Legal Process

23 November

• 5A: if private property is taken for public use, then just compensation.

  This means we need to know what:

  • "Taking"
  • "Private Property"
• Note that there's a power implied here: the government can force a transaction on a seller. If A wants to buy B's property, they have to pay what B asks. But if A is the government, they must pay just compensation. Who decides what that is?

  If it's a private transaction, the seller decides what fair market value is. If the purchaser is the government, the fair market value is decided by the courts.

• The eminent domain power counters two problems. The first is efficiency/distributional: we want to be able to deal with large numbers of impacted parties, without each one having veto power. The second is a fairness problem: we don't want people to extract absurd values for their property.
• Causby
  The government has no possessory interest here. They're basically using an easement.

  Now, in classical property, the landowner owns from the ground up to the heavens. But that doesn't mesh well with the use of airplanes. So we have the 1926 Air Commerce Act: the US has complete sovereignty over the airspace. The Interstate Commerce Clause strikes again.

  So everybody got a check, right? Because the government was taking their property. There's no doubt that congress had the right to pass the Air Commerce Act, but what they're basically doing is taking some property for public use, and they ought to have to pay just compensation.

  But we know this didn't happen. Why not? And this also deepens the mystery of Causby: how can this possibly be a taking if the Air Commerce Act was not?

  Used to be if there was no title, there was no taking. But there's also the kind of taking where the property is rendered valueless. And there's the concept of physical invasion: flying over the property.

  There was a $2K change in the property value: noises, vibrations, chicken crashing.

• Batten
  Here we've got noises, vibrations, filmy substances, smoke. Likely, this is worse than Causby, but there was no taking. Ostensibly because there was no flying over. We had physical invasion of particles and vibrations.

  If there's a property injury, and you can get a remedy for it, you know you have a property right.

  Note that this has to be a takings suit: the government does not consent to be sued in nuisance.

  Just Compensation
  Pro	Con
  Fairness Certainty in property values Countering majoritarian bias The classic B, p, l: there's a split between who gets the benefits of a project, and who gets the costs-- it makes sense that the government should have to pay for what it uses	Numbers: everybody is adversely affected by government regulation at some point Complexity: there would be tremendous administrative costs trying to figure out which claims have merit

  There will be far fewer people affected by flying over than by flying by. Everybody has the flying-by problem, to some degree. We draw the line at flying over because it's easier to distinguish winners from losers in that context, and there are fewer cases to deal with.

• Why is "Zero Value" a qualifying metric for takings compensation? Because the number is low, and it's easy to evaluate whether a claim is a winner or not, and what the compensation should be.
• Richards v. Washington Terminal: this is mentioned in Batten. This is a fly-by thing. Why was it a taking (i.e., physical invasion) if it's not in Batten? The court says because the stuff was "intentionally" blown onto the plaintiffs' land. This is proximate cause, essentially. They're drawing a line here.
• This is how property rights are defined: they are dependent on the existence of a remedy. So "if private property is taken for public use, then just compensation" is a circular statement.
• OK, regulatory takings and Lucas
  Prior to the Pennsylvania Coal case (192x), there was no such thing as a regulatory taking: if there was a regulation, there was no taking. Then Oliver Wendell Holmes says that there can be cases where a regulation goes too far.

  Then Penn Central.

  So here, the plaintiff is saying his property has been rendered valueless.

  Scalia talks about an "average reciprocity of advantage:" the state is imposing a restriction (as the developer did in Wollf), and the theory is that there is an overall advantage. But not necessarily to each individual landowner.

  The restrictions here are imposed to stop beach erosion. The people who are restricted are also the most likely beneficiaries of it (insofar as they have beachfront property, and it would be nice if it stayed that way).

  But Lucas is prevented from developing at all. What he lost was the ability to receive "average reciprocity of advantage." And he wants to extend takings, and there's a good argument for doing so, because this would be a small number of cases, and it's easy to show there was no average reciprocity of advantage-- it's a total taking with respect to him.

  The state says this isn't acquiring a public benefit, it's preventing a public harm.

  In the lower court, Lucas wins on his total takings argument, but loses on the prevention of harm prong.

  Now, in SCOTUS, Scalia points out that ANY regulation could be cast as preventing harm. Preventing nuisance, on the other hand, is OK: we're not going to compensate someone for the loss of a right to do something they had no right to do in the first place.

• The denominator problem: depending on how you define the property interest affected, it might be hard to tell whether there was a total taking. All regulations impose restrictive covenants, basically, so all regulations totally take some property interest. See FN7 in Lucas: Scalia warns that this is a dangerously elastic standard.
• Tahoe
  Who is the beficiary of regulation aimed at keeping the lake clear? The property owners. But they are all stopped from developing at all. So, no use of the land while the moratorium is in place.

  This could certainly be considered a total taking: all the land, for any use. But not for all time.

  So they're going to define "total taking" (i.e., whether or not this amounts to one) with an eye on what just compensation would mean.

  So as a property owner, we want to tell the court not only that there won't be an avalanche of new cases, and also that whatever cases there will be are relatively easy to decide. This means we fear the other side's Average Reciprocity of Advantage argument, because that means it will be hard to tell who is a winner and who is a loser-- so we need to deal with the fact that those affected by the moratorium are also the ones who stand to benefit the most. And we also fear the "we're preventing a nuisance" defence (which arises if there's a total takings claim).

  Now in Lucas, it would have been sort of hard to claim that there was a nuisance. Not so much here. That makes the result of this case kind of easy to predict.

• Note that just because there's a nuisance doesn't mean there will be no compensation (c.f. Spur).
• In both Boomer and Spur there was a simple rule. Boomer: nuisance = injunction. Spur: coming to the nuisance = no remedy. These rules mean that the court does not have to do the relative impact analysis (the parties would just bargain), and in both cases, the court forsakes the simple rule. Why? The number of parties makes it so that bargaining won't work (Boomer). And there's an obvious party who can pay (i.e., Del Webb, in Spur).
• The road-and-tree problem: "will this issue be resolved elsewhere" (i.e., not in the courts, notwithstanding an obvious outcome if it were handled in the courts).
• Our standard 9-party diagram.
  • Situation 1: 8 parties benefit $1K by the restriction, and 1 party loses $4K
  • Situation 2: 8 parties benefit by $500, and 1 loses by $8K

  Now we ask whether we'll get the restriction in three contextxs:

  	Situation 1	Situation 2
  Benefit-Cost Analysis	Restriction imposed	No Restriction Imposed
  Majoritarian Bias	Restriction imposed	Restriction imposed
  Minoritarian bias	No trstricto imposed	No restriction imposed

• What happens when we add just compensation into that?