The Volokh Conspiracy

The Institute for Justice, a leading libertarian public interest law firm that has litigated numerous property rights cases, reports that the Illinois state senate has passed a bill authorizing the use of eminent domain for the benefit of casinos:

The bill passed 32-20 in the state Senate on May 1 and is now being considered by the House Executive Committee. Gov. Pat Quinn has previously vetoed two Chicago casino bills in the past. However, while the governor still has concerns about this new casino bill, he has indicated he could sign, so long as gambling revenue funds education and ethics standards are tightened. (After all, four of Illinois’ last seven governors have gone to prison.) Yet casinos abusing eminent domain apparently hasn’t crossed Quinn’s mind.

As the IJ post notes, takings for the benefit of casino interests have occurred in other states, and often lead to the same sorts of abuses as other “economic development” condemnations of the type upheld by the federal Supreme Court in Kelo v. City of New London. Such takings are routinely used by politically powerful firms to acquire property from the politically weak. They also often destroy more economic value than they create. I discuss these problems in much more detail in this article.

In the aftermath of Kelo, some 44 states passed eminent domain reform laws intended to curb such abuses. But Illinois’ law is one of many that contain major loopholes that prevent them from providing much in the way of meaningful protection for property owners. The IJ post notes that Illinois’ 2006 law rates only a D+ under their grading scale.

Hopefully, the Illinois House of Representatives will reject the Senate bill. The legislation is currently before the House Executive Committee. If the House does not reject the bill, it is possible that state courts would strike it down. In a 2002 decision, the Illinois Supreme Court ruled that the potential economic benefits of expanding the operations of a private business is not a “public use” justifying the use of eminent domain under the state Constitution. As the Court put it (quoting a lower-court dissenting opinion), “the economic by-products of a private capitalist’s ability to develop land cannot justify a surrender of ownership to eminent domain.” At least some takings for the benefit of casino interests could run afoul of this ruling, although the state supreme court did not categorically ban all takings that transfer land to private parties for economic development purposes.

UPDATE: I have made a few stylistic revisions to this post.

As Damon Root notes, The Supreme Court recently refused to consider Ilagan v. Ungacta, an important Public Use Clause property rights case. I wrote an amicus brief on behalf of numerous public interest organizations and law professors urging the Court to take Ilagan and use it as an opportunity to clear up major ambiguities left over after Kelo v. New London, and also as a vehicle for reversing Kelo itself. I discussed the significance of the case in this post:

Ilagan v. Ungacta is a fairly egregious case where land was condemned for the purpose of benefiting a powerful private party, in this case the then-mayor of Agana, Guam, and his family (the new owners of the condemned property). In Kelo v. City of New London, one of the most widely opposed decisions in Supreme Court history, the Court ruled that the Public Use Clause of the Fifth Amendment allows condemnations for virtually any “public purpose,” including transferring property from one private owner to another in hopes of stimulating greater “economic development.” But the Court also noted that government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.” Unfortunately, neither Kelo nor other Supreme Court decisions have made clear what it means for a taking to be “pretextual.”

[L]ower federal courts and state supreme courts have come up with at least five different approaches to deciding what counts as a pretextual taking....

Ilagan is a great case for the Court to clarify the meaning of pretext because it includes all four possible indicators of pretext identified by various lower court decisions: dubious motives, a highly skewed distribution of benefits, lack of careful planning, and a major private beneficiary whose identity was obvious in advance of the taking...

[T]his case is also a good opportunity for the Court to consider overruling Kelo.... [T]he case for overruling Kelo easily qualifies under the Court’s traditional standards for overruling a constitutional decision: Among other things, the ruling was based on poor reasoning, it has been widely criticized, and its recent nature ensures that it has not yet created much in the way of reliance interests. Most strikingly, the Court should reconsider Kelo because retired Justice John Paul Stevens, the author of the Kelo majority opinion, has publicly admitted that his reasoning was based in part on what he calls an “embarrassing to admit” mistake.

With rare exceptions, the odds against the Supreme Court accepting any particular case are usually long. For that reason, this outcome is not surprising, though it is still disappointing. But we are still going to continue our efforts to persuade the Court to both clarify the meaning of “pretext” and overrule Kelo.

From Hillcrest Property, LLP v. Pasco County (M.D. Fla. Apr. 12, 2013):

Before 2025 Pasco County must build more and larger roads to accommodate the inevitable increase in automobile traffic. Preferring to avoid the payment of “just compensation” after acquiring the necessary land by eminent domain, Pasco County has hatched a novel and effective but constitutionally problematic idea, a most uncommon regulatory regime that is crowned by Pasco County’s “Right of Way Preservation Ordinance.”

The unremarkable part of the regime designates new “transportation corridors,” which expand certain Pasco County highways. The specific instance contested in this action designates a new transportation corridor that widens State Road 52, an arterial east-west highway in Pasco County, and identifies the boundaries of State Road 52′s future right-of-way. For most landowners, whose land is encroached by the transportation corridor but who have no plans to develop the land adjacent to the encroached land, no immediate consequence (and no constitutional jeopardy) occurs; Pasco County will take the expanded right-of-way—when needed—by eminent domain and will pay “just compensation” as determined by a jury in a Pasco County circuit court.

The remarkable part of the regime and the constitutional mischief appear in the instance of a landowner whose land is encroached by the new transportation corridor but who plans to develop the remaining land, which adjoins the encroachment. The Ordinance requires Pasco County to deny the landowner’s development permit and to forbid development of the land adjoining the new transportation corridor unless the landowner “dedicates” (conveys in fee simple) to Pasco County — for free — the land within the new transportation corridor. In other words, to avoid the nettlesome payment of “just compensation,” the Ordinance empowers Pasco County to purposefully leverage the permitting power to compel a landowner to dedicate land encroached by a transportation corridor. In Pasco County, if there is no free dedication, there is no permit.

As the Pasco County Attorney proudly declares, “The right of way preservation ordinance [ ] drafted and defended by this office (which is one of only a few in the state) saves the County millions of dollars each year in right of way acquisition costs, business damages and severance damages.” This bully result is effected by threatening to deny every proposed new use of private land, from medical clinic to beauty parlor, from restaurant to bait shop, and by coercing everyone, great and small, rich and poor, popular and unpopular, unless the landowner completes the mandatory “voluntary” dedication of real estate....

Because the Ordinance’s modus operandi is not yet common, neither party cites legal authority directly deciding the constitutionality of an identical ordinance. Nonetheless, the features of the Ordinance are striking (and, as the Pasco County Attorney confirms, startlingly effective) and constitutional examination is essential. If constitutional, the Ordinance undoubtedly will become quickly fashionable, as counties seize a singular opportunity to procure land for public use by the thrifty expedient of coerced conveyance rather than by the historically and constitutionally prescribed mechanism of eminent domain (which is, viewed from a county’s vantage, encumbered by the strictures of “due process” and “just compensation” and burdened by both the supervision of an independent judge and the informed discretion of a disinterested jury).

And the court’s conclusion, after many pages of analysis:

Pasco County has enacted an ordinance that effects what, in more plain-spoken times, an informed observer would call a “land grab,” the manifest purpose of which is to evade the constitutional requirement for “just compensation,” that is, to grab land for free. Viewed more microscopically, Pasco County’s Ordinance designs to accost a citizen as the citizen approaches the government to apply for a development permit, designs to withhold from a citizen the development permit unless the citizen yields to an extortionate demand to relinquish the constitutional right of “just compensation,” and designs first and foremost to accumulate — for free — land for which a citizen would otherwise receive just compensation.

Aware undoubtedly of the brazenness of the Ordinance, Pasco County has garnished the Ordinance, has disguised the Ordinance, has planted in the Ordinance a distraction, using the familiar phrase “roughly proportional” or “rough proportionality,” words intended to evoke the soothing reassurance of the Supreme Court’s decision in Dolan, words intended to deploy aggressively the foggy notion that if the words “roughly proportional” appear in a scheme to regulate land, the scheme is constitutional. Not so.

The parties laboriously briefed in this action an array of theories. Both the magistrate judge and I have examined, exhaustively and exhaustingly, the contending theories, briefed and unbriefed. The magistrate judge has opined formidably. Accepting the magistrate judge’s report for the most part but viewing the law in part from a slightly different vantage, I contribute some additional analysis and accept the magistrate judge’s conclusion. Another judge might find the magistrate judge’s opinion or this opinion inexact in this or that particular of constitutional law. Nonetheless, this Ordinance is an unmistakable, abusive, and coercive misapplication of governmental power, perpetrated to cynically evade the Constitution. The Ordinance cannot stand, whether for the precise reasons stated here or for a related reason.

Last week, I blogged about how the Alabama state legislature recently adopted a bill that undermines its post-Kelo eminent domain reform law and opens the door to the taking of private property for transfer to a wide range of politically connected private interests. Two state senators who sponsored the law have claimed that their bill doesn’t really expand eminent domain authority [HT: John Ross, who is similarly skeptical about the sponsors' denials]:

A new law designed to help lure high-tech manufacturing jobs to Alabama does not give cities greater eminent domain powers, several people involved in the legislation said Monday....

state Sen. Arthur Orr, R-Decatur, said that’s simply not the case. Orr said the “Major 21st Century Manufacturing Zone Act” does nothing to change or broaden eminent domain laws....

State Sen. Bill Holtzclaw, R-Madison, said he is “very big on personal property owner rights” and would not have co-sponsored the legislation if he thought it might be used to expand the use of eminent domain.

“I’ve been adamantly opposed to that,” Holtzclaw said Monday. “If there’s something there that was unintentional, we’ll close the loop on it.”

These denials are dubious, at best. The relevant legislation, Senate Bill 96 contains the following language:

It is further found and declared that the powers conferred by this chapter are for public and, in the case of automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities, private uses and purposes imbued with a public interest and for which public money may be expended, either directly or indirectly, in the case of automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities, and the power of eminent domain and police power exercised.

The language in bold is wording that the new bill added to preexisting law. Note that the whole section is, among other things, a list of purposes – now including “private” purposes – for which “the power of eminent domain” may be “exercised.” Those purposes now include private firms that are “automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities.” In other words, an enormous range of private businesses can now lobby to have the power of eminent domain used to transfer property to them, usually at the expense of the poor and politically weak.

This new authority is mostly limited to areas that contain “underutilized large tracts of real property suitable for the location of automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities which, when serving as the site therefor, enhances the public benefit and welfare by, among other things, facilitating the creation of skilled manufacturing jobs, promoting local economic development and the stimulation of the local economy, creating additional tax revenues, and enhancing the public’s overall quality of life.” But this is not much of a constraint. Almost any area can be considered “underutilized” relative to some other more intensive use of the same property. In addition, the new owners of the condemned land are not legally required to in fact ensure that the local economy will indeed improve relative to what would have happened otherwise. And, obviously, if the area were not “suitable” for the business the new owner operates, they probably would not try to have it seized for their benefit in the first place. Similar laws in other states have simultaneously endangered property rights and set back the very economic development they are supposedly intended to produce. We cannot know for certain what Alabama courts will make of the new law. But the most likely result is a major expansion of eminent domain authority.

I don’t know whether Senator Orr and Senator Holtzclaw are being disingenuous, got bad advice from staff or outside lawyers, or simply don’t realize what was in the bill they sponsored. The latter is certainly possible in an age where lawmakers often vote for laws they have little understanding of. If it really was an “unintentional” error, as Holtzclaw suggests might have occurred, he and his colleagues can demonstrate their good intentions by passing a new bill that repeals the language quoted above.

Finally, I should acknowledge that the two senators issued their denials before I wrote my initial post on this issue on April 3. I wrote that post in a hurry, did not do as much research as I should have, and as a result, did not run across their statements until today. I regret that oversight, even though the denials do not change my evaluation of the bill.

In the aftermath of the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, which ruled that state and local governments could condemn property for transfer to private parties for “economic development,” 44 states passed eminent domain reform laws intended to curtail abusive condemnations. Many of the new laws only pretended to curb the use of eminent domain without actually doing so. But Alabama was one of the exceptions, passing one of the nation’s better post-Kelo reforms. Unfortunately, as John Ross of Reason explains, the Alabama state legislature has now largely reversed its post-Kelo reform law, opening the door for condemnations that benefit powerful private interests at the expense of the poor and politically weak:

This month, Alabama Governor Robert Bentley signed into law a bill that allows local officials to condemn private property and turn it over to private developers.

Alabama’s statutes had contained some of the best protections in the nation for property owners; officials couldn’t seize property for private development unless it was a true threat to human health and safety.

Welcome back to the bad old days.

Advertised as a tool to attract industry to Alabama, the new law (the Major 21st Century Manufacturing Zone Act) expands tax subsidies for companies that open a manufacturing facility of at least 250 acres. It also allows municipal officials to seize property for “private uses and purposes imbued with a public interest” like auto factories, biomedical facilities, and pharmaceutical plants.

Officials can now condemn property they deem “blighted,” which, since the statutory definition of the term is so subjective, could be nearly any property.

As I discuss in this article, such “economic development” takings not only often victimize the politically weak for the benefit of powerful private interests, but also regularly fail to actually produce the development that supposedly justified the condemnation in the first place. That’s exactly what happened in Kelo itself, where nothing has been built on the condemned property, even eight years after the Supreme Court’s decision in the case.

Due in considerable part to widespread political ignorance (most voters lack the time and expertise needed to tell the difference between effective reform laws and purely symbolic ones), state legislators often were able to pass off cosmetic reform laws as genuine solutions to the problem eminent domain abuse. Recent events in Alabama highlight the risk that even strong post-Kelo reform laws can be undermined as the public understandably shifts its attention to new issues.

Today, the Baltimore Sun published a detailed story about Towson University Professor Benjamin Neil, who has been accused of numerous instances of plagiarism, especially in a 2012 article on Kelo v. City of New London and post-Kelo eminent domain reform which has since been withdrawn by the Journal of Academic and Business Ethics:

A longtime Towson University professor has resigned his post as the head of the city school system’s ethics panel amid allegations that his published academic articles contain content from dozens of sources without proper — or in some cases any — attribution.

University officials and journal publishers say they are reviewing several articles submitted by Benjamin A. Neil, a legal affairs professor, after a librarian at another university alerted them to the issue.

A Baltimore Sun review of five papers published by Neil shows passages with identical language and others with close similarities to scholarly journals, news publications, congressional testimony, blogs and websites. In many cases, there was no attribution.

Neil, who has taught at Towson for more than 20 years, says he properly attributed work from other authors.

“I don’t think I’ve done anything wrong,” said Neil, 62. “The issue seems to be that I didn’t put things in quotes. But I’ve given attribution to people....”

Meanwhile, some of his colleagues across the country and authors of the original material who were contacted by The Sun criticized what they called “lazy plagiarism” and a breach of academic integrity. Experts say the incident highlights the pressures that professors feel to publish.

“It’s completely unacceptable conduct, particularly for a professor,” said Jeffrey Beall, a scholarly initiatives librarian at the University of Colorado, Denver who contacted Towson officials and journals about the alleged plagiarism.

It so happens that I was one of the scholars whom Neil plagiarized in his since-withdrawn article “Eminent Domain: In Theory – It Makes Good Cents.” Here is a site created by the Baltimore Sun which gives several examples of plagiarism from that article, including the one Neil copied from my 2007 Northwestern University Law Review article, “Is Post-Kelo Eminent Domain Reform Bad for the Poor.”

Here is the relevant excerpt from Neil’s article (which does not cite or mention mine in any way):

Professor David Dana, in his essay published in the Northwestern University Law Review, suggests that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for “economic development,” but allow the condemnation of land on which poor people live under the guise of alleviating “blight”. This, he claims, results in reform laws that “privilege the stability of middle-class households relative to the stability of poor households” and “express the view that the interests and needs of poor households are relatively unimportant.” [footnotes omitted, but I emphasize that none of those notes cited my 2007 article]

Here is what I wrote:

In a recent essay in the Northwestern University Law Review, Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for economic development, but allow the condemnation of land on which poor people live under the guise of alleviating blight.This, he claims, results in reform laws that privilege[] the stability of middle-class households relative to the stability of poor house-holds and “express[] the view that the interests and needs of poor house-holds are relatively unimportant.”

With the exception of a small change in the first sentence, Neil has copied my text verbatim. That’s a fairly clear case of plagiarism. At the same time, it’s a relatively minor one. The passage in question is short and merely summarizes David Dana’s work, rather than putting forward any original ideas of my own. And Neil did cite Dana (or rather copied my citations to him). Any harm to me was probably insignificant.

If this were the only case of plagiarism in Neil’s work, I would say he deserves only very modest punishment. It might even be sufficient if he fixed the problem, apologized, and promised not to do it again. But, as the Sun article explains in detail, this is just one of many plagiarized passages in Neil’s articles. Some of the others were a lot more egregious than this one. That suggests an ongoing pattern of misconduct, not just an isolated, possibly inadvertent, error.

Serial plagiarizing of others’ work is not just a discourtesy to those authors who didn’t get proper credit. It is also a violation of the academic’s duty to contribute to our knowledge by developing new ideas, rather than merely copying what others said previously. It will be interesting to see the results of Towson University’s investigation into this case.

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is a start at a topic that is worthy of much additional scholarly exploration.

On Thursday, March 14, I will be giving a talk on “Property Rights Since Kelo” at the University of Michigan Law School. The event will run from 11:45 to about 12:50.

I will cover both the legislative and judicial reactions to the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, which ruled that the Fifth Amendment allows government to take property from one private owner and give it to another simply on the basis that the new owner might promote “economic development” in the area. Much has happened since Kelo, which generated the broadest legislative reaction of any decision in Supreme Court history, with 44 states and the federal government passing eminent domain reform laws in its wake. While important progress has been made in protecting property owners, much remains to be done.

University of Michigan property Professor James Krier, coauthor of the widely-used Dukeminier and Krier property law textbook, will comment on my talk. The event is sponsored by the University of Michigan Law School Federalist Society.

On Monday, March 11, I will be debating Georgetown Law Professor Michael Seidman at the Rutgers University School of Law in Camden, NJ, on the subject of whether the Constitution protects economic rights, broadly defined to include property rights as well as freedom of contract. The event will begin at 11 AM and continue for about 90 minutes or so. Rutgers Professor Earl Maltz will moderate.

It is often argued that regulatory takings doctrine is a form of “Lochnerism” and a revival of “substantive due process” constraints on economic regulation.  So, for instance, in his Dolan v. Tigard dissent, Justice Stevens traces the history of the doctrine to the Lochner period and finds the roots of regulatory takings doctrine in late-19th century substantive due process.

The so called “regulatory takings” doctrine . . . has an obvious kinship with the line of substantive due process cases that Lochner exemplified. Besides having similar ancestry, both doctrines are potentially open ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair.

As a historical matter, Justice Stevens was correct that the first decisions obligating states to compensate  landowners for the taking private property for public use  (Chicago, Burlington & Quincy Railroad v. Chicago) and holding that the regulation of land use could require compensation if it “goes too far” (Pennsylvania Coal v. Mahon) date from the so-called “Lochner era.”  Curiously enough, the authors of these two opinions are, respectively, Justice John Marshall Harlan and Justice Oliver Wendell Holmes.  Why is this curious?  Because Justices Harlan and Holmes wrote the two dissenting opinions in Lochner.  So while contemporary commentators and critics may see regulatory takings doctrine as Lochnerism reborn.  Those who challenged Lochner at the time apparently saw things differently.

Legendary Nobel Prize-winning economist and legal scholar Ronald Coase has just published a new book, How China Became Capitalist, coauthored with political scientist Ning Wang. It’s incredible that Coase is still publishing books at the age of 102! He puts the rest of us academics to shame.

Coase and Wang summarize their thesis in this article in the Cato Policy Report:

No one foresaw that the “socialist modernization” that the post-Mao Chinese government launched would in 30 years turn into what scholars today have called China’s great economic transformation. How the actions of Chinese peasants, workers, scholars, and policymakers coalesce into this unintended consequence is the story we tried to capture. Today, we don’t need to present any statistical data to convince you the rise of the Chinese economy, even though China still faces enormous challenges ahead. Many Chinese are still poor, far fewer Chinese have access to clean water than to cell phones, and they still face many hurdles in protecting their rights and exercising their freedom. Nonetheless, China has been transformed from the inside out over the past 35 years. This transformation is the story of our time. The struggle of China, in other words, is the struggle of the world.

Against conventional wisdom, we take the end of 1976 as the start of post-Mao reform and argue that China basically became a market economy by the end of the 90s before it joined the World Trade Organization in 2001. In the new millennium, the Chinese economy has kept its growth momentum and become more integrated with the global economy. As an account of how China became capitalist, our book focuses mainly on the first two decades of reform.

As a property scholar, I was particular interested in Coase and Wang’s emphasis on the crucial importance of the reestablishment of private property in agriculture:

There is no doubt that the post-Mao Chinese government pursued a series of reforms. But today, with the benefit of hindsight, we know that the economic forces that were really transforming the Chinese economy in the first decade of reform were private farming, township and village enterprises, private business in cities, and the Special Economic Zones. None of them was initiated from Beijing. They were marginal players operating outside the boundary of socialism. For these marginal forces, the Chinese government was happy to leave them alone as long as they did not threaten the state sector or challenge the Party’s political power. This created a room for what we called the “marginal revolutions” that brought entrepreneurship and market forces back to China during the first decade of reform.

One such marginal revolution is private farming. Private farming was certainly not new in China. Before 1949, it had existed for millenia. In the early 1950s, Mao tried ruthlessly to collectivize farming. Some peasants believed in Mao and hoped collectivization would offer them a way out of poverty. After 20 years of collective farming and 40 million famine deaths, they knew better. Many went back to private farming after Mao died, even though Beijing was still trying to beef up the commune system. In September 1980 Beijing was forced to allow private farming in areas where “the people had lost their confidence in the collective.” But once the floodgates of private farming were opened, it could no longer be controlled. By early 1982 it became a national policy. Chinese agriculture was decollectivized. Later in the official account of reform, Beijing would credit itself for launching agricultural reform. But the reform enacted by Beijing merely raised the purchasing prices of grain and increased grain import; private farming, which really transformed Chinese agriculture and freed Chinese peasants, did not come from Beijing.

Mao Zedong’s collectivization of Chinese agriculture cost tens of millions of lives, and was probably the largest mass murder in all of world history. In a society where the vast majority of people were still peasants, the re-privatization of agriculture in the late 1970s and early 1980s was a huge step forward, possibly doing more to generate economic progress than any of the other reforms adopted by the Chinese government during that period.

The Chinese government’s respect for property rights is far from ideal, even today. But it is a major improvement relative to the bad old days of Mao.

The Boston Herald reports that controversial US Attorney Carmen Ortiz may be planning to appeal her trial court defeat in United States v. 434 Main Street, Tewksbury, the highly abusive asset forfeiture case I blogged about on Friday:

U.S. Attorney Carmen Ortiz said her office is weighing an appeal against a Tewksbury motel owner who criticized her for prosecutorial bullying last week after he won his battle in the feds’ three-year bid to seize his business, citing drug busts on the property.

“This case was strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades,” Ortiz said in a statement. “We are weighing our options with respect to appeal.”

Russ Caswell, owner of Motel Caswell, told the Herald he thought the case was “bullying by the government” and felt vindicated when a judge sided with him after his court victory last week.

“It’s like they’ve got nothing better to do,” Caswell said after he heard prosecutors are considering an appeal.

To some extent, I actually hope Ortiz does appeal. Given the extreme facts of the case (which I discussed here and here), it’s likely that the First Circuit Court of Appeals will reach the same conclusion as the trial court did. And unlike a district court decision, a court of appeals decision is binding precedent that lower courts in that region of the country must follow. But I also feel for the property owners here, who have already endured a three-year legal battle over an asset forfeiture action that should never have gotten started in the first place. Even with excellent pro bono legal representation by the Institute for Justice, they have likely gone through a painful ordeal that should not be extended any longer.

Ortiz has already achieved notoriety as the prosecutor in the controversial federal case against the late internet activist Aaron Swartz. I’m not nearly expert enough in internet law to have a strong opinion about her conduct in that instance. But I do know enough to say that prolonging this asset forfeiture battle is unlikely to improve her reputation.

UPDATE: I should have noted in the original post that the Solicitor General has the ultimate authority to decide whether to appeal cases that the federal government loses in district court. So the decision will not be up to Ortiz alone. However, the US attorney in charge of the case generally has substantial input into the decision.

A federal district court in Massachusetts has ruled in favor of the property owners in United States v. 434 Main Street, Tewksbury, an important asset forfeiture case. This is the case where the federal government sought the forfeiture of a motel on the grounds that a few of the motel’s customers had bought or sold illegal drugs on the premises – even though there was no evidence that the owners knew about the sales or facilitated them in any way. I previously discussed the case in this post, and it was also the focus of a Washington Post column by George Will.

Magistrate Judge Judith Dein’s opinion emphasizes the unusually extreme facts of this case as a basis for ruling that the motel was not eligible for forfeiture:

After reviewing the scores of cases cited by the parties, I find this case to be notable in several critical respects, including (1) the Government has identified only a limited number of isolated qualifying drug-related incidents spread out over the course of more than a decade, none of which involve the Motel owner or employees; and (2) the witnesses unanimously confirmed that no efforts were undertaken to work with the Motel owner to try and reduce drug crimes at the Property prior to the institution of the forfeiture action, nor was any warning given as to the possibility of forfeiture prior to suit being filed. As a result, the instant case is easily distinguishable from other cases where the “draconian” result of forfeiture was found to be appropriate.

The decision is based on statutory grounds and does not address the constitutional issues raised by takings targeting innocent property owners. Indeed, Judge Dein reiterates the longstanding, but in my view dubious, doctrine that “it is not necessary that the forfeited property be owned by a culpable person.”

Although the case is a significant victory for property owners, it also highlights the difficult of combating asset forfeiture abuse. The motel owners won only after extensive litigation. And even then, they might not have succeeded but for the efforts of the Institute for Justice, the prominent libertarian public interest law firm specializing in property rights issues that represented them pro bono, and helped attract national attention to the case. And the case may not be over yet, since federal prosecutors could decide to appeal. Most owners of property targeted for asset forfeiture do not have the resources for a prolonged legal battle. Asset forfeiture abuse remains a serious problem in many states. The struggle over this issue will continue.

As the Boston Business Journal points out, the case is also notable as “a high-profile loss for U.S. Attorney Carmen Ortiz, whose office has been besieged by criticism in recent weeks over her handling of the prosecution of Internet activist Aaron Swartz.” It will be interesting to see whether Ortiz decides to appeal this decision to the US Court of Appeals for the First Circuit.

CONFLICT OF INTEREST WATCH: I have worked with the Institute for Justice on several other property rights cases, but had no involvement in this one.

UPDATE: I should emphasize that, whatever one thinks of Carmen Ortiz, the problem of asset forfeiture abuse is not limited to this one controversial prosecutor. The practice of targeting innocent property owners and then making it difficult or impossible for them to challenge the seizure of their assets is common in many states. The real tragedy here is that Ortiz’s actions were probably only modestly more egregious than what has become standard practice in many jurisdictions.

John Ross of Reason has a nice article summarizing the problem of asset forfeiture abuse, as exemplified by dubious practices in the nation’s capital:

Jerrie Brathwaite was not in her car when Washington, D.C. police seized it in January 2012. She had lent her 2000 Nissan Maxima to a friend, and that friend was pulled over, searched, and found to be in possession of drugs. A year later, Braithwaite—who has never been charged with a crime—still doesn’t have her car back, and no one from the Metropolitan Police Department (MPD) will return her calls.

Brathwaite, 33, is knee-deep in the murky world of civil asset forfeiture, where confiscated cars, cash, and other property disappear into police coffers, and where legal recourse for owners is confusing, slow, and expensive. Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt....

Brathwaite’s situation—and the MPD’s behavior—are not uncommon. Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit.

I previously wrote about this problem here, here, and here. In 2009, the Supreme Court heard a case addressing the question of whether forfeiture policies that give owners little or no opportunity to challenge the seizure of their property violates the Due Process Clause of the Fourteenth Amendment, which bans states from depriving people of “life, liberty, or property, without due process of law.” That case was dismissed on procedural grounds. Hopefully, the justices will revisit the issue in the future. As a lower court judge, Justice Sonia Sotomayor wrote an important opinion striking down a particularly egregious asset forfeiture regime on due process grounds. I hope the Supreme Court ultimately adopts a similar approach.

UPDATE: I have made minor changes to this post to eliminate some awkward wording.

SCOTUSBlog’s Lyle Denniston reports that oral argument did not appear to go very well for the landowners in Koontz v. St. Johns River Management Authority.

Something really big, and potentially decisive, happened to a major new property rights case between the time the Supreme Court took it on, and Tuesday’s argument by lawyers before the Court. The very idea that an unconstitutional “taking” had occurred to an owner of a small plot of ground in Florida seemed near to vanishing, propelled toward oblivion by a spreading fear on the bench that maybe the entire regulatory apparatus of government might be at risk. Credit lawyers for a state agency and the federal government for deepening this anxiety. . . .

The owner’s claim that there had been a “taking” had been strenuously assailed by Justice Antonin Scalia, whose vote the landowner almost certainly had to have. That was probably the most menacing development for Koontz. But the worry that seemed to spread across the bench, that a victory for Koontz might well pull the government’s public works projects into constant constitutional court battles, spelled trouble, too.

Denniston is almost certainly correct that if the landowners have lost Justice Scalia, they won’t win the case. Here’s another report from Lawrence Hurley of Greenwire.

For more on the Koontz case, see here.