Law School Discussion

Off-Topic Area => Politics and Law-Related News => Topic started by: amarain on June 23, 2005, 10:12:50 AM

Title: Supreme Court OK's seizure of personal property
Post by: amarain on June 23, 2005, 10:12:50 AM
I think this is horrible (http://edition.cnn.com/2005/LAW/06/23/scotus.property.ap/index.html). A huge step backward for the rights of private citizens.
Title: Re: Supreme Court OK's seizure of personal property
Post by: InVinoVeritas on June 23, 2005, 10:16:26 AM
i haven't read much in the way of the exact details surrounding the case, but as an intial reaction, i agree.  This sucks.
Title: Re: Supreme Court OK's seizure of personal property
Post by: amarain on June 23, 2005, 10:18:15 AM
I'm pretty shocked actually. I thought for sure it would go the other way. And I can't believe I'm agreeing with Scalia.
Title: Re: Supreme Court OK's seizure of personal property
Post by: InVinoVeritas on June 23, 2005, 10:21:06 AM
I'm pretty shocked actually. I thought for sure it would go the other way. And I can't believe I'm agreeing with Scalia.

and i'm disagreeing with ginsburg and breyer.  oh boy.  ;)
Title: Re: Supreme Court OK's seizure of personal property
Post by: amarain on June 23, 2005, 10:26:06 AM
I'm pretty shocked actually. I thought for sure it would go the other way. And I can't believe I'm agreeing with Scalia.

and i'm disagreeing with ginsburg and breyer. oh boy. ;)
I don't know what to believe anymore!
Title: Re: Supreme Court OK's seizure of personal property
Post by: elemnopee on June 23, 2005, 11:05:44 AM
"Justice Sandra Day O'Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers."

That's exactly what this is going to do. 
Title: Re: Supreme Court OK's seizure of personal property
Post by: Julee Fern on June 23, 2005, 11:53:04 AM
I also oppose the decision, but this is really just an extension of existing policy.  They could already uproot familes and neighborhoods to build factories, etc.  They just called it "Blight" then, I guess.

Keep in mind that they have to compensate for anything they take, and the doctrine of eminient domain goes back quite a ways.
Title: Re: Supreme Court OK's seizure of personal property
Post by: InVinoVeritas on June 23, 2005, 12:02:05 PM
I also oppose the decision, but this is really just an extension of existing policy. They could already uproot familes and neighborhoods to build factories, etc. They just called it "Blight" then, I guess.

Keep in mind that they have to compensate for anything they take, and the doctrine of eminient domain goes back quite a ways.

i think it's an overreaching interpretation of what has traditionally been the doctrine of eminent domain (which has been limited to clear public benefits).  and while monetary compensation may make up for some of the loss, i think there's more to losing one's house than merely economic loss.
Title: Re: Supreme Court OK's seizure of personal property
Post by: elemnopee on June 23, 2005, 12:04:30 PM
Do they have to give a fair market rate, or the actual market rate.  

Houses that go on the market in many areas get offers well above the asking price, so the actual market rate is higher than anticipated.

I'm nervous that city councils are going to plow through undesirable, low-income housing and sell the land to developers to build giant high-rise condiminiums.  
Title: Re: Supreme Court OK's seizure of personal property
Post by: Julee Fern on June 23, 2005, 12:15:18 PM
Do they have to give a fair market rate, or the actual market rate.  

Houses that go on the market in many areas get offers well above the asking price, so the actual market rate is higher than anticipated.

I'm nervous that city councils are going to plow through undesirable, low-income housing and sell the land to developers to build giant high-rise condiminiums.  


I'm not sure how fair market value differs from actual market rate. 

Sure, someone may underprice their home, or they may overprice it.  The trick is to first establish what someone would actually pay for it.
Title: Re: Supreme Court OK's seizure of personal property
Post by: elemnopee on June 23, 2005, 12:24:33 PM
I'm not sure how fair market value differs from actual market rate. 

Sure, someone may underprice their home, or they may overprice it.  The trick is to first establish what someone would actually pay for it.


Where I live houses go for 30-50,000 over asking price, easily.

If your mortgage was locked in at a low interest rate, this could also really screw you.
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 23, 2005, 12:50:56 PM
I think this is horrible (http://edition.cnn.com/2005/LAW/06/23/scotus.property.ap/index.html). A huge step backward for the rights of private citizens.

Utterly unfathomable. What policy purpose does this serve OTHER than to make those with money and power MORE POWERFUL? I, too, am shocked I agree with Scalia, but I am more shocked that Scalia didn't yet again invent constitutional protections for corporations and the wealthy at the expense of everyone else. Maybe he had a change of heart.
Title: Re: Supreme Court OK's seizure of personal property
Post by: jwilcox1024 on June 23, 2005, 02:54:16 PM
Do they have to give a fair market rate, or the actual market rate.  

Houses that go on the market in many areas get offers well above the asking price, so the actual market rate is higher than anticipated.

I'm nervous that city councils are going to plow through undesirable, low-income housing and sell the land to developers to build giant high-rise condiminiums.  

I'm not sure how fair market value differs from actual market rate. 

Sure, someone may underprice their home, or they may overprice it.  The trick is to first establish what someone would actually pay for it.


As people much smarter than I have pointed out elsewhere the idea that fair/market rate is the same as just compensation in situations like this is an oversimplication. There is a cost in time and money to sell a home. You have to look for a new place to live, pay the closing costs associated with the new home, pack and move all your belongings, etc. When you are voluntarily moving you take upon the burden of those costs because you value what you are getting in return more. This clearly is not the case when eminent domain is involved.

The above also fails to factor in the emotional investment you have in your home -- my home may only be worth $150,000, but it might take $300,000 to get me to move voluntarily because of my emotional attachment. Perhaps we need a system like that in torts where you are compensated both for your (full) economic loss and your emotional loss if you can demonstrate one. (such as the woman in Kelo who has lived in one of the homes for her entire life of 80+ years)
Title: Re: Supreme Court OK's seizure of personal property
Post by: ViagraSaint on June 23, 2005, 08:07:28 PM
if the city declares your residential property commercial property before seizing, any idea how the value is affected? 

for commercial, the cashflow/amount of income the property brings in is a factor and for most residential homes this is zero.

Title: Re: Supreme Court OK's seizure of personal property
Post by: Faure on June 23, 2005, 08:21:52 PM
I am really curious to see what kind of compensation people receive. Does anyone have any idea of what the New London folks were offered?
Title: Re: Supreme Court OK's seizure of personal property
Post by: sublimation on June 24, 2005, 12:10:16 AM
according to a program on npr this morning, the compensation received is at the 'government issued rate' (?), which, according to the expert guest, is sig. lower than real market value.
Title: Re: Supreme Court OK's seizure of personal property
Post by: Faure on June 24, 2005, 06:13:40 AM
That sucks! I think you should be compensated for higher than market value and have all your taxes etc... waived when purchasing another home. Interesting to see the SCOTUS vote the way they did.
Title: Re: Supreme Court OK's seizure of personal property
Post by: Lenny on June 24, 2005, 06:51:23 AM
Say what you will, but I want to at least throw it out there that maybe you should wait until at least you've been at law school for a bit before you so readily criticize a Supreme Court ruling.  It is undeniable that yes, this ruling sucks for the plaintiffs in this actual case and for people who may become the subject of an aggressive city in the future.  But, the opinions themselves show that this case was about a lot more than fair and unfair.  It was, to a large degree, about precedent.  Some pretty well-entrenched precedent existed that logically pointed to this outcome, as troubling as that may have been for the 5 Justice majority.  I'm sure they weren't sitting around saying "Aha, I'm going to rule this way because I like shopping malls better than poor people."  They looked at the precedent and said "well, this is how the cookie crumbles unless we completely change course on this issue."  With so much course changing occuring in other recent Supreme Court opinions, I am sure these Justices are a little tired of the "activist" word.  This case also had a lot to do with deference.  Those of you that are about to go to law school will learn about the significant deference that courts are supposed to give to decisions made by other branches of government that have the authority and expertise needed to make those decisions.  It isn't a court's job to second-guess everything that the executive or legislative branches do.  Instead, the court's sole role is to weigh in on the legality of a decision, not the wisdom.  At the Supreme Court level, their job is to determine the constitutionality of a decision, and the Constitution cuts a pretty broad swath of permissible actions, especially in the economic arena.

Though I usually tend to side with the O'Connor, Scalia, Thomas, Rehnquist group, I think the majority got this one right.  The dissent is "correct" when it says that this opens the door to many abusive practices, but its slippery-slope logic is a fallacy and the political process will, theoretically, keep the local governments in check.
Title: Re: Supreme Court OK's seizure of personal property
Post by: HippieLawChick on June 24, 2005, 07:12:43 AM
Lenny:  What you didn't consider is that perhaps people were responding to their opinions of this decision as CITIZENS of this country.  We are not only future lawyers, but US Citizens and have the right to express an opinion based on perceived outcomes of the decision...not the legal theories involved.  In the law school class I sat in on, the professor asked the students what they thought a "good" decision would be and how they thought the Court could have arrived at it. Law School isn't just about analyzing the decision made, but other possible ones. 
Title: Re: Supreme Court OK's seizure of personal property
Post by: Lenny on June 24, 2005, 07:50:23 AM
Oh, ok.  Thanks for the lesson, Hippie.  I totally stand corrected...

First, I never brought into question your "right" to dislike the outcome.  Complain away.  You're completely right that, as I mentioned, this result sucks, potentially for a lot of people.  But, to what end does that statement arrive?  Sitting there and saying "man, this is bad" is nothing but stating a truism, much like you would find in many sociology classes - "disproportionately low access to opportunity for minorities is a bad thing"  "yeah, it is, what should we do about it?"  "whoa whoa whoa, I'm a sociology major, I don't fix problems, I just point them out - I say we just blame someone and leave it at that."  The point is, its all fine and good to point out the downsides, but where does that get us if that is all that happens?  If you want to start a grass roots campaign to "amend" the Fifth Amendment, go right ahead and I would probably support it, but criticism without suggestion or resolution doesn't get me very far.

Second, I was responding more to the people who had stated that the Supreme Court made the wrong decision legally, ignoring until now those that assailed the decision from a societal standpoint.

Third, regarding your ONE all-enlightening class that you sat in on, it is a very common thing for professors to ask what a possible alternative holding would be in a given case.  This question implies the caveat "that would be in accordance with the current status of the law" when it asks for possible alternative holdings.  The point of my previous post was that I don't think there was a strong alternative holding that would not require a marked change of course in Fifth Amendment takings law.  There, of course, were some possible alternative rulings, as Justice O'Connor points out in her dissent, the bright-line blight/commercial improvement test being an example.  But, I agree with the majority that many of these alternatives were unworkable in practice.   
Title: Re: Supreme Court OK's seizure of personal property
Post by: amarain on June 24, 2005, 07:54:56 AM
Thank you, HippieLawChick. I didn't realize that only people who had been to law school were able to have valid opinions about the actions of our government.

So Lenny, if the President decides to start firebombing your town, you really should withhold judgment since you haven't had any formal military training.

You're basically saying that it's bad to criticize anything or express an opinion unless you are able to do something about it. I'm sorry, but if I was required to change every issue I have strong opinions about, I wouldn't have time to work and pay my taxes.
Title: Re: Supreme Court OK's seizure of personal property
Post by: A.J. on June 24, 2005, 08:01:36 AM
I think this needs some context.  Do you think a few select people in a location largely allocted to growth and expansion should be allowed to hold up the process for everyone else?

The city of NY decided a small coffee shop couldnt stand in the way of the world trade center because the net benifit to the city was perceived to be far greater than any loss to the owners.  The private owners were compensated accordingly as in the others will be, or have been.

This ruling does not mean the government can be capricous in its selection of who keeps and who loses their homes.  There has to be a larger purpose and they will have to compensate.
Title: Re: Supreme Court OK's seizure of personal property
Post by: ViagraSaint on June 24, 2005, 08:05:06 AM

in most property transfers, it is the seller who determines the price, not the buyer.  that's what makes it troublesome.
Title: Re: Supreme Court OK's seizure of personal property
Post by: A.J. on June 24, 2005, 08:06:05 AM
Theyll have to pay a market determined price presumably determined objectively by some third party.

And thats not correct.  Sellers and buyers come together in a market driven by supply and demand, not supply only.

Edit: unless you mean simply the acceptable price, in which case its up to the seller to say yeah or nay to the offer
Title: Re: Supreme Court OK's seizure of personal property
Post by: amarain on June 24, 2005, 08:18:47 AM
I'm extremely troubled by the fact that this essentially gives a blank check to the government to take anyone's property at any time. They don't have to show blight or anything. They can force you out of your home, against your will, as long as they give you some money back (amount determined by themselves). If a group of residents in one area do not want their homes bulldozed to make way for a Wal Mart, then that Wal Mart ought to find somewhere else where the residents ARE willing to give up their homes. That's how the free market is supposed to work - offer enough money that people are motivated to leave, and if they're still not motivated, then find somewhere else.

Essentially, this ruling puts the rights of corporations and developers above citizens.
Title: Re: Supreme Court OK's seizure of personal property
Post by: A.J. on June 24, 2005, 08:22:45 AM
I'm extremely troubled by the fact that this essentially gives a blank check to the government to take anyone's property at any time. They don't have to show blight or anything. They can force you out of your home, against your will, as long as they give you some money back (amount determined by themselves). If a group of residents in one area do not want their homes bulldozed to make way for a Wal Mart, then that Wal Mart ought to find somewhere else where the residents ARE willing to give up their homes. That's how the free market is supposed to work - offer enough money that people are motivated to leave, and if they're still not motivated, then find somewhere else.

Essentially, this ruling puts the rights of corporations and developers above citizens.

Im not sure how much of that is accurate, but I cant answer that question. 

In the instant case it has to do with CITY plans and CITY allocated land zones.  The concern is for the economic growth and the beautification of that city/state and for the benifit of the city/state as a whole. 

You may equally argue that the ruling actually puts the rights of the larger group of citizens over the select few who are perhaps holding back progress.

Title: Re: Supreme Court OK's seizure of personal property
Post by: Lenny on June 24, 2005, 08:29:15 AM
Exactly what I was going to say.  The opinion starts with the proposition that the government can't take from A solely for the benefit of B.  Thus, this decision does not put the "rights" of a corporation over the "rights" of the citizen because the rights of the corporation are in no way implicated by this case.  Instead, the case deals with the right of a (politically accountable and democratically elected) city government to determine city growth versus the right of an individual to stay where they are. 

Again, I am not saying it is bad to express dislike of the status quo or of a court decision.  I am simply stating that this expression of dislike is only the first half of the process.  Point out the problems, but at least attempt to offer a solution or an alternative - and don't be upset if people attack your suggestion.  Plenty of smart people offer up unworkable solutions before the true solution is discovered.
Title: Re: Supreme Court OK's seizure of personal property
Post by: amarain on June 24, 2005, 08:43:33 AM
But here's my question: were we really having a problem with "progress" before this ruling? Is it really necessary to resort to this sort of measure, where the government can take whatever it wants in order to build more strip malls, more condos? What I'm interested in knowing is whether or not the other people in the community supported the developers or the residents. Was there a big public outcry against those people clinging to their homes and impeding progress?
Title: Re: Supreme Court OK's seizure of personal property
Post by: A.J. on June 24, 2005, 08:49:58 AM
I dont think that would answer the question of whether its desirable or not.  Here in my town the city decided to put up several condos that block the bay view of some residents and in their minds detract from the rustic quality of the town.  These people are out in full force against it, calling town meetings and picketing.  That has hardly detered city planners who are not simply trying to create what would be a boon for the contractors or the future landlords (no matter what opponents say, read anti corporation argument) but rather recognize that without organized development ultimately the local region will suffer sprawl and overcrowding. 

This is a case in my mind for not heeding the outcry of some group of citizens who the press and they themselves would have you believe speak for the town at large and instead looking at down the road a ways for the good of the entire area region.
Title: Re: Supreme Court OK's seizure of personal property
Post by: amarain on June 24, 2005, 10:06:58 AM
I dont think that would answer the question of whether its desirable or not.  Here in my town the city decided to put up several condos that block the bay view of some residents and in their minds detract from the rustic quality of the town.  These people are out in full force against it, calling town meetings and picketing.  That has hardly detered city planners who are not simply trying to create what would be a boon for the contractors or the future landlords (no matter what opponents say, read anti corporation argument) but rather recognize that without organized development ultimately the local region will suffer sprawl and overcrowding. 

This is a case in my mind for not heeding the outcry of some group of citizens who the press and they themselves would have you believe speak for the town at large and instead looking at down the road a ways for the good of the entire area region.
I see your point, but that's a realllly dangerous road, one that I'm not willing to go down. Basically you're saying, the people don't always know best, and sometimes the government (or in this case, private developers who are out for a profit) has to step in and ignore the people's wishes and take the power away from them. It's not too far from there to defending dictatorship.
Title: Re: Supreme Court OK's seizure of personal property
Post by: A.J. on June 24, 2005, 10:15:56 AM
I have to say I really disagree with the way youre trying to characterize the issue.  I think its more a matter of weighing social costs and benifits than anything else.  Our government builds our cities, yes?  It plans and it develops with an eye to its constituency, yes?  Is this tantamount to communism or socia-economic dictatorship?  I think not.

 
Title: Re: Supreme Court OK's seizure of personal property
Post by: amarain on June 24, 2005, 10:19:06 AM
I have to say I really disagree with the way youre trying to characterize the issue.  I think its more a matter of weighing social costs and benifits than anything else.  Our government builds our cities, yes?  It plans and it develops with an eye to its constituency, yes?  Is this tantamount to communism or socia-economic dictatorship?  I think not.

 

Yes, that's true, but it is implied that the government builds cities with the people's consent. The notion of giving the government such overly broad powers to develop and destroy against the will of the people is very dangerous, in my opinion.

Basically, I don't trust the government.
Title: Re: Supreme Court OK's seizure of personal property
Post by: A.J. on June 24, 2005, 10:27:26 AM
But again youve run into the problem of what groups "will" weighs more or less.






Are we going to get after this stuff policy stuff in law school? 


If so itll have its bright spot for sure.  ;)
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 24, 2005, 10:44:16 AM
Say what you will, but I want to at least throw it out there that maybe you should wait until at least you've been at law school for a bit before you so readily criticize a Supreme Court ruling.  It is undeniable that yes, this ruling sucks for the plaintiffs in this actual case and for people who may become the subject of an aggressive city in the future.  But, the opinions themselves show that this case was about a lot more than fair and unfair.  It was, to a large degree, about precedent.  Some pretty well-entrenched precedent existed that logically pointed to this outcome, as troubling as that may have been for the 5 Justice majority.  I'm sure they weren't sitting around saying "Aha, I'm going to rule this way because I like shopping malls better than poor people."  They looked at the precedent and said "well, this is how the cookie crumbles unless we completely change course on this issue."  With so much course changing occuring in other recent Supreme Court opinions, I am sure these Justices are a little tired of the "activist" word.  This case also had a lot to do with deference.  Those of you that are about to go to law school will learn about the significant deference that courts are supposed to give to decisions made by other branches of government that have the authority and expertise needed to make those decisions.  It isn't a court's job to second-guess everything that the executive or legislative branches do.  Instead, the court's sole role is to weigh in on the legality of a decision, not the wisdom.  At the Supreme Court level, their job is to determine the constitutionality of a decision, and the Constitution cuts a pretty broad swath of permissible actions, especially in the economic arena.

Though I usually tend to side with the O'Connor, Scalia, Thomas, Rehnquist group, I think the majority got this one right.  The dissent is "correct" when it says that this opens the door to many abusive practices, but its slippery-slope logic is a fallacy and the political process will, theoretically, keep the local governments in check.
I don’t think one needs a law degree to justify the belief that an opinion of a court is faulty. Ultimately, every case that makes it way to the Supreme Court has the complexity you suggest. Moreover, most cases have even more competing policy purposes to be considered than the instant case. And while going into all of the complexities of the case may be warranted on a law exam, to the rest of the world, the decision in the end is all that matters. Everything else is academic.
Would one suggest criticism of the Dred Scott decision be suspended until after One L?

But there is a more fundamental flaw in your analysis that warrants comment. You are correct in that courts, even the Supreme Court, must respect binding precedent. However, the determination of whether the facts of the case apply to it adequately enough to consider it binding leaves a lot of discretion in the hands of a judge. Some judges said the facts were consistent with prior rulings, the dissenters said they were not. To say that the (slim) majority was bound by the decision and their holding was “correct”  implies that (sizeable) minority opinion effectively ignored precedent  and were incorrect. The complexity that you argue makes deliberateness in opinion necessary also increases the odds that there is no one correct answer.  Most cases, in reality, are merely a matter of opinion (as evidenced by the split rulings that are all too common from the Supremes).

Further, while you are correct that judges don’t (or at least should not) decide cases based merely on their preferences for which type of person should be a winner and which should loser, the myriad of policy purposes which are undeniably involved in this case and others can lead to a persuasive argument from either side of the debate. In the end, however, it is the individual’s sense of which policy purposes should prevail which governs their opinion.
Title: Re: Supreme Court OK's seizure of personal property
Post by: A.J. on June 24, 2005, 10:48:03 AM
In the end, however, it is the individual’s sense of which policy purposes should prevail which governs their opinion.


Indeed, judicial "attitude" according to Llewellyn.  Are you a current student?
Title: Re: Supreme Court OK's seizure of personal property
Post by: ViagraSaint on June 24, 2005, 11:00:17 AM
i thought the wording in the constitution allowed seizure for public use.  it's a question if using the local government is a shell game for commerical use, because obviously commercial and public use are not one in the same.  a commercial entity such as land developers would be prohibied from seizing property directly from an individual. so what is being questioned is if there is a degree of laundering in which essentially the same action is occuring where the commercial land-developers uses the local government as a proxy, procedural step.  we hope the court offered guidelines in which the burden is on the local government for proving the seizure benefits the public as a whole.

IMO, Walmart is commercial use.. and rarely could a seizure of private property for building a walmart and developing said supercenter comprise public use.  is there a series of tests or objective means of determining this?  holy *&^%, i can't believe id be siding with scalia and thomas... this is a first
Title: Re: Supreme Court OK's seizure of personal property
Post by: Julee Fern on June 24, 2005, 11:16:51 AM
I'm not sure how fair market value differs from actual market rate. 

Sure, someone may underprice their home, or they may overprice it.  The trick is to first establish what someone would actually pay for it.


Where I live houses go for 30-50,000 over asking price, easily.

If your mortgage was locked in at a low interest rate, this could also really screw you.


You're missing the point -- the 30/50K plus represents the true fair market value / actual market rate -- what people are willing to pay. 

The asking price was therefore an incorrect estimation of FMV/MR. 

I'm not sure how this is determined for purposes of takings compensation -- just noting that the FMV/MR should in fact be whatever people are willing to pay.
Title: Re: Supreme Court OK's seizure of personal property
Post by: Julee Fern on June 24, 2005, 11:20:48 AM
Say what you will, but I want to at least throw it out there that maybe you should wait until at least you've been at law school for a bit before you so readily criticize a Supreme Court ruling.  It is undeniable that yes, this ruling sucks for the plaintiffs in this actual case and for people who may become the subject of an aggressive city in the future.  But, the opinions themselves show that this case was about a lot more than fair and unfair.  It was, to a large degree, about precedent.  Some pretty well-entrenched precedent existed that logically pointed to this outcome, as troubling as that may have been for the 5 Justice majority.  I'm sure they weren't sitting around saying "Aha, I'm going to rule this way because I like shopping malls better than poor people."  They looked at the precedent and said "well, this is how the cookie crumbles unless we completely change course on this issue."  With so much course changing occuring in other recent Supreme Court opinions, I am sure these Justices are a little tired of the "activist" word.  This case also had a lot to do with deference.  Those of you that are about to go to law school will learn about the significant deference that courts are supposed to give to decisions made by other branches of government that have the authority and expertise needed to make those decisions.  It isn't a court's job to second-guess everything that the executive or legislative branches do.  Instead, the court's sole role is to weigh in on the legality of a decision, not the wisdom.  At the Supreme Court level, their job is to determine the constitutionality of a decision, and the Constitution cuts a pretty broad swath of permissible actions, especially in the economic arena.

Though I usually tend to side with the O'Connor, Scalia, Thomas, Rehnquist group, I think the majority got this one right.  The dissent is "correct" when it says that this opens the door to many abusive practices, but its slippery-slope logic is a fallacy and the political process will, theoretically, keep the local governments in check.


Lenny, you're missing the point that the ruling here was in no way foreordained or pre-determined by prior rulings.  Yes, the government has traditionally been allowed to take property for public use.  The question here was whether commercial development constituted public use.  The argument that it is not public use is at least as strong here. 

(I could go into the fact that even the SCOTUS overturns prior questionable decisions, as in Lawrence v. Texas.  However, it really isn't even necessary to do so here.)
Title: Re: Supreme Court OK's seizure of personal property
Post by: InVinoVeritas on June 24, 2005, 11:26:17 AM
i thought the wording in the constitution allowed seizure for public use. it's a question if using the local government is a shell game for commerical use, because obviously commercial and public use are not one in the same. a commercial entity such as land developers would be prohibied from seizing property directly from an individual. so what is being questioned is if there is a degree of laundering in which essentially the same action is occuring where the commercial land-developers uses the local government as a proxy, procedural step. we hope the court offered guidelines in which the burden is on the local government for proving the seizure benefits the public as a whole.

IMO, Walmart is commercial use.. and rarely could a seizure of private property for building a walmart and developing said supercenter comprise public use. is there a series of tests or objective means of determining this? holy *&^%, i can't believe id be siding with scalia and thomas... this is a first

here's the problem though, from what i recall from the facts of the case, the most of the development would be used for commercial purposes (pfizer research, condo developments), and only a small part could unequivocally be characterized as public use (US Coast Guard Museum).  So, if that's the case, what's to prevent a similar case in which Wal-Mart would be the primary commercial beneficiary, from being struck down by a court?  Afterall, if building a Wal-Mart is part of a city's developments plans and a convincing case could be made that having the Wal-Mart would increase the tax base, it seems to me the doctrine of eminent domain prevails based on the Kelo ruling, no?  Afterall, I've essentially substitute Pfizer for Wal-Mart.
Title: Re: Supreme Court OK's seizure of personal property
Post by: Julee Fern on June 24, 2005, 11:26:42 AM
I think this is horrible (http://edition.cnn.com/2005/LAW/06/23/scotus.property.ap/index.html). A huge step backward for the rights of private citizens.

Utterly unfathomable. What policy purpose does this serve OTHER than to make those with money and power MORE POWERFUL? I, too, am shocked I agree with Scalia, but I am more shocked that Scalia didn't yet again invent constitutional protections for corporations and the wealthy at the expense of everyone else. Maybe he had a change of heart.


People "shocked" by their agreement with Scalia et al here seem ignorant of the fact that conservatives traditionally favor individual property rights over the right of society to violate those rights for ostensible public good.  Liberals, on the other hand, are traditionally more willing to favor the sacrifice individual property rights for the ostensible public good.  This decision is fully in accord with traditional conservative/liberal values and voting patterns.  If the decision troubles you, you may want to reexamine your own values, and those of the respective parties.  

(It should be noted that all the Justices nominated by Democrats voted in favor of this ruling, and all Justices voting against it were nominated by Republicans.)
Title: Re: Supreme Court OK's seizure of personal property
Post by: Julee Fern on June 24, 2005, 11:28:41 AM
i thought the wording in the constitution allowed seizure for public use. it's a question if using the local government is a shell game for commerical use, because obviously commercial and public use are not one in the same. a commercial entity such as land developers would be prohibied from seizing property directly from an individual. so what is being questioned is if there is a degree of laundering in which essentially the same action is occuring where the commercial land-developers uses the local government as a proxy, procedural step. we hope the court offered guidelines in which the burden is on the local government for proving the seizure benefits the public as a whole.

IMO, Walmart is commercial use.. and rarely could a seizure of private property for building a walmart and developing said supercenter comprise public use. is there a series of tests or objective means of determining this? holy sh*t, i can't believe id be siding with scalia and thomas... this is a first

here's the problem though, from what i recall from the facts of the case, the most of the development would be used for commercial purposes (pfizer research, condo developments), and only a small part could unequivocally be characterized as public use (US Coast Guard Museum).  So, if that's the case, what's to prevent a similar case in which Wal-Mart would be the primary commercial beneficiary, from being struck down by a court?  Afterall, if building a Wal-Mart is part of a city's developments plans and a convincing case could be made that having the Wal-Mart would increase the tax base, it seems to me the doctrine of eminent domain prevails based on the Kelo ruling, no?  Afterall, I've essentially substitute Pfizer for Wal-Mart.


You're completely right.  Under this ruling, anything that benefits the city, in the eyes of the city council, is considered "public use', justifying a taking. 

Kind of reminds me of Wickard.
Title: Re: Supreme Court OK's seizure of personal property
Post by: amarain on June 24, 2005, 01:08:39 PM
People "shocked" by their agreement with Scalia et al here seem ignorant of the fact that conservatives traditionally favor individual property rights over the right of society to violate those rights for ostensible public good.  Liberals, on the other hand, are traditionally more willing to favor the sacrifice individual property rights for the ostensible public good.  This decision is fully in accord with traditional conservative/liberal values and voting patterns.  If the decision troubles you, you may want to reexamine your own values, and those of the respective parties. 

(It should be noted that all the Justices nominated by Democrats voted in favor of this ruling, and all Justices voting against it were nominated by Republicans.)

Blogger, I am aware of this. I'm not actually shocked to be in agreement with Scalia on this issue, only expressing my surprise at the fact that I have common ground with someone with whom I disagree so strongly on other issues.

The problem that I and many others like me face is finding a party that does not fall within those 'conservative/liberal' lines that you described. Where is the party or the politicians that stand up for property rights and protection of citizens' privacy as well as the right of consenting adults to do whatever they please in their own bedrooms? Who do I vote for if I believe in both the right to own a firearm as well as the right to have an abortion?
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 24, 2005, 01:17:57 PM
I think this is horrible (http://edition.cnn.com/2005/LAW/06/23/scotus.property.ap/index.html). A huge step backward for the rights of private citizens.

Utterly unfathomable. What policy purpose does this serve OTHER than to make those with money and power MORE POWERFUL? I, too, am shocked I agree with Scalia, but I am more shocked that Scalia didn't yet again invent constitutional protections for corporations and the wealthy at the expense of everyone else. Maybe he had a change of heart.


People "shocked" by their agreement with Scalia et al here seem ignorant of the fact that conservatives traditionally favor individual property rights over the right of society to violate those rights for ostensible public good.  Liberals, on the other hand, are traditionally more willing to favor the sacrifice individual property rights for the ostensible public good.  This decision is fully in accord with traditional conservative/liberal values and voting patterns.  If the decision troubles you, you may want to reexamine your own values, and those of the respective parties.  

(It should be noted that all the Justices nominated by Democrats voted in favor of this ruling, and all Justices voting against it were nominated by Republicans.)
You have misdefined both liberals and conservatives. The difference between the two centers on the degree to which they believe government should assist those who do not benefit from the economic realities of capitalism. Liberals believe this is a major role of government, conservatives do not. That is it–-everything else is propaganda, overstatement, demonization, oversimplification, etc.
It is not inconsistent to be “liberal” (correctly defined) and to find a major problem with this ruling. In fact, Sandra Dee (moderate) largely argues from the liberal’s perspective. The decision is faulty, in my opinion, because even if you assume that Gov seizure is in the public’s best interest, it ultimately hurts individuals who it tends to help.

I am not so naive (or ignorant in your terminology) to think that Scalia’s ruling has anything to do with property rights, per se. He is not a Conservative; he is a neo-Conservative (there is more divergence between Conservatives and Neo-Cons as there is liberals and Conservatives).  Scalia’s reasoning, I suspect, has more to do with the reality that he does not want some rich guy who owns 1,000 acres of prime real estate to have his property seized to build a Wal Mart far more than his concerns for its impact on property rights.
Title: Re: Supreme Court OK's seizure of personal property
Post by: HippieLawChick on June 24, 2005, 01:23:56 PM
I am sorry Bosco, but I am LMAO at an error in your post:

Sandra Dee: Actress and fodder for National Enquirer articles

Sandra Day O'Connor: Supreme Court Justice


Tee hee!!!!


Title: Re: Supreme Court OK's seizure of personal property
Post by: InVinoVeritas on June 24, 2005, 01:25:08 PM
I think this is horrible (http://edition.cnn.com/2005/LAW/06/23/scotus.property.ap/index.html). A huge step backward for the rights of private citizens.

Utterly unfathomable. What policy purpose does this serve OTHER than to make those with money and power MORE POWERFUL? I, too, am shocked I agree with Scalia, but I am more shocked that Scalia didn't yet again invent constitutional protections for corporations and the wealthy at the expense of everyone else. Maybe he had a change of heart.


People "shocked" by their agreement with Scalia et al here seem ignorant of the fact that conservatives traditionally favor individual property rights over the right of society to violate those rights for ostensible public good.  Liberals, on the other hand, are traditionally more willing to favor the sacrifice individual property rights for the ostensible public good.  This decision is fully in accord with traditional conservative/liberal values and voting patterns.  If the decision troubles you, you may want to reexamine your own values, and those of the respective parties. 

(It should be noted that all the Justices nominated by Democrats voted in favor of this ruling, and all Justices voting against it were nominated by Republicans.)

i'm not ignorant of the fact at all.  i have no problem with eminent domain, per se, but i do have a problem with the decision here.  also, i probably have a slightly broader tolerance for eminent domain than either Thomas or Scalia, which is why i tend to disagree with the two more often than i agree.  also, i think it's a bit much to boil down liberal/conservative values to just the issue of individual property rights.  so while kelo troubles me, i'm fully conscious of the rest of my political/moral beliefs to know that i'm not ready to shed my traditionally liberal beliefs and proclaim my allegiance to to Rove, et. al.  My politics are much more complicated than that.

(while your statement about who nominated whom is true on its face, it should be noted that three of the justices who did comprise the majority in Kelo were in fact Republican.  so, your theory that republican nominees reflect republican values and democratic nominees reflect democratic values doesn't ring quite true. (maybe you're not even implying this at all, but that's what i'm gathering.)  Stevens was nominated by Ford, Kennedy was nominated by Reagan, and Souter was nominated by Bush Sr.)
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 24, 2005, 03:17:00 PM
I am sorry Bosco, but I am LMAO at an error in your post:

Sandra Dee: Actress and fodder for National Enquirer articles

Sandra Day O'Connor: Supreme Court Justice


Tee hee!!!!




Actually it wasn’t an error. As a life-long Bobby Darin fan, I am fully aware of who Sandra Dee is. Perhaps my mocking tone wasn’t blatant, but I assumed that the satirical nature of my allusion to “Sandra Dee” would be recognized. For that I apologize.  For those who don’t know, the chick could hardly be one to defend liberals–a description that applies to both.
Title: Re: Supreme Court OK's seizure of personal property
Post by: ViagraSaint on June 24, 2005, 03:21:00 PM
anyone coming from a third world country recognizes the role of corruption and how money buys justice.  individual rights mean nothing.  In this regard, the principle of capitalism applies to every level, including the law.  this is the distinction of the US versus other countries, IMO. the history of the judiciary to protect individual rights with a reasonable balance against the wills of the majority (civil rights), the wealthy, or against the state.

while economic good may be argued as public good, it is this same principle when the influence of wealthy and politically powerful is introduced that is one of the sole reasons 3rd world countries remain in the state they do.

end slippery slobe argument.
Title: Re: Supreme Court OK's seizure of personal property
Post by: Intuition on June 24, 2005, 05:37:52 PM
The best answer is for states to enact laws that prohibit cases like this. I know Florida already has a law which limits the use of eminent domain to seize land. I believe several other states have similar laws.

In a legal sense, this decision makes sense. Read the decision, read the cases it references. Economic improvement is a reasonable public use of land.


Of course, the smart thing would be for the owners to just sell to the developers anyway. I will almost guarantee that the developers will pay more for the land directly than if the local government invokes eminent domain.
Title: Re: Supreme Court OK's seizure of personal property
Post by: jwilcox1024 on June 25, 2005, 10:05:22 AM
The best answer is for states to enact laws that prohibit cases like this. I know Florida already has a law which limits the use of eminent domain to seize land. I believe several other states have similar laws.

In a legal sense, this decision makes sense. Read the decision, read the cases it references. Economic improvement is a reasonable public use of land.


Of course, the smart thing would be for the owners to just sell to the developers anyway. I will almost guarantee that the developers will pay more for the land directly than if the local government invokes eminent domain.

After Kelo you are probably right that a owner should sell ASAP. Before Kelo you might not want to sell because you really believed the taking of your property wasn't proper and no amount of money (or at least no amount that wasn't stratospheric) would make it worthwhile for you to move. I also wonder how much incentive developers will have to bargain in good faith after Kelo. If you know the gov't could seize the property with few roadblocks and sell the land to you at a lower rate, what incentive do you have to come up with a more expensive deal bargained with the land owner?
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 25, 2005, 11:26:50 AM

In a legal sense, this decision makes sense. Read the decision, read the cases it references. Economic improvement is a reasonable public use of land.


Of course, the smart thing would be for the owners to just sell to the developers anyway. I will almost guarantee that the developers will pay more for the land directly than if the local government invokes eminent domain.

Of course, any decision can be justified in any way by any court by referencing cases which, they argue, are binding to the case. Of course, there are dozens of other cases that could be cited to lead one to believe that the minority opinion "makes sense" from a common law or Constitutional perspective.

If economic concerns govern who can own property and who can't, it has potentially scary results. For example, lets say you own 10 acres in Napa, California, on which you plant maybe 80 acres of Gamay grapes. Let's say that Constellation Brands wants to start a winery on that land and uproot your vines and instead plant Cabernet Sauvignon grapes. According to this ruling, the Government can seize your property and let the corporation use it for its commercial venture which it believes will be more profitable, and hence more profitable in regard to tax revenues. Because there is no land of that size available (normally) in Napa, you have to leave the town, lest you wish to rent a house on apartment on no acreage.

How about a church? Certainly they aren't profitable, and a McDonalds would yeild far more tax revenues on the land. What if that is part of the Government's economic revitalization plan for the area?  Should the Government be able to raze a church to squeeze some money out of the land?
Title: Re: Supreme Court OK's seizure of personal property
Post by: InVinoVeritas on June 25, 2005, 12:00:07 PM
How about a church? Certainly they aren't profitable, and a McDonalds would yeild far more tax revenues on the land. What if that is part of the Government's economic revitalization plan for the area? Should the Government be able to raze a church to squeeze some money out of the land?

i'm not sure if you were merely posing a hypothetical or trying to be prophetic, but i did read about an instance in which land owned by a church was threatened with eminent domain, and the proposed development for the church-owned land was to be a Costco.

http://www.etchalon.com/becket/index.php/article/126.html
Title: Re: Supreme Court OK's seizure of personal property
Post by: St. Shaun on June 25, 2005, 01:41:46 PM
I just want to point out the judges that signed off on the decision and ones that dissented.  You'll notice that O'Conner wrote the dissent which was concurred by Lindquist, Thomas, and Scalia. 

Before you start going off on capitalist corruption, notice that it's the liberal judges who passed this one.  Thought I'd point that out.
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 25, 2005, 03:42:25 PM
I just want to point out the judges that signed off on the decision and ones that dissented.  You'll notice that O'Conner wrote the dissent which was concurred by Lindquist, Thomas, and Scalia. 

Before you start going off on capitalist corruption, notice that it's the liberal judges who passed this one.  Thought I'd point that out.


This issue was already discussed
I think you got it wrong--Thomas, Scalia, and Renquist (or Lindquist) were arguing from the perspective of the wealthy!!!!!!!!!!

I'd suggest that  the issue involved, in the trio's view, wasn't whether the "little guy" can have his home seized in the service of the interests of big business. Rather, the issue here was whether wealthy landowners can have the government seize the property in the service of big business, rather than letting the wealthy landowners rook the business for every last penny they can get.

Do poor people own property? No. Do rich people? Absolutely--lots of it. Vacation houses, rental real estate, apartment buildings, and thousands of acres of prime real estate. (Just go to California where just about anything over 100 acres is owned by wealthy persons who fully intend to sell to big business at high costs..eventually.) The holding in this case wasn't narrow--it wasn't that the Gov can take the little homes of the few working Joes. The decision has far greater significance to wealthy landowners.

Of course, O'Connor, a moderate, argued from a realist's view, and in my view of things, was correct. But the arguments made were ones which should have been applied equally to the dozens of other cases for which these same judges were, in my view, incorrect.
Title: Re: Supreme Court OK's seizure of personal property
Post by: Intuition on June 25, 2005, 08:51:01 PM
The best answer is for states to enact laws that prohibit cases like this. I know Florida already has a law which limits the use of eminent domain to seize land. I believe several other states have similar laws.

In a legal sense, this decision makes sense. Read the decision, read the cases it references. Economic improvement is a reasonable public use of land.


Of course, the smart thing would be for the owners to just sell to the developers anyway. I will almost guarantee that the developers will pay more for the land directly than if the local government invokes eminent domain.

After Kelo you are probably right that a owner should sell ASAP. Before Kelo you might not want to sell because you really believed the taking of your property wasn't proper and no amount of money (or at least no amount that wasn't stratospheric) would make it worthwhile for you to move. I also wonder how much incentive developers will have to bargain in good faith after Kelo. If you know the gov't could seize the property with few roadblocks and sell the land to you at a lower rate, what incentive do you have to come up with a more expensive deal bargained with the land owner?

I think real estate developers would still rather bargain with landowners instead of local government. You cut out the middle man and everyone can make a little more money. I'm sorry, but I truly don't understand the whole "no amount of money would make it worthwhile for you to move" argument. I'm not picking on your personally, because I feel like this is a very common sentiment in our country today.

My problem with that argument is that it's based on the idea that current conditions are always better than any future potential living conditions. People get comfortable living in an area, in the same house, for 20+ years and they don't feel like moving. But they don't realize that if they sell for a profit and move elsewhere, they will most likely have the money to have a better life. It boggles my mind. Of course, I'm the guy who doesn't believe in the sentimental value of any material good. Every material good is on a par with every other material good. They all exist in the same way. If they offer you the same utility, I cannot fathom preferring one material good to another.
Title: Re: Supreme Court OK's seizure of personal property
Post by: Intuition on June 25, 2005, 08:56:29 PM

In a legal sense, this decision makes sense. Read the decision, read the cases it references. Economic improvement is a reasonable public use of land.


Of course, the smart thing would be for the owners to just sell to the developers anyway. I will almost guarantee that the developers will pay more for the land directly than if the local government invokes eminent domain.

Of course, any decision can be justified in any way by any court by referencing cases which, they argue, are binding to the case. Of course, there are dozens of other cases that could be cited to lead one to believe that the minority opinion "makes sense" from a common law or Constitutional perspective.

If economic concerns govern who can own property and who can't, it has potentially scary results. For example, lets say you own 10 acres in Napa, California, on which you plant maybe 80 acres of Gamay grapes. Let's say that Constellation Brands wants to start a winery on that land and uproot your vines and instead plant Cabernet Sauvignon grapes. According to this ruling, the Government can seize your property and let the corporation use it for its commercial venture which it believes will be more profitable, and hence more profitable in regard to tax revenues. Because there is no land of that size available (normally) in Napa, you have to leave the town, lest you wish to rent a house on apartment on no acreage.

How about a church? Certainly they aren't profitable, and a McDonalds would yeild far more tax revenues on the land. What if that is part of the Government's economic revitalization plan for the area?  Should the Government be able to raze a church to squeeze some money out of the land?

1. I'm not quite sure that any decision can be justified by citing past cases. Let's be careful how we use absolute language here (I'm probably guilty of absolutel language myself, but it doesn't get us anywhere in the discussion).

2. So...why not sell your land to Constellation Brands? If you hold the last remaining property available like yours, then the company will most likely pay well above general market value for the land. But the case at issue will let them skip that step and seize your land through eminent domain, right? Well, first, central to the current case is that New London, CT has a detailed and thorough economic development plan to outline why they believe the purchase of this land is necessary. Second, I stand by the proposition that any commercial venture would rather leave the local government out of their plans entirely. If nothing else, it will save the company on legal costs. All you have to do is approach the company and make them an offer. They'll take it, you'll make a nice chunk of change, and then retire in the Bahamas.
Title: Re: Supreme Court OK's seizure of personal property
Post by: samt on June 25, 2005, 09:49:28 PM
   These arguments are fun and I do appreciate them having spent undergrad sloughing through Philosophy classes having to read Wittgenstein and translated Chinese religious texts I think we should bring it back to home.
 
   1. 99& of us are not lawyers or aspiring law students
   2.  We grow up with an understanding that the Constitution protects our basic rights as citizens
   3.  We now no longer have the right to own land without fear of a zealous entrepreneur or corporation with money and political connections being able to obtain our land, period.
   I don't know where the rest of you are from but here in the South where I live not a week goes by where you don't read or hear about collusion of the wealthy to do things most ordinary people disagree with or blatant corruption in the government (run a google search on the "Tennessee Waltz" scandal for fun).  People have always found ways to @#!* people, always will.  Dog and pony shows and abstract arguments aside, getting screwed in the ass is still getting screwed in the ass. As we no longer have direct constitutional protection of or basic rights to own land without a legitimate reason for the public good anyone with enough creativity, money, power, and patience can get what they want. 
    What do you guys think the long term implications of this are?  What rights will we lose next but not really care about because the economy's making us not REALLY worry about our upcoming Stafford and private loans?  I know what I sound like when I say this but I have to say it anyway, Picture a time when the economy is *&^% and the only piece of equity you have left is your house which can be taken by an individual or class of individuals who have both more political and monetary capital than you.  Being as how no one can accurately predict the future, we should all think of what the REAL implications of this decision is, not now but in the future.
Title: Re: Supreme Court OK's seizure of personal property
Post by: Intuition on June 25, 2005, 10:16:18 PM
Good points in general, as I agree that the implications of this decision can have far-reaching effects. As far as your 3rd proposition stated, I don't think it's entirely true across the board, just yet. We can still lobby our local governments to enact laws which define "public use" in a way we see fit. Just because SCOTUS says it's Constitutional to include economic plans in the definition of public use does not disallow us from excluding the idea from any local definition. SCOTUS has and always will defer to local legislatures in situations like this. So, let's use the power of our local legislatures to the fullest.

If not, why not just become rich and powerful, so YOU will be the one paying off local government officials and keeping a couple power brokers in your pocket at every turn?! That's my plan.
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 26, 2005, 10:52:02 AM

In a legal sense, this decision makes sense. Read the decision, read the cases it references. Economic improvement is a reasonable public use of land.


Of course, the smart thing would be for the owners to just sell to the developers anyway. I will almost guarantee that the developers will pay more for the land directly than if the local government invokes eminent domain.

Of course, any decision can be justified in any way by any court by referencing cases which, they argue, are binding to the case. Of course, there are dozens of other cases that could be cited to lead one to believe that the minority opinion "makes sense" from a common law or Constitutional perspective.

If economic concerns govern who can own property and who can't, it has potentially scary results. For example, lets say you own 10 acres in Napa, California, on which you plant maybe 80 acres of Gamay grapes. Let's say that Constellation Brands wants to start a winery on that land and uproot your vines and instead plant Cabernet Sauvignon grapes. According to this ruling, the Government can seize your property and let the corporation use it for its commercial venture which it believes will be more profitable, and hence more profitable in regard to tax revenues. Because there is no land of that size available (normally) in Napa, you have to leave the town, lest you wish to rent a house on apartment on no acreage.

How about a church? Certainly they aren't profitable, and a McDonalds would yeild far more tax revenues on the land. What if that is part of the Government's economic revitalization plan for the area?  Should the Government be able to raze a church to squeeze some money out of the land?

1. I'm not quite sure that any decision can be justified by citing past cases. Let's be careful how we use absolute language here (I'm probably guilty of absolutel language myself, but it doesn't get us anywhere in the discussion).

2. So...why not sell your land to Constellation Brands? If you hold the last remaining property available like yours, then the company will most likely pay well above general market value for the land. But the case at issue will let them skip that step and seize your land through eminent domain, right? Well, first, central to the current case is that New London, CT has a detailed and thorough economic development plan to outline why they believe the purchase of this land is necessary. Second, I stand by the proposition that any commercial venture would rather leave the local government out of their plans entirely. If nothing else, it will save the company on legal costs. All you have to do is approach the company and make them an offer. They'll take it, you'll make a nice chunk of change, and then retire in the Bahamas.

As they say, if a lawyer can't find a case, any case, on which to base such a cause of action (we are talking E.D. claims here, so there isn't isolated statutory analysis involved, he is either 1) lazy, 2) incompetent, or 3) both lazy and incompetent. What you deem absolutism I deem realism. That isn't to say the argument will be particularly earth-shatteringly obvious and universally accepted, but that isn't necessary for law, nor the courts--particularly the Supreme Court.

Of course, you added something to the hypothetical that I did not--the assumption that the Napa landowner is concerned about money. This isn't a concern, necessarily, of the parties involved in the SC case, nor will it be involved in the countless of such cases that will stem from the decision. Sure, having Constellation Brands breathing down your need and salivating at the thought of owning your land will make you wealthy, but if you own 10 acres in Napa you, by definition, are probably already wealthy, and even if you are not, if you wanted to be you'd merely sell to someone without the concern of E.D. seizure.

I disagree on one point, based on experience. When a business has the capacity to secure anything by going through the Government, it is not easier--that I will concede--but because that is an option, that is a bargaining tool that business can use to pressure a purchase at their terms, not the terms of the seller. Let's say CB offers the Napa landowner $10 million dollars for the property. Does the possibility that the government may seize the property and settle for what the state considers "fair market value" (in CA that tends to be 80 cents on the dollar nowadays) make acceptance more or less likley? I'd say logic dictates that you'd be able to get more out of the business if CB had absolutely no option other than offering more money if it wanted to get the property.
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 26, 2005, 11:00:49 AM
Good points in general, as I agree that the implications of this decision can have far-reaching effects. As far as your 3rd proposition stated, I don't think it's entirely true across the board, just yet. We can still lobby our local governments to enact laws which define "public use" in a way we see fit. Just because SCOTUS says it's Constitutional to include economic plans in the definition of public use does not disallow us from excluding the idea from any local definition. SCOTUS has and always will defer to local legislatures in situations like this. So, let's use the power of our local legislatures to the fullest.

If not, why not just become rich and powerful, so YOU will be the one paying off local government officials and keeping a couple power brokers in your pocket at every turn?! That's my plan.

You are right, in a sense. After all, even if Roe v. Wade were overturned, and the SC no longer found "privacy rights" to reside in the Constitution, the vast majority of states will still permit abortion. Then, as you point out, such an issue would be for the legislature to decide.
But, the implications for a state criminalizing it, or even its discussion (think Griswold v CT), tends to violate what many people think of when we contemplate whether the Constitution gives us true freedom, and from what does it give us freedom?
Title: Re: Supreme Court OK's seizure of personal property
Post by: Intuition on June 26, 2005, 04:52:59 PM
Too many good points to cite them all Bosco. Been a while since I enjoyed a discussion as much as this one.

As I mentioned previously, my goal is to become wealthy and powerful enough so that local governments will be helping out my businesses rather than taking my house.  ;D
Title: Re: Supreme Court OK's seizure of personal property
Post by: CatLogos on June 27, 2005, 08:30:57 AM
As perspective/current law students, we should all know how long the political process takes. We can't let our generation of intellects in the field of law make the same mistakes as the current policy makers. (i.e. Recent SC/Ex/Leg decisions) Although some of us aspire for fortune-we MUST consider the other 99% who don't know how to work within the system. Assisting them is our ultimate duty. Utilitarianism and Individualism are not a cohesive match. Time will tell...
Title: Re: Supreme Court OK's seizure of personal property
Post by: Intuition on June 27, 2005, 11:01:02 AM
As perspective/current law students, we should all know how long the political process takes. We can't let our generation of intellects in the field of law make the same mistakes as the current policy makers. (i.e. Recent SC/Ex/Leg decisions) Although some of us aspire for fortune-we MUST consider the other 99% who don't know how to work within the system. Assisting them is our ultimate duty. Utilitarianism and Individualism are not a cohesive match. Time will tell...

I disagree wholeheartedly that utilitarianism and individualism are not a cohesive match. I reach my highest utility for society when I reach the potential I have as an individual. But your point about considering the 99% who don't know the system is well taken.
Title: Re: Supreme Court OK's seizure of personal property
Post by: amarain on June 27, 2005, 12:42:57 PM
This issue was already discussed
I think you got it wrong--Thomas, Scalia, and Renquist (or Lindquist) were arguing from the perspective of the wealthy!!!!!!!!!!

I'd suggest that  the issue involved, in the trio's view, wasn't whether the "little guy" can have his home seized in the service of the interests of big business. Rather, the issue here was whether wealthy landowners can have the government seize the property in the service of big business, rather than letting the wealthy landowners rook the business for every last penny they can get.

Do poor people own property? No. Do rich people? Absolutely--lots of it. Vacation houses, rental real estate, apartment buildings, and thousands of acres of prime real estate. (Just go to California where just about anything over 100 acres is owned by wealthy persons who fully intend to sell to big business at high costs..eventually.) The holding in this case wasn't narrow--it wasn't that the Gov can take the little homes of the few working Joes. The decision has far greater significance to wealthy landowners.

Of course, O'Connor, a moderate, argued from a realist's view, and in my view of things, was correct. But the arguments made were ones which should have been applied equally to the dozens of other cases for which these same judges were, in my view, incorrect.

How do you know that they were "arguing from the perspective of the wealthy"? I couldn't find a separate dissenting opinion written by Scalia or the others besides O'Connor. Is there one?

If there is not, then I'm inclined to think that you would criticize them no matter what, simply because they're conservative and you don't like conservatives. Either he rules in favor "oh, he's just in favor of the evil corporations seizing the land of the poor!" or he rules against and it's "oh, he's just concerned about the evil government seizing the land of the rich people!" Of course, to the liberal you're willing to ascribe the best of motives...
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 27, 2005, 01:46:00 PM
This issue was already discussed
I think you got it wrong--Thomas, Scalia, and Renquist (or Lindquist) were arguing from the perspective of the wealthy!!!!!!!!!!

I'd suggest that  the issue involved, in the trio's view, wasn't whether the "little guy" can have his home seized in the service of the interests of big business. Rather, the issue here was whether wealthy landowners can have the government seize the property in the service of big business, rather than letting the wealthy landowners rook the business for every last penny they can get.

Do poor people own property? No. Do rich people? Absolutely--lots of it. Vacation houses, rental real estate, apartment buildings, and thousands of acres of prime real estate. (Just go to California where just about anything over 100 acres is owned by wealthy persons who fully intend to sell to big business at high costs..eventually.) The holding in this case wasn't narrow--it wasn't that the Gov can take the little homes of the few working Joes. The decision has far greater significance to wealthy landowners.

Of course, O'Connor, a moderate, argued from a realist's view, and in my view of things, was correct. But the arguments made were ones which should have been applied equally to the dozens of other cases for which these same judges were, in my view, incorrect.

How do you know that they were "arguing from the perspective of the wealthy"? I couldn't find a separate dissenting opinion written by Scalia or the others besides O'Connor. Is there one?

If there is not, then I'm inclined to think that you would criticize them no matter what, simply because they're conservative and you don't like conservatives. Either he rules in favor "oh, he's just in favor of the evil corporations seizing the land of the poor!" or he rules against and it's "oh, he's just concerned about the evil government seizing the land of the rich people!" Of course, to the liberal you're willing to ascribe the best of motives...
Sounds to me it is you who are jumping to conclusions. When making evaluations, one considers the totality of one’s decision, not merely one statement. We would not need to hear Ralph Nader’s opinion to have a sense of what he was most likely thinking in making decisions, albeit non-judicial ones. Those who suggest his opinions are based on his political ideology’s bias in favor of the underclass wouldn’t be wrong in saying so, nor would it reflect partisan bias.  In my view, your rationale is faulty. But what about your conclusion? Do I “dislike” Scalia because he is conservative. Actually, Kennedy and O’Connor are both conservative (in the accurate definition of the term) and I consider them to be ideal Supreme Court justices, even though I may disagree with them frequently. They, however, have not established a tradition which leads me to question their motives. And certainly, the statement that I “don’t like conservatives” presupposes that I am not one (which I very well may be).

What I do dislike is hypocrisy, which is not limited to either political spectrum (e.g., Breyer in the Ten Commandments cases). Thus, despite agreeing with Scalia's decision, I abhor the hipocrisy of it in the context of other decisions (strict constructionist on social issues, but then massively wild-and-loose interpretations of the Commerce Clause and other Federal provisions).
Title: Re: Supreme Court OK's seizure of personal property
Post by: St. Shaun on June 27, 2005, 09:39:50 PM



This issue was already discussed
I think you got it wrong--Thomas, Scalia, and Renquist (or Lindquist) were arguing from the perspective of the wealthy!!!!!!!!!!
Of course, O'Connor, a moderate, argued from a realist's view, and in my view of things, was correct. But the arguments made were ones which should have been applied equally to the dozens of other cases for which these same judges were, in my view, incorrect.

First off, the trio concurred with O'Conners dissent.  I don't get how your seperating them.  Secondly, the facts of this case (and it is fairly narrowly held) go exactly against your conclusion about the trios motives.  A poor couple who have owned their home for 50 years, come on.

The trios motives would more accurately be described as a libertarian leaning.  Besides wealthy land oweners don't fear city counsels seizing their lands because they have such strong influence on the counsels.  That's what really makes this decision stink to me.  The wealthy (land owners and developers) have alot of influence on the city and state level.  This opens the door for mass seizure of the largly lower class.  To argue otherwise is pretty naive.
Title: Re: Supreme Court OK's seizure of personal property
Post by: Amanda H. on June 28, 2005, 01:31:45 AM



This issue was already discussed
I think you got it wrong--Thomas, Scalia, and Renquist (or Lindquist) were arguing from the perspective of the wealthy!!!!!!!!!!
Of course, O'Connor, a moderate, argued from a realist's view, and in my view of things, was correct. But the arguments made were ones which should have been applied equally to the dozens of other cases for which these same judges were, in my view, incorrect.

First off, the trio concurred with O'Conners dissent.  I don't get how your seperating them.  Secondly, the facts of this case (and it is fairly narrowly held) go exactly against your conclusion about the trios motives.  A poor couple who have owned their home for 50 years, come on.

The trios motives would more accurately be described as a libertarian leaning.  Besides wealthy land oweners don't fear city counsels seizing their lands because they have such strong influence on the counsels.  That's what really makes this decision stink to me.  The wealthy (land owners and developers) have alot of influence on the city and state level.  This opens the door for mass seizure of the largly lower class.  To argue otherwise is pretty naive.


Agreed.

They weren't arguing from the "perspective of the wealthy".  They were arguing in defense of basic property rights, which are essential in a free society.  (One of the other "checks and balances" that help keep the government in line.  It's not a coincidence that those societies without private property rights have always been oppressive and totalitarian.) 

Just because wealthy people value property rights doesn't mean that it's not also important to the ordinary citizen -- as this case clearly indicates.
Title: Re: Supreme Court OK's seizure of personal property
Post by: BoscoBreaux on June 28, 2005, 02:34:00 PM



This issue was already discussed
I think you got it wrong--Thomas, Scalia, and Renquist (or Lindquist) were arguing from the perspective of the wealthy!!!!!!!!!!
Of course, O'Connor, a moderate, argued from a realist's view, and in my view of things, was correct. But the arguments made were ones which should have been applied equally to the dozens of other cases for which these same judges were, in my view, incorrect.

First off, the trio concurred with O'Conners dissent.  I don't get how your seperating them.  Secondly, the facts of this case (and it is fairly narrowly held) go exactly against your conclusion about the trios motives.  A poor couple who have owned their home for 50 years, come on.

The trios motives would more accurately be described as a libertarian leaning.  Besides wealthy land oweners don't fear city counsels seizing their lands because they have such strong influence on the counsels.  That's what really makes this decision stink to me.  The wealthy (land owners and developers) have alot of influence on the city and state level.  This opens the door for mass seizure of the largly lower class.  To argue otherwise is pretty naive.


Agreed.

They weren't arguing from the "perspective of the wealthy".  They were arguing in defense of basic property rights, which are essential in a free society.  (One of the other "checks and balances" that help keep the government in line.  It's not a coincidence that those societies without private property rights have always been oppressive and totalitarian.) 

Just because wealthy people value property rights doesn't mean that it's not also important to the ordinary citizen -- as this case clearly indicates.

According to your argument, stated rationale is a pure reflection of one’s beliefs. I would suggest, however, that is not the case, for if it were true, those same principles would be applied evenly across cases. Instead, many justices tend to “cherry pick” which argument makes their holding most pallettable. (NeoCons sounding more like Ralph Nader than Ralph Reed this time ‘round.)  Of course, if Scalia and Thomas had long traditions of championing the needs of those impoverished souls that held steadfastly to their little abodes, maybe I’d infer that to be the thrust of their concerns.

Basic property rights. By definition, those without property don’t have property rights, in a de facto sense. Only those with property rights have property rights. Up until startlingly recently, only wealthy white males could own property. See a trend here? In 1790, if you upheld property rights, you are largely championing the rights of the wealthy (specifically, wealthy whites). Now, virtually anyone is legally able to buy real property, but those who are wealthy have a far greater capacity for it then everyone else. To suggest that there is no tie between upholding property rights and upholding the interests of the wealthy is inaccurate.

Regardless, I’d admit speculation is pervasive here.
Title: Re: Supreme Court OK's seizure of personal property
Post by: InVinoVeritas on June 28, 2005, 03:03:48 PM

The trios motives would more accurately be described as a libertarian leaning.  Besides wealthy land oweners don't fear city counsels seizing their lands because they have such strong influence on the counsels.  That's what really makes this decision stink to me.  The wealthy (land owners and developers) have alot of influence on the city and state level.  This opens the door for mass seizure of the largly lower class.  To argue otherwise is pretty naive.


i minor quibble here.  i don't think wealthy people have nothing to fear because they wield inordinate influence in local government.  wealthy property owners are immune mostly because the property they own tends to be valuable.  The homes of the wealthy are not they types of homes taken with an eye to economic redevelopment.  Afterall, the goals of develpment agencies are typcially to produce the kinds of real estate that produce lots of tax revenue.