PropertyProf Blog

Petition for Appeal in Takings/Establishment Clause Case

In early February, I posted on an interesting Pennsylvania case involving the constitutionality of taking blighted property to give to a religious institution.  Pennsylvania's intermediate appellate court held that the taking violated the establishment clause.  The Redevelopment Authority of Philadelphia has now filed a petition seeking review by the Pennsylvania Supreme Court.

Ben Barros

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Why Singling Out Should Have No Role in the Regulatory Takings Analysis

One of the central points in my recent essay on Lingle v. Chevron is that post-Lingle the character of the governmental act at issue should have no relevance to the regulatory takings inquiry:

More broadly, the analysis in Lingle illustrates why the character of the government act generally should have no role in the takings analysis.  Penn Central described the character of the government act as being relevant to the takings analysis, noting that “A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.”   This, of course, is an uncontroversial statement as made:  physical invasions are now seen as per se takings, where most regulatory actions are not.   Similarly, government actions that can be characterized as abatements of common-law nuisances are per se not takings.   Beyond these relatively narrow circumstances, however, the character of the government act should have no role in the takings analysis whatsoever.

As Lingle explained, the focus of the takings analysis is on whether the government act takes property, not on whether the government has a good or bad reason for its action.  Understanding that the character of the government act in the later sense – whether the government is acting for a really important reason as opposed to a really silly reason – is a substantive due process question, not a takings question, further helps clarify existing takings precedent.  Indeed, this understanding requires the effective deletion of eight pages from the U.S. Reports of Justice Stevens’ opinion Keystone Bituminous Coal Association v. DeBenedictis,  where the Court held that the government act was not a taking in part because it furthered a really important public purpose.   Justice Stevens’ analysis is rife with citation to Euclid and Goldblatt,  and post-Lingle it is clear that takings law presumes that the government is not affecting property for a really silly reason.

In my initial draft, I had used "half-assed" rather than "really-silly", but allowed the editors to talk me into being a bit more polite.  In any event, this point is tied to the broader holding in Lingle -- which is entirely correct in my view -- that the regulatory takings inquiry should focus on whether the government act takes private property.  Imagine that -- a takings clause test that is concerned with whether something is taken.

As I note in footnote 56 of the essay, however,

The Court’s opinion in Lingle regrettably preserved the suggestion from prior caselaw that a taking is more likely to be found to be a taking if the government act singles-out a relatively small number of property owners.  Because the focus of the regulatory takings analysis is on the impact of the government act on the property owner (or, put simply, whether the government through regulation effectively has taken property), it should not matter one bit whether the government has taken property for a good or bad reason, or whether the government has taken property from many owners or few.  Rather, if property has been taken, then what should matter is whether compensation has been paid or not.  If a local municipality took 90% of its residents’ property through an explicit exercise of eminent domain, compensation clearly would be due.  The result should not be different if the local municipality effectively took 90% of its residents’ property through regulation.  It may be that in the case of a broadly-applicable regulation, property owners are more likely to benefit from the restrictions placed on their neighbors.  But in many circumstances, the affected property owner will not obtain a proportional benefit from the regulation.

Indeed, the fallacy of the argument that a broadly applicable regulation will benefit the affected property owner is well illustrated by the Michigan Court of Appeals’ analysis in the recent K & K Const., Inc. v. Dep’t of Environ. Equality, 2005 WL 1753805 (Michigan Ct. of Appeal 2005).  K & K involved a property owner’s challenge to Michigan’s wetland regulations.  In rejecting that challenge, the court made the following unsupported assertion:  “All property owners in this state share these benefits relatively equally, and all property owners, and, importantly, all prospective owners, are relatively equally subject to the burdens placed on much of the property in this state by the wetlands regulations.” Id. at *15; see also R & Y, Inc. v. Anchorage, 34 P.3d 289, 298 (Alaska 2001) (rejecting a challenge to a wetlands regulation “which applies broadly to all landowners and which benefits both the public generally and the landowners in particular”).  This assertion is complete bunk.  The regulations certainly create a public benefit to the environment, but the burden is not shared equally by all property owners.  Rather, the burden is imposed only on property owners who have wetlands.  These property owners bear all of the burdens of the regulation while obtaining only a fraction of the public benefit.

In any event, if a regulatory impact is so severe that it actually constitutes the equivalent of a physical expropriation, the owners are not going to be in a position to benefit from such an average reciprocity of advantage.  Political process theorists would argue that singling-out makes it more likely that a process failure has occurred.  But any time the government takes property (through regulation or otherwise) without compensation, the political process has failed.  The Just Compensation Clause provides a remedy for such process failures, and compensation should be due regardless how narrowly or broadly the government focused its action.

This last point builds on an argument I made in this article at pages 515-17 as part of a discussion of Bill Treanor's process-oriented view of the takings clause.  While I agree that the framers generally and Madison in particular were concerned about process failure,

the text of the Just Compensation Clause makes it clear that it is not a process-oriented provision.  Unlike a provision directed at avoiding process failures detrimental to property owners--for example, a property qualification for voters--the Just Compensation Clause simply provides a remedy for the victim of the process failure.  The text requires compensation for every taking of property, and does not require an examination of the political process that led to the taking.  As Treanor himself notes: "[T]he original understanding did not involve making the individuals who were likely to suffer process failure better off than those protected by the political process.  Rather, the Takings Clause was intended to put everyone who suffered the same injury on the same footing: Everyone whose property was physically taken received compensation."  The Just Compensation Clause, then, is not concerned with how or why the process failure occurred.  Instead, it is concerned with the impact a government action has on the property owner.  If the impact is sufficiently severe (which necessarily could only result from a process failure), then compensation is due.

Ben Barros

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Who Owns (and will profit from) Native Culture?

I'll be participating in a conference at the University of North Carolina on Thursday (and traveling much of the weekend), so I'm going to be pretty quiet until next week.  Plus, it looks like everyone's going to consumed for the next few days thinking about the new US News rankings.

Because the conference is on reparations, I thought I'd leave off with a post on a related topic:
One question that people are increasingly asking these days is: how can native people receive compensation for the products of their culture?  In the words of Williams College Professor Michael Brown's important 2003 book, Who Owns Native Culture?  These questions come up in all sorts of places: Keith Aoki's written a lot about native rights to property--like seeds.  Madhavi Sunder has the latest contribution to theorizing why traditional communities deserve compensation for preserving traditional knowledge here.  And in Hawaii this is increasingly a topic of much concern because of local products, like the sacred taro plant, are being genetically engineered and appropriated for use by non-Hawaiians.  And the preservation of sacred places is a topic that we're hearing a lot about in Hawaii.  As we discussed earlier this week, there is also increasing talk of preservation of access to cemeteries on the mainland.

I thought again about this problem recently when I visited the Honolulu Academy of the Arts.  They have a fabulous--and I do mean fabulous--exhibit of treasures taken by Captain Cook's crew back to Great Britain. It's called Life in the Pacific of the 1700s: The Cook/Forster Collection of the Georg August University of Göttingen.  The treasures found their way into Germany–-and so they’re now on loan from several German museums. The exhibit is absolutely fascinating; I highly recommend it.  There are clothes, including a stunning mourning dress and simple but beautiful and elegant garb.  There are also fish hooks of all sizes, mats, an extensive fish net, and weapons.  Notable by their absence are religious objects.

One of the many things that struck me was how beautiful the clothes are.  Let's face it: they're destined for Seventh Avenue in New York City.  Check out the Honolulu Academy of Arts website to see a picture a heva, a Tahitian full-length mourning dress with headdress.  The picture, which is stunning, just doesn't do it justice.  Most of the other clothes in the exhibit are quite simple; often made out of organic materials (like coconuts).   And I think they'll be a huge hit in the marketplace.  Now, we just need to figure out a way to insure that the descendants of the people who created this work receive some compensation....  One way for that to happen is for clothes designers in Hawaii and elsewhere in the Pacific to get busy.

Special thanks to my colleague Carl Christensen, who told me some things about the exhibit that I didn't know.

Alfred L. Brophy

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More on Cemeteries: The Conflict Between Memory and Development

Lest you think my post on cemetery access was emphasizing an unimportant right, my colleague Justin Levinson points out that yesterday's Washington Post has an article, “More Family Cemeteries Dying Away in the South,” on the conflict between preserving family cemeteries and development in Tennessee.  As the article points out, there's frequently a conflict in the south:

In Tennessee, as in other Southern states, farm families in centuries past tended to bury their dead on their own land, allowing for quick interment and easy oversight of graves. . . .
Over the years, many families dispersed, undergrowth overtook the headstones and deeds changed hands. Some cemeteries -- particularly those where black families buried their kin -- used fieldstones as markers and are difficult to spot. . . .

Richard Binkley, who's building the subdivision, said he feels responsible for the dead on the property, but is torn about what to do. He bought and sold another property that had graves on it, and said he thinks his own family's cemetery was damaged by a careless developer.

"It's hard to buy a piece of property now that's on the outskirts of town that doesn't have a grave on it of some kind," he said. "It's come down to the point now where we're running out of space."

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UMKC Looking For Property Visitor

The University of Missouri - Kansas City School of Law is looking for visitor to teach Property and Estates and Trusts in the Fall 2006 semester.  It will consider a person to teach Property and Estates and Trusts in the Fall semester, or to teach two sections of Property.  If this person is available and interested, we may make the visit a full year with the visitor teaching Property II and another course to be determined in the Spring.  Interested parties should contact Associate Dean Jeff Thomas at 816 235 2378.

Ben Barros

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Barros on Lingle

I've posted the final version of my short essay At Last, Some Clarity:  The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69 Albany L. Rev. 343, on SSRN.  Here's the abstract:

This short essay discusses the Supreme Court's recent decision in Lingle v. Chevron and its potential long-term impact on the Court's regulatory takings doctrine. Lingle involved a narrow (though important) issue of takings law, and on the surface it appears to be a relatively modest case. A deeper look, however, reveals that in its separation of substantive due process and regulatory takings, Lingle has tremendous potential to clarify regulatory takings doctrine. If this potential is fulfilled, Lingle is likely to be far more significant in the long term than Kelo v. City of New London, which has dominated the commentary about the Court's recent takings decisions. Lingle may also have the counter-intuitive effect of helping property-rights advocates (who were the putative losers in the case) by undercutting the precedential value of cases that help the government in takings battles.

Ben Barros

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Strawberry Fields . . . Forever?

In the spirit of the philosophy of the Beatles--a lovely and amusing read (which I found out about through Brian Leiter)--I wondered what Beatles lyrics might relate to property.  Well, how 'bout Strawberry Fields Forever?  That led me to wonder whether one might have an equitable servitude to maintain a strawberry field . . . forever?  Let's see: notice, intent, and (even though it's an affirmative covenant), the burden pretty clearly touches and concerns the land.  The benefit might be in gross, though--I'd like to know a little bit more about who's asking for the strawberry field.  For the sake of simplifying things, let's assume that one neighbor promises for the benefit of another to maintain the field.  Unlimited duration, though?  Hmm.  Now, that might make it an unreasonable restraint on alienation.  Restatement Third § 7.12 says (in principle) that affirmative covenants of unspecified duration terminate after a reasonable times.  Maybe, though, you could have neighboring owners promise to keep strawberry fields forever for each others' benefit, § 7.12(2)....

And then, of course, there's the issue of interpretation.  What constitutes a "strawberry field"?  It sort of calls to mind a field of strawberries.  But then I think of Central Park's Strawberry Field, which is across the street from the Dakota, where Lenon was living at the time of his death.  Don't think there are many strawberries planted there; it's a garden.

Ah, really would make an amusing short question on a property final one of these days....

As to property in other songs, rentals appear in a few places in Beatles songs--"When I'm Sixty-Four" and "Lady Madona."  I'll leave to Paul Caron or my colleague Susan Hamill an entry on the Beatles' "Taxman.'"

Grave Matters: Accessing Cemeteries on Private Property

We hear about rights of access to private property every now and then, such as leafleting on private property and union organizers speaking to workers on employers' property.  But generally we think that a central right of property is the right to exclude.  So here's a right you likely haven't heard about: those who are related to people buried on private property have an implied easement in gross to visit that property.  It's protected by statute in about a quarter of (largely southern) states. 

This is a pretty strange right, don't you think?  Where did it come from?  There are cases going back well into the nineteenth century that support the right of relatives (more on this shortly) to visit cemeteries on private property.  In a lot of ways, it's a typical implied reservation of an easement.  The idea here is that when the landowner permitted burial on the property, she implied granted the right to family members to visit the grave.  This can be supported, I think, on a theory of easement by estoppel as well.  Then, when the original owner sold the property she impliedly reserved a grant in favor of the family members to visit the cemetery.  (In many cases, the landowner is also a relative; so in those cases, I think the case for an implied easement is a little more direct; at the time the landowner/relative sold, she impliedly reserved for herself and other relatives the right of access.)

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Kolber on Colavito

Over at PrawfsBlawg, Adam Kolber has some thoughts about Colavito v. New York Organ Donor Network, a recent Second Circuit organ donation case.  I briefly summarized the opinion here.

Ben Barros

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Purple Pain for Prince's Landlord

How could I possibly improve on E! On-Line's headline?  The upshot here is that Prince is being sued by his landlord for redecorating the house he is renting.  According to E!:

The ever-eccentric Grammy-winning Rock and Roll Hall of Famer has been sued by Utah Jazz forward Carlos Boozer for allegedly pimping out Boozer's West Hollywood home, which the diminutive rock star is renting for $70,000 a month.

Boozer originally filed a complaint against the Purple Rain singer in January, alleging him to be a less than ideal tenant, violating the terms of his eight-month lease via a series of self-promotional home improvements. . . .

Boozer claims Prince did an unauthorized extreme makeover to the 10-bedroom, 11-bath property, including "painting the exterior of the [house] with purple striping, 'Prince symbol,' and numbers 3121."

Thanks to the Smoking Gun for getting the goods (i.e., the complaint) on this one. But, um, he is, afterall, Prince.  Why not just buy the place (or one like it)?

Sounds like the makings of a great exam question to me.  This one's going to be talked about in property classes for years. 

One final note: if mtvU's "Stand In" Show wants to bring Prince to my property class this semester, I know we can accommodate him.  Perhaps a few days in Honolulu is just what Prince and the mtvU crew need.

Alfred L. Brophy

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What Case Should Be First?

Thanks, Ben, for the kind introduction and the opportunity to visit with propertyprof.  I thought that I might begin my time as a guest here with a question about beginning: what case should be the first one property students read?  I think the first one I read ‘lo those many years ago was Pierson v. Post and I suspect that a lot of professors continue to make that choice.  There’s something to be said for this.  Even if you’re not a hunter or "into" hunting, there’s something pretty engaging about the question: does a fox belong to the person who’s pursing it or the person on whose land it is killed?  And as recent research has shown, the question (and presumably) answer has a lot to do with conflicts between long-existing users and newer users.  Plus, it has all those great authorities and it’s a nice example of what Karl Lwellyn called the “grand style”–an opinion decided by discussion of first principles and consideration of economics and society.

Yet, I abandoned (ha, ha) Pierson some years ago.  Even if you want to use the conflict between old and new uses, between vested and dynamic property, I think there are better ways of getting at it.  I find Ghen v. Rich more accessible and better because it arises in the context of a business of whale-hunting, rather than a sport.  One might also (though no casebook does) use Charles River Bridge v. Warren Bridge, to bring out the static versus dynamic rights.

The more recent trend is to begin with Johnson v. McIntosh, which was popularized (though others may have pioneered it) by the Dukeminier and Krier and Singer casebooks.

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Brophy Blogging

I'm delighted that Alfred L. Brophy will be guest blogging here for a bit.  Brophy is professor of law at the University of Alabama, where he teaches property, wills, and remedies.  He is visiting this semester at the University of Hawaii.  His publications include Reconstructing the Dreamland:  The Tulsa Riot of 1921 (Oxford University Press, 2002) and Reparations Pro and Con (forthcoming later this year from Oxford).  He is currently working on the idea of equity in property jurisprudence.  I'm looking forward to his posts!

Ben Barros

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Cohen on Kelo

Charles E. Cohen (Capital University School of Law) has posted Eminent Domain After Kelo v. City of New London:  An Argument for Banning Economic Development Takings on SSRN.  Here's the abstract:

Last summer's U.S. Supreme Court decision in Kelo v. City of New London elicited angry responses from legislators, citizens and many scholars. The 5-4 decision held that the use of the eminent domain power to transfer non-blighted property to private entities for economic development satisfied the public use requirement of the Taking Clause. This article argues that the Kelo decision was correct as a matter of law, following naturally from U.S. Supreme Court precedent and consistent with prevailing judicial and legislative approaches to the public use question that pre-date the U.S. Constitution. Nonetheless, the practical result of existing public use doctrine is an eminent domain regime that frequently produces unjust and inefficient results, favors special interests over property owners, and provides inadequate protection of private property. After surveying the history of forced property transfers in the United States from the Colonial Era through the present, and analyzing the consequences of the present doctrine, the article calls for a ban on takings for economic development, preferably by state constitutional amendment.

Ben Barros

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Claeys on Jefferson and Coase

Eric Claeys (St. Louis University - School of Law) has posted Jefferson Meets Coase:  Train Sparks, Natural Rights, and Law and Economics on SSRN.  Here's the abstract:

This Essay uses train-sparks negligence cases to highlight tensions between traditional American tort common law and post-Coasean law and economics. In a train-sparks case, a railroad prima facie liable for negligence argues that the plaintiff was contributorily negligent by putting his stacks too close to the railroad’s tracks. Coase and other economists use such cases to illustrate standard economic analysis of torts problems, particularly bilateral incompatible-use disputes. The best common-law decisions in such cases use American natural-law/natural-rights theory to anticipate modern economic arguments - particularly Coase’s insight that common-law harms and benefits are merely reciprocal economic externalities.

The Essay argues that the difference between the common law/natural-rights approach and the economic approach to torts is primarily a difference between fundamentals and fine tuning. The leading common law train-sparks cases preferred fundamentals. They generated a hard distinction between harms and benefits because they designed property rights primarily to secure owners’ investment and labor and to accommodate the many conflicting uses to which similar property assets are put. By contrast, post-Coasean torts law and economics prefers fine-tuning. It prefers to view disputes through the reciprocal-externality paradigm because it seeks to maximize the total product of the competing property uses. That focus on productive efficiency, however, abstracts away from less quantifiable but still important policy concerns about investment and ordering.

The Essay teaches two important lessons. First, it suggests that moral theories of property can develop considered responses to the skepticism many economists show toward moral harm-benefit distinctions. Second, it suggests that law and economists might want to consider other forms of efficiency when they analyze bilateral incompatible use conflicts. Coase and others have focused mainly on productive efficiency; complete economic analysis might also want to consider dynamic efficiency and the efficient minimization of the information costs associated with private property.

Ben Barros

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McFarlane on the New Inner City

Audrey McFarlane (University of Baltimore - School of Law) has posted The New Inner City: Class Transformation, Concentrated Affluence and the Obligations of the Police Power on SSRN.  Here's the abstract:

This article examines the role of local government in the process of urban spatial restructuring (gentrification). In light of the disparate needs and competing interests of different racial and socioeconomic groups seeking a place in the city, there are limits to local government's ability to facilitate redevelopment projects that deliberately aim to accomplish class transformation and exclusively reconfigure the inner city for the affluent. These limits exist by virtue of implied obligations of the police power.

Ben Barros

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McKenna on Normative Foundations of Trademark

Mark P. McKenna (St. Louis University Law School) has posted The Normative Foundations of Trademark Law on SSRN.  Here's the abstract:

This paper challenges the conventional wisdom that trademark law traditionally sought to protect consumers and enhance marketplace efficiency. Contrary to widespread understanding, early trademark cases were decidedly producer-centered. Trademark claims, like all unfair competition claims, sought to protect a producer from illegitimate attempts to divert its trade, and consumer deception was relevant in these cases only to the extent it was the method by which trade was diverted.

Moreover, American courts from the very beginning protected a party against improperly diverted trade by recognizing property rights derived from a natural rights theory of property. That traditional approach dictated very specific and workable restrictions on the scope of trademark protection. In fact, despite repeated claims that modern trademark law is illegitimate because it has lost its consumer focus, the expansion of trademark law in the twentieth century was more a consequence of the rise of consumer protection rhetoric than a rejection of that view.

This paper argues that the broad protection trademark law now provides deserves sustained scrutiny, but that criticisms can be leveled against modern doctrines must stand on their own merits and fairly confront the policy goals of modern trademark law. The criticisms cannot draw their normative force by pointing to "traditional" principles that did not exist.

Ben Barros

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Housing Bubble Blog

I just came across the Housing Bubble Blog, which has a lot of interesting info and may be of interest to readers who follow the subject.

Ben Barros

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Update on Iowa Sex Offender Residency Rules

The New York Times has a story that describes the consequences of Iowa's sex offender residency rules:

The men have flocked to . . . rural motels and trailer parks because no one else will, or can, have them. A new state law barring those convicted of sex crimes involving children from living within 2,000 feet of a school or day care center has brought unintended and disturbing consequences. It has rendered some offenders homeless and left others sleeping in cars or in the cabs of their trucks.

I've previously posted on the Iowa regulations here.

Ben Barros

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Fenster on Takings 2005

Mark Fenster (University of Florida) has posted The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights on SSRN.  Here's the abstract:

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for revision and tightening after a stirring four-justice dissent in Kelo v. City of New London and an enormous public protest decrying the majority decision.

Notwithstanding this reversal, the 2005 decisions offer a coherent approach to Takings Clause enforcement - albeit one that is likely to frustrate commentators, theorists, and property rights advocates. More clearly than ever before, the Court in its 2005 decisions abandoned the difficult, if not impossible, task of providing a clear normative justification for the Takings Clause. Instead, its decisions reveal a marked preference for preserving and furthering its vision of an institutional system of governance - a jurisprudence that is focused on the question of who should decide rather than on the substantive issue of what should be decided, and that is committed to the passive virtue of deference. In short, the Rehnquist Court explicitly chose to adopt a “legal process” approach to takings. Because it privileges structure and process over explicit considerations of substantive legal and normative issues, this approach is unsatisfactory to property and constitutional theorists; because it defers to government decisions, it is maddening to property rights advocates; and because it is technocratic and abstract, it is unsatisfactory to the public. Given the prominence of the legal process approach to constitutional review of state regulatory action in the post-New Deal era, however, judicial passivity remains attractive, if unromantic, to judicial actors. Ultimately, recognizing the Court’s shift away from defining constitutional property rights via the Takings Clause offers important descriptive and prescriptive insights into the future of takings law in the Roberts Court, especially if a majority of justices decide to tighten review of eminent domain actions or otherwise heighten judicial review under the Takings Clause.

Ben Barros

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Vermont Symposium on Takings

The Vermont Journal of Environmental Law recently published a symposium issue on the Supreme Court's recent takings cases.  The articles are all available online.

Ben Barros

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