability of the nuisance exception.  More importantly, he thought that the effectiveness of the government action will always play into the fairness inquiry that underlies much of the Court's regulatory takings jurisprudence.  In the Q&A, Dreher and Radford agreed that the character of the action would remain in Court's unstated fairness analysis, but they disagreed on whether the fairness inquiry should focus on the impact on the property owner or on the benefit conferred to the public by the regulation.

Following up on this fairness point, Frank Michelman asked a very interesting question during the Q&A about squaring fairness concerns with "background principles" like necessity and the nuisance exception that allow the uncompensated destruction of property.  Dreher said that he was uncomfortable with the underpinnings of some of the necessity cases, though he noted that in firefighting cases, the courts may allow property to be destroyed without compensation because they don't want firefighters to be thinking about the cost of their actions.  Radford added that in many fire cases, the property is likely to be destroyed anyway.

Kelo v. New London

Tom Merrill (Columbia) and Scott Bullock (Institute for Justice) next discussed Kelo.

Bullock focused on the Kelo decision itself, arguing that Kelo broke new ground in allowing economic development takings.  While I agree that the Court had never previously allowed this type of taking, I think that Midkiff and Berman all but required the result in Kelo by articulating a highly deferential approach to public use (as discussed further here and here).  So I think the Court might have broken even more ground new ground if it had disallowed the taking in Kelo.  Bullock also criticized the way in which the Court seemed to think that fact that the agency exercising eminent domain had a detailed plan in place was relevant.  I agree with his view that this is completely disconnected from the real world.  Bullock wrapped up with a short discussion of the Kelo backlash, noting that 90+ percent of Americans disagree with the result in Kelo and that the backlash cuts across ideological lines.

Tom Merrill focused his discussion on the Kelo backlash, saying that the backlash has made him think about the different ways that academics and the general public frame eminent domain issues.  He labeled the two approaches the utilitarian frame and the moral rights frame, which he noted had some similarity to Ackerman's distinction between the perspectives of the scientific policymaker and the ordinary observer.  To the utilitarian, we have the institution of eminent domain to overcome holdout problems, and reconfiguration of rights should go forward any time there is a net benefit to society.  As a result, the utilitarian would want public use to be broadly construed.

The moral rights perspective, in contrast, focuses on the property owner, and views eminent domain as government coercion against innocent parties.  At one extreme, this view could call for a ban on eminent domain outright.  A more moderate position is that you only take when there is some good moral reason to do so, and the moral justification for the taking is stronger if the benefits are transferred to the public.  In this context the fairness test is the opposite of that articulated in Armstrong, focusing not on the impact on the condemnee but on the distribution of benefits of the taking to the public.  People holding this view favor a more strict interpretation of public use, and tend to think that this should be an issue for the judiciary to resolve.

Merrill than asked what to make of all this?  He said that he is not ready to chuck utilitarianism out the window just because 95% of Americans disagree with it, but that he is open to a more constrained view of eminent domain.  He said he would agree with a ban on eminent domain where the sole purpose is to raise tax revenue, and would agree to a ban on the economic development takings of homes.  (I've discussed banning economic development takings of homes, but allowing it for other types of property, here and here.)  He also suggested that he doesn't disagree with a ban on the use of federal funds for economic development takings, because it would make state and local governments focus on costs of development projects.

In the Q&A, an interesting question was raised about why increasing the compensation paid to homeowners hasn't been more popular in the legislative response to Kelo.  Merrill thought it was because the post-Kelo backlash is being driven from a moral rights perspective, which is more focused on the absolute right of the property owner.  Bullock agreed, saying that people are concerned about possession of their homes.  Merrill did note, though, that there is some empirical evidence that opposition goes down to eminent domain as compensation goes up.

Merrill also noted in answer to a question that it was somewhat discouraging that legislative reform needs a highly unpopular Supreme Court decision to go anywhere, and gave credit to the IFJ's very effective P.R. campaign about Kelo.  Bullock, who had used the home as castle metaphor in his earlier discussion, was also asked whether poor people have castles.  He answered emphatically yes, noting the importance in this context of making sure blight clearance is used to take truly blighted property.

Ben Barros

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