Posts Tagged ‘eminent domain’

Scheme to seize underwater mortgages

Inspired in part by the work of Cornell law professor Robert Hockett, the city of Richmond, Calif. is planning to 1) use eminent domain to seize private mortgages for considerably less than their actual worth; 2) cut a deal with existing residents of the homes to install FHA mortgages in place of the seized mortgages; 3) use the windfall surplus — derived by paying the private mortgage holders less than the actual value of their forcibly seized holdings — to subsidize the local residents, thus buying their political favor, as well as leaving a goodly sum to pay off the private outfit called Mortgage Resolution Partners that’s pushing the scheme (written up sympathetically in a recent New York Times account).

What could go wrong, aside from to the spirit of the Constitution and the rule of law? Gideon Kanner points out that even California eminent domain law still requires the payment of “fair market value, not some bargain basement figure pulled out of thin air”:

…we believe that not even California courts will stand still for that. Why not? Because under our law, if the condemnor tries to lowball too much, and makes an unreasonable pre-trial offer, it may have to pay the condemnees’ attorneys’ and appraiser’s fees, plus other litigation expenses, on top of the “just compensation” required by the constitutions. And, of course, any diminution in value brought about by the the market’s reaction to the imminence of the condemnation, cannot be considered in determining fair market value. The property has to be valued as if unaffected by the condemnor’s plans or by any preliminary steps taken toward the condemnation. Cal. Code Civ. Proc. Sec. 1263.330.

For other reasons the scheme may prove much more expensive to the city of Richmond and its taxpayers, see Ilya Somin [more, yet more] Other commentary: Matt Welch, Richard Epstein. Earlier here, here, etc.

Banking and finance roundup

  • After bank burglarizes Ohio woman, law will give her curiously little satisfaction [Popehat]
  • North Las Vegas scheme to seize underwater mortgages through eminent domain raises constitutional opposition [Kevin Funnell]
  • “The SAC Insider Trading Indictment” [Bainbridge, WSJ MoneyBeat]
  • “He who sells what isn’t his’n/Must buy it back or go to prison.” Most naked short selling driven by fundamentals, study says [Daniel Fisher]
  • NY AG Schneiderman to Thomson Reuters: don’t you dare sell early access to the market-moving survey you pay for [Bainbridge]
  • “The Confidential Witness Problem in Securities Litigation” [Kevin LaCroix]
  • “The puzzling return of Glass-Steagall” [Tabarrok]
  • “FATCA: How to Lose Friends, Citizens and Influence” [Colleen Graffy, WSJ via Paul Caron/TaxProf, earlier]

Environmental roundup

N.J. court: loss of ocean view in dune condemnation

New Jersey’s highest court ruled that a Harvey Cedars couple do not have to be compensated for the loss of an ocean view, as distinct from the loss of actual land, after the government condemned a strip of their beachfront for a dune restoration project. Relevant factor: the dune restoration is believed to have saved the couple’s home when Hurricane Sandy hit, and that benefit could properly be offset from the taking. [MaryAnn Spoto, Star-Ledger; earlier; edited/corrected to reflect comment]

More from reader TD in comments: “The reporter absolutely got it wrong. The court agreed the loss of a view could be a taking, but that it needed to be offset by the benefit incurred because the dune would presumably prevent future flooding. The lower courts had not allowed for the offset.”

Supreme Court roundup

More election notes

  • Virginia voters overwhelmingly voted to curtail state’s eminent domain powers [Ilya Somin]
  • “The most misunderstood Supreme Court decision of the last thirty years, Citizens United, made absolutely no difference in this election. Which is no surprise to anyone who read the case. Let’s hope we stop seeing attacks on free speech based on faulty premises.” [Ted Frank; Alison Frankel, Reuters; John Samples, Cato]
  • “A Quick Round-Up on Education Policy and the 2012 Elections” [Andrew Coulson, Cato]
  • By 58-42 margin, voters in liberal Montgomery County, Md. curtail county’s obligation to bargain with police union over policy changes with effects on working conditions [Gazette, earlier here, etc.]
  • “Double down on social issues” advice wouldn’t have put Romney over the top, to put it mildly [Hans Bader] Medieval obstetrics expert Akin pulled less than 40 percent against Missouri’s unpopular McCaskill [Andrew Stuttaford, Secular Right]
  • Entrenchment of union rights in state constitution wasn’t the only bad idea that Michigan voters rejected: they also turned thumbs down on unionization of home health aides and mandates for utility use of renewables [Conn Carroll]
  • Louisiana voters strengthened protection for individual gun rights in their state constitution [Volokh]

Property rights roundup

  • “Property Rights Panel at the Cato Institute’s Constitution Day” [Ilya Somin] Related: “Sackett v. EPA and the Due Process Deficit in Environmental Law” [Jonathan Adler]
  • Feds’ fishy forfeiture attack on Massachusetts scallopman [Ron Arnold, Examiner]
  • California politicos seek crackdown on lenders’ supposed “retaliation” against municipalities considering seizing mortgages by eminent domain: “You Can’t Use Voluntary Action to Try to Stop Government Coercion” [Coyote; earlier here, here, here] Will Congress step in to shut down the grab? [Kevin Funnell]
  • “The government of Honduras has signed a deal with private investors for the construction of three privately run cities with their own legal and tax systems.” [A Thousand Nations, Todd Zywicki, FedSoc Blog]
  • A Philadelphia business owner decides to clean up and improve an adjacent, neglected city-owned lot, and soon has sad cause for regret [Philly Law Blog]
  • Georgia claimant: “Hi, I own your land although I have no evidence of that” [Lowering the Bar, update]
  • “Blight” condemnation could stymie hopes for historic preservation in Denver [Castle Coalition]

Constitution and Supreme Court roundup

  • Coming up next Tuesday, Sept. 18, in Washington: Cato Constitution Day. Be there! [schedule]
  • In the unlikely event Congress enacts federal limits on state malpractice suits, Prof. Randy Barnett says he expects to help with a court challenge [Andrew Cochran, earlier]
  • Michael Uhlmann reviews Michael Greve’s The Upside-Down Constitution, and Greve responds [Claremont, Liberty and Law] A New Hampshire story: our “cooperative federalism” can’t replace a simple bridge [Mark Steyn]
  • Broad discretionary search of citizens’ private papers? FISA strains Fourth Amendment [Julian Sanchez]
  • Paging Akhil Amar: Romney on Meet the Press says “I am as conservative as the constitution” [Tucson Citizen] Randy Barnett vs. Amar on progressive constitutionalism [WSJ, Volokh]
  • “Constitutional Places: The Carolene Products Factory That Straddled The Border Between Missouri and Oklahoma, But Did Not Engage In Interstate Commerce” [Josh Blackman, with picture and diagram of filled-milk plant]
  • “More thoughts on Justice Sutherland” [Magliocca, ConcurOp]
  • Seize first, compensate later? Cato files amicus in raisin-farmer takings case [Ilya Shapiro]
  • “What Were They Thinking: The Supreme Court in Revue 2011” [John Elwood & Eric White, Green Bag, PDF]