more on Supreme Court - "takings" tempest in a teapot

[David Farber <dave () farber net>]

Begin forwarded message:

From: Ethan Ackerman <eackerma () u washington edu>
Date: June 24, 2005 8:35:10 AM EDT
To: dave () farber net
Subject: RE: [IP] more on Supreme Court - "takings" tempest in a teapot
Reply-To: eackerma () u washington edu


Greetings Dave,

I thought I'd try and shed a bit of light on the recent Supreme Court
"takings" case Kelo v. City of New London, because the press,  
especially the
AP article forwarded to IP earlier, has been hyping it in a way that  
doesn't
show the whole picture.
The Kelo decision was important for municipal and real estate  
lawyers, BUT
it is NOT the HUGE deal, or even a big deal, the press has been  
making it.

The Constitution's 5th amendment, among other things, says  
governments can
only take private property for "public use," AND ONLY IF the property  
holder
is "justly compensated."
http://www.law.cornell.edu/constitution/ 
constitution.billofrights.html#amend
mentv

The press seemed to be noting the compensation in the footnotes, if  
at all.
So earlier posts notwithstanding, govt. takings ARE constitutional,  
in fact
they are written right into the constitution.  They just have to be  
for a
"public use" and "justly compensated."

In Kelo, the Supreme Court just confirmed that in some cases, municipal
economic development plans that involve condemning private property  
for new
development (REMEMBER, with JUST COMPENSATION) are "public use," even if
part of property ends up in private hands at the end of the deal.  There
are, and the Supreme Court reaffirmed, strong prohibitions on just
transferring private property from one private owner to another using
condemnation.

The classic taking situation is when a govt. condemns part of someone's
property to make a clearly PUBLIC use such as expanding a road or  
building a
city park.  BUT takings can also be regulatory - when a government
effectively removes all value from a piece of land by restricting  
what can
be done with it, an "absolutely no development" wetlands environmental
restriction, for example.

The idea of "regulatory takings" is a lynchpin issue for strong property
rights advocates and has been a MAJOR tool used to challenge most
environmental protection by several Republican administrations - I would
suggest this explains why the "conservative" vs. "liberal" breakdown of
votes occurred.

Finally, as Nathan identified, you can argue that takings implicate
copyrighted property as well, it was a major argument made by some in  
the
copyright extension cases, including Eldred v. Ashcroft.

Two good editorials that give takings a quick, easy explanation,  
including
political context:

http://www.commondreams.org/views05/0221-26.htm (LA Times)

http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cyber/epstein.html
(WSJ)


-Ethan Ackerman






-----Original Message-----
From: owner-ip () v2 listbox com [mailto:owner-ip () v2 listbox com]On Behalf
Of David Farber
Sent: Friday, June 24, 2005 4:09 AM
To: Ip ip
Subject: [IP] more on Supreme Court Rules Cities May Seize Homes




Begin forwarded message:

From: Jon Urdan <jonu () preventsys com>
Date: June 24, 2005 12:18:55 AM EDT
To: dave () farber net
Subject: RE: [IP] more on Supreme Court Rules Cities May Seize Homes


No one has commented on the odd alignment of judges in this case.
[...]
Does this seem odd to anyone else?
[...]

Begin forwarded message:

From: Nathan COCHRANE <NCOCHRANE () theage com au>
Date: June 23, 2005 8:02:25 PM EDT
To: dave () farber net
Subject: RE: [IP] Supreme Court Rules Cities May Seize Homes


Hi Dave

The news out of the US gets weirder and weirder all the time. So much
for the US Constitution when might makes right.
[...]
But it could be an interesting angle on the copyright debate.
[...]



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