High court OKs personal property seizures
isomin at fas.harvard.edu
Thu Jun 23 18:45:39 PDT 2005
There is a clear distinction between economic development takings that
tranfer property to private parties and privatization of public services.
What follows is taken from a recent post of mine on Scotusblog.com:
There is an important incentive problem present in takings that does not
arise with other types of "privatization" of public services. When
property is condemned for transfer to a private party, there are usually
very few if any limits on what the new owner can do with it. In Kelo and
other economic development takings cases, the new owner has ZERO legal
obligation to actually provide the economic benefits that allegedly
justified the taking in the first place.
By contrast, when public services are "privatized" by contracting out, the
contractors (as the term implies) are usually required to sign a binding
contract that creates a legal obligation to provide the public service in
question. For this reason, private-to-private condemnations that
supposedly serve public purposes are much more vulnerable to abuse than
are most kinds of privatization. Free market advocates are right to view
them with heightened suspicion.
If New London were to build the facility itself and rent it out, the new
owners would presumably have to sign a contract that requires them to pay
rent and meet other conditions. They would therefore not be able to simply
do whatever they want. Obviously, one can imagine takings that place the
property under nominal state ownership but in reality allow private
parties to work their will with it. Some state courts strike down these
types of condemnations, and I think federal courts should too, though I
recognize that such cases are sometimes hard to distinguish from "true"
public uses. Be that as it may, the fact that courts have been too lax in
policing one type of taking is no reason to commit the same error in
On Thu, 23 Jun 2005, Sanford Levinson wrote:
> I don't understand the high dudgeon about this altogether predictable
> case (at least if Midkiff and Berman aren't to be overruled). Why isn't
> it eminently reasonable to think that New London has a right to try to
> pull itself out of the economic doldrums by luring Pfizer and other
> high-tax-paying entities. I take it that New London could build the
> facility itself and then immediately rent it out to private businesses.
> If so, then I am not bothered by their placing construction in the hands
> of the businesses. What this case really represents is the attempt by
> private property buffs to take advantage of what they perceive as a
> friendly court to cut back on these earlier cases and reinstate the
> jurisprudence of an earlier era (though Stevens takes pains to point out
> how the precedents he is relying on are over a century old).
> I also confess that I find it somewhat hilarious that conservatives
> object to using eminent domain to help out private businesses when they
> are just the people leading the fight to "privatize" much of government,
> which, as a practical matter, means the shovelling of large amounts of
> dollars to non-governmental institutions who are allowed to operate
> without significant supervision. Consider the high dudgeon from
> political conservatives if the Court were to rule, for example, that the
> implementation of "public welfare" programs had to be done by state
> agencies instead of private "faith-based" organizations, etc.
> I also see similarities, incidentally, between this opinion of Stevens
> and the opinion a few weeks ago in Raich: I.e., the emphasis in both
> was on the complex nature of the overall regulatory (or developmental)
> scheme. Stevens's opinion leaves properly open the question of a
> single-shot transfer from A to B that is not embedded within a broader
> program that clearly could be thought to benefit the public, as does the
> New London development. Anyone who truly believes in judicial restraint
> should applaud today's decision.
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
> Sent: Thursday, June 23, 2005 4:58 PM
> To: daviwag at regent.edu
> Cc: 'Strang, Lee'; conlawprof at lists.ucla.edu
> Subject: High court OKs personal property seizures
> I don't know how others feel, but in my humble opinion the Court's
> opinion in this case ranks among the worst during the Rehnquist Court
> Scott Gerber
> Law College
> Ohio Northern University
> Ada, OH 45810
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