As police battle a Colorado criminal on the loose, the home of innocent bystanders is destroyed. City of Greenwood Village to owners: rough luck, we know, but we don’t owe you anything for that loss. Or might the Supreme Court want to view that as a taking for which fair compensation is owed under the Fifth Amendment? Ilya Shapiro, Trevor Burrus, and Michael Collins on the Cato Institute’s certiorari amicus brief in Lech v. Jackson; Ilya Somin (yes, the oft-confused Ilyas were both involved).
Most of us are familiar with the Constitution’s Takings Clause, which requires the federal government to pay compensation when it takes private property. Virtually all state constitutions contain similar provisions. But twenty-seven state constitutions go further than that by requiring the government also to pay compensation for “damaging” or “injuring” property.
Until now, these “Damagings Clauses” have largely been ignored by legal scholars, particularly constitutional law scholars—and even by property rights advocates. But an outstanding 2018 article by Professor Maureen “Molly” Brady (who has just moved from the University of Virginia to Harvard) could help change that. She sheds light on the origins of these clauses in the late nineteenth and early twentieth centuries, the ways in which they have been largely gutted by court decisions, and what can be done to resuscitate them today.
Of the many lessons, one is simple: getting a constitutional amendment on the books is only half the battle, and often not the more difficult half. [Ilya Somin, Jotwell]
- Playlist: songs about eminent domain and takings, property law and the road [Robert H. Thomas, Inverse Condemnation]
- In-depth look into problems that develop when title to land is held as “heirs’ property,” leaving a dangerous collective tangle in place of individual right and duty [David Slade and Angie Jackson, Post and Courier (Charleston, S.C.)]
- Dispute over remains of two dinosaurs locked in combat 66 million years ago, lately unearthed in Garfield County, Mont. and extremely valuable, hinges on whether their fossils are “minerals”; Ninth Circuit says they are under Montana law [AP via Molly Brady (“property professor dream hypo”), Murray v. BEJ Minerals]
- “Government Should Compensate Property Owners for Flood Damage It Facilitated” [Ilya Shapiro and Patrick Moran on Cato amicus petition for certiorari in St. Bernard Parish v. United States] “Texas Court Rules Deliberate Flooding of Private Property by State Government in Wake of Hurricane Harvey can be a Taking” [Ilya Somin]
- Constituent-group politics continues to shape use of federal lands, to the detriment of its economic value [Gary Libecap, Regulation and related working paper]
- Caution, satire: Facebook parody of super-intrusive, restrictive, and meddlesome HOA [East Mountain West View Home Owners Association]
Kings County Politics investigates a series of cases in which New York City has seized the properties of Brooklyn homeowners after procedurally or substantively dubious findings of distressed condition or tax/water arrears. In some cases the city then hands the property over to politically connected developers. “Public Advocate Letitia James [has] called for a temporary freeze of the Department of Housing Preservation and Development’s (HPD) Third-Party Transfer (TPT) program” to address the concerns. [Stephen Witt and Kelly Mena, Kings County Politics]
- Popehat’s Patrick tells the story of how, representing a bank, he resisted a serial litigant rather than pay her off [Twitter thread]
- News of suits motivated by attorneys’ fees may be slow to reach Harvard [“Bill of Health”, dismissing “idea of opportunistic lawsuits to enforce the ADA” as “somewhat farfetched” since federal law does not grant damages]
- Tim Sandefur on the Indian Child Welfare Act [Cato Regulation magazine, earlier]
- $3.5 million gift from leading trial lawyer Elizabeth Cabraser launches new Berkeley Center for Consumer Law and Economic Justice [Berkeley Law School]
- “The South African government will soon discover the extremely complex technical headache of expropriating land without compensation.” [Johann Kirsten and Wandile Sihlobo, Quartz]
- Speak not of trolls: “Lawyer who filed 500-plus copyright cases in federal court calls $10K sanction ‘judicial error'” [ABA Journal]
- “The Rent is Too High and the Commute is Too Long: We Need Market Urbanism” [Andrew Criscione, Market Urbanism] Is excessive regulation making it costly to build starter homes? Ask the New York Times [Ira Stoll]
- Good: Sen. Mike Lee and Rep. Paul Gosar have introduced a bill to eliminate outright the Obama administration’s meddlesome AFFH (Affirmatively Furthering Fair Housing) rule [Vanessa Brown Calder, earlier]
- “Dollar home” programs show mostly sparse results in urban revitalization, especially when regulatory strings come attached [Jared Alves, Greater Greater Washington]
- Too radical to pass? Bill 827 in California would impose upzoning on transit corridors [Ilya Somin] California wildfires will worsen Bay Area housing shortage, but where’d that shortage come from? [Enrico Moretti, NYT] “Why Does Land-Use Regulation (Still) Matter in Oregon?” [Calder, Cato]
- New from NBER: “Rent Control Raises Housing Costs” [Charles Hughes, Economics21] Study “provides strong evidence of rent control’s damaging effects” [Calder]
- “Blockchain technology can empower public and private efforts to register property rights on a single computer platform,” with particular benefits for poorer societies in which property rights remain ill-defined [Phil Gramm and Hernando de Soto, WSJ/AEI, Arnold Kling] “The U.S. property title system is a disgrace. It could be fixed with blockchain. But it also could be fixed without blockchain.” [Kling]
- “The river can’t stop people from throwing hooks in it, which seems like an important right for a legal person to have” [Lowering the Bar] “Just days after New Zealand declared the Whanganui River a legal person, the world’s population of river people (not people who live on the river, but rivers who are people) tripled, when a court in India waved its judicial wand and transformed the Ganges and Yamuna rivers” [same, follow-up]
- One way to make Vladimir Putin unhappy: support legal fracking in U.S. [Eric Roston, Bloomberg]
- Stadium subsidies for the Patagonia set: outdoor gear makers push federal Western land grabs [Terry Anderson]
- Washington Post account of Wyoming rancher Clean Water case might deserve a Pinocchio or two of its own [Jonathan Wood]
- “When should the federal government own land?” [Tyler Cowen]
- Missed this 2014 Los Angeles Times investigation into the story behind a federal raid on pot-hunters in the rural Southwest [“A Sting in the Desert“]
Once again some advocates are advancing what they see as gun rights at the expense of the general rights of private property and contract. This time it’s a new state law that “allows any Tennessean with a valid gun permit to sue a property owner in the event of injury or death provided the incident occurred while in a gun-free zone.” More specifically, the “legislation places responsibility on the business or property owner of the gun-free area to protect the gun owner from any incidents that occur with any ‘invitees,’ trespassers and employees found on the property, as well as vicious and wild animals and ‘defensible man-made and natural hazards.'” The bill excludes situations where the law itself imposes the status of “gun-free zone,” but includes situations in which a Tennessee business adopts the status in order to follow the policy of its corporate owner or franchisor.
Traditional Anglo-American law grants to a property owner as a matter of course not only the right to exclude guns, but also to ask of customers and other invitees that, as a condition of their visit, they agree to assume the risk of some “defensible hazards” contemplated by the law, such as harm occasioned by roaming wild animals. Is it too much to ask that gun advocates promote the actual rights prescribed by the Second Amendment against government infringement — which certainly could use promotion right now — rather than infringe traditional individual property and contract liberties by inventing spurious new gun “rights”? [Tennessean via Bearing Arms] Earlier on laws restricting property owners’ rights to set rules against guns in parking lots here, here, here, here, related Roger Pilon at Cato, and, also with coverage of “off-duty conduct” as a protected class in discrimination law, here.
As I went walking I saw a sign there.
And on the sign it said “(C) — Guthrie estate”
But on the other side it didn’t say nothing,
That side was made for you and me.
“Following their successful actions to bring the songs ‘Happy Birthday’ and ‘We Shall Overcome’ into the public domain, New York law firm Wolf Haldenstein Adler Freeman & Herz are now taking on a similar action for the Woody Guthrie classic, ‘This Land Is Your Land.'” [IP Flow/Mimesis Law]
Back in 2004, when the successors in interest of Guthrie’s heirs threatened the writers of a politically oriented parody with copyright litigation, Fred von Lohmann of the Electronic Frontier Foundation wondered what Guthrie himself would have thought of the action, given that he once used a copyright notice that said:
This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.
The lyrics of “My Land,” including the “No Trespassing” verse lightly altered above, are here, complete with copyright assertion.
- Richard Pipes: “Private Property Sets the Boundary of the State” [Istituto Bruno Leoni video via Arnold Kling and Alberto Mingardi; my 1999 review of Pipes on property]
- “‘Housing is a human right,’ says [L.A.] group founded for the sole purpose of preventing new housing from being built” [@MarketUrbanism]
- “EPA Putting Red Light on Amateur Car Racing” [Kenric Ward, Reason]
- Publicity stunts in our time: “Gov. Rick Snyder target of RICO lawsuit over Flint water crisis” [Flint Journal]
- Speaking of which: lawsuit “on behalf of the future” in Oregon federal court seeks to represent youth against the federal government and major energy companies [Eugene Register-Guard]
- Some things to expect as autonomous vehicles take over, including the freeing up of a lot of expensive stuff and space urban areas [Johnny Sanfilippo, Market Urbanism]