The philosophy behind "quick take" condemnations, a particularly pernicious type of taking discussed in my last post, is well summarized in this classic dialogue from Buffy the Vampire Slayer. Faith, an unscrupulous fellow slayer, tries to persuade Buffy to adopt her amoral philosophy of life:
BUFFY: Okay, we got ten, maybe twelve bad guys and one big demon in desperate need of a Stairmaster.
FAITH: I say we take 'em all, hard and fast and now.
BUFFY: We need a little more firepower than none. Maybe we should go back to the library [where the slayers' weapons are stored].
FAITH: ....(looks around) I just... wish we had . . .(sees Meyer's Sport and Tackle shop) Ah. That is too good.
They break in. Faith finds the Archery counter.
FAITH: Ah. Score.
BUFFY: Think they're insured?
FAITH: Strangely, not my priority. When are ya gonna get this, B? Life for a Slayer is very simple: want... take... have.
BUFFY: Want... take... have. I'm gettin' it.
Because of a seemingly pressing immediate need, Buffy and Faith take the property of others without going through the usual procedures and without getting the consent of the owner. The rationale for "quick take" condemnations is exactly the same. Yes, unlike Buffy and Faith, governments that use quick take pay compensation; but that compensation is generally well below the true value of the property to the owner, and the latter still ends up losing his land, and often loses the structures built on the land even if it turns out that the condemnation was illegal.
The two slayers eventually learned the error of their ways. Not so with most of the state and local governments that use quick take.
UPDATE: Later on in the same episode, Faith argues that vampire slayers have the right to take things they need without paying for them because of all the benefits they provide to society by protecting the world from vampires and demons. This argument is very similar to Justice Brandeis' dissenting opinion in the famous takings case of Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), where he claimed that the government had the constitutional right to engage in uncompensated regulatory takings in part because it provides property owners with "the advantage of living and doing business in a civilized society."
Perhaps we Property professors should teach takings law by having the class watch BTVS episodes:)!
UPDATE #2: Somewhat surprisingly, several commenters have argued that Buffy and Faith wre actually justified in trying to steal the weapons. Maybe they would have been in if they were in imminent danger of being attacked by the vampires. In fact, however, it was the slayers who were planning to attack the vampires (who didn't know that B and F were there), not vice versa. Private citizens - and even police - have no legal or moral right to steal weapons in order to catch criminals unless they really are in immediate danger from them. A bounty hunter or private detective can't steal your gun and then claim that he was justified because it helped him track down and neutralize a fugitive criminal. Even if there were an immediate danger, the "necessity" defense would only allow the slayers to use the weapons to defend themselves in that particular encounter, not keep them permanently.
Finally, I think it's pretty clear that Faith's "Want, Take, Have" philosophy is not limited to the facts of this particular case. It applies to any situation where the slayers need something quickly - or even just think they do. It was that general principle - which is remarkably reminiscent of the way quick take condemnations are used in Baltimore and elsewhere - that I meant to criticize.
Related Posts (on one page):
- Errors in the Baltimore Sun's Coverage of the Maryland "Quick Take" Case:
- "Want, Take, Have" - Buffy the Vampire Slayer and "Quick Take" Condemnations:
- Maryland Supreme Court limits "Quick Take" Condemnations:
However, if they took firearms to save themselves, they'd be in trouble. The Brady Bill doesn't, as far as I know, have any exceptions for necessity.
Obviously, this is not on all fours with the state and local governments that confiscate property. Buffy and Faith are pursued by demons--the Town Council wants a Wal-Mart. Not quite the same thing.
I think this is taking the analogy a little too seriously. In any event, they were not in imminent danger of death, because (if I recall correctly) they were planning to attack the vampires (who had not yet spotted them), not vice versa. Thus, Buffy's remark that they could go back to the library and get their own weapons.
Though I suppose that any excuse will do when you have the law and the guns on your side.
I don't see why this is an argument against quick takings in particular, instead of an argument that all takings should pay owners their subjective individual value rather than fair market value in general, regardless of the purpose of the taking. (Since precise calculations of subjective individual value are not possible, in the absence of clear and convincing evidence of a higher subjective individual value, some rule of thumb that pays owners more than fair market value for residential homes, plus relocation costs might make sense. For commercial property, fair market value is probably appropriate.)
If they were adequately compensated for their subjective individual value of land and building plus relocation costs, they could buy new land and buildings, plus have something left over.
I think a better solution to the "problem" of quick takings is not to prevent them -- because delay is in fact a form of harm -- if it turns out that the government wins most of these cases, their should be a quick way for it to assert itself. A better remedy would be to provide a lawyer to any plaintiff who brings a claim with a good probability of success against a quick taking, regardless of success or failure of that suit. Since quick takings would be more expensive than other takings, the government might hesitate to use them in cases where plaintiffs would actually have a good probability of resisting. That strikes me as a much better solution than allowing holdouts to delay productive projects when they have no chance of success.
Quick takings are valuable and have the potential to make everyone better off. The person with the legitimate claim who does not have to front legal fees benefits. The government and society benefit as well, since valuable projects are not delayed by holdouts trying to extort more than their individual subjective value.
By the way, the quote by Justice Brandeis is indicative of the state of takings law historically. Individual states used to, in fact, take land without any compensation whatsoever. Thus, the idea that the founders wanted to forbid the Federal government from economic takings is absurd. If they thought government takings was such a big problem, wouldn't they have done something about the states?
The constitutional requirement is just compensation. I think you might have a decent argument that compensation is not in fact just (since it doesn't compensate for individual subjective value). I don't think you have an argument against quick takings, economic takings, or any other form of takings that a legislature or other elected body determines to be a "public use," absent actual evidence of bad faith and desire for personal private enrichment.
One last thing. I think your Buffy example is totally ridiculous. You should address the strongest argument of those who might have a different perspective, not the weakest argument. The Buffy characterization is the weakest characterization. A stronger characterization is that there is a concern from owners using litigation delays in bad faith to hold out for prices that are in excess of individual subjective value.
Oh yes, it was all about a "buck for the local government." A legitimate concern aimed at increasing employment opportunities for local residents couldn't have had anything to do with it.
If your argument is right, why not address the strongest argument in favor of Kelo, instead of inventing strawmen?
Of course if it was used to create government jobs or government contracts, which are actually a drag on the economy, it would be transparent as more property theft and redistribution rather than "economic development". And then if the taking was targetted at certain groups disliked by the bureaucrats in question......
If the local residents were so keen on seeking employent opportunities at the cost of living where they did, dont you think they would have sold their houses and moved closer to an existing pfizer factory? Your argument that this was a benefit to the people of New London rather than the government of New London is unconvincing.
I don't see why this is an argument against quick takings in particular, instead of an argument that all takings should pay owners their subjective individual value rather than fair market value in general, regardless of the purpose of the taking.
It is indeed a problem with other takings too. But it's worse with "quick take" because that procedure makes it difficult or impossible for the owner to contest the validity of the taking and potentially block it entirely (thereby obviating the difficulties of estimating compensation).
By the way, the quote by Justice Brandeis is indicative of the state of takings law historically. Individual states used to, in fact, take land without any compensation whatsoever.
Simply not true. They would sometimes regulate without compensation, but at least after the Founding, there were few if any cases upholding the right of states to condemn property without compensation.
Thus, the idea that the founders wanted to forbid the Federal government from economic takings is absurd. If they thought government takings was such a big problem, wouldn't they have done something about the states?
The federal government was not given the power to engage in "economic takings," so there was no need to constrain that nonexistent power as of 1787.
They did something about the states and property rights in 1868, when they incorporated the Bill Rights against the States, including the Takings Clause (at a time when the words "public use" were long understood by most legal commentators to exclude private-to-private condemnations). See for example Akhil Amar's book, The Bill of Rights (1998), which provides evidence of the 14th Amendment's framers' specific desire to incorproate the Takings Clause against the states. Back in 1787, many state abuses of many rights (including free speech and freedom of religion) were left unconstrained in order to secure the states' acquiescence to the Constitution.
I don't think you have an argument against quick takings, economic takings, or any other form of takings that a legislature or other elected body determines to be a "public use," absent actual evidence of bad faith and desire for personal private enrichment.
I don't see why not. Why should the motive ("bad faith") be the key criterion? It isn't for most other parts of the Bill of Rights. For a more extended argument against using motive analysis to determine "public use," see my forthcoming article here.
One last thing. I think your Buffy example is totally ridiculous. You should address the strongest argument of those who might have a different perspective, not the weakest argument.
The Buffy example is a joke intended to focus on one aspect of the issue, not a sustained, comprehensive argument. I did make a more detailed argument against "quick take" condemnations in my last post!
If it were so clear that the government were going to win, owners would have every incentive to settle without going to trial. There would be no point to paying the cost of litigating a lost cause. Quick take is pernicious precisely because the government is most likely to use it in cases where the legal rationale for the taking is at least somewhat dubious.
There are many ways of dealing with this potential problem without resorting to "quick take." If the owner has no real argument, the Court can simply grant summary judgment in favor of the government. Moreover, a futile legal struggle is costly to the owner too, so his threat to engage in "litigation delays" is unlikely to be credible, and can therefore usually be safely ignored by the government - unless, of course, the owner has a real case that the taking is invalid.
Assuming a lawyer was competent AND ethical, and informs their clients of the low probability of success, then MAYBE the person will be rational. But people get emotional when they get pushed around and their property is being threatened; it's very likely a sizable minority of persons subject to a "quick take" taking react irrationally.
1) Require the use of the same appraisals for property tax as for takings (perhaps is already done). Perhaps people will try to keep their property valuations artificially low (rather than challenging them to raise them) but at least they are the ones choosing to take the trade off.
Additionally institute blind testing of these market value appraisals possibly with automatic penalties if the appraisals average below market price.
2) Require any takings to be compensated at something like 150% of the appraised value.
3) Substantially raise that percent for rushed or immediate takings.
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Basically, I think with the appropriate will we could enact laws that ensure about half the people will be grateful to be the subject of a taking. While this may not perfectly address the liberty clauses involved in takings it would ensure that the government would only use them when truly necessary as negotiated purchases would usually work better.
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As far as the Buffy thing I think individual takings are a completely different matter than government takings.
At least in this case I think there is a compelling argument they did the morally correct thing. After all vampires kill people and any time it may have taken to fetch their weapons incurred a substantial risk of further innocent death.
Wouldn't the happy half then sell voluntarily beforehand at or below the taking price? The ONLY people for whom the gov't "needs" the taking power are those who are quite UNhappy to be its targets.
I don't doubt that we could do this. Indeed, if we offered high enough compensation, we could probably get nearly all the people in this category. The problem is that if people are actually "happy" to have their property condemned (because they get more money than the land is worth to them), then they will start lobbying the government to take their property!
As a result, we would end up with numerous inefficient takings that squander taxpayer money, not to mention a massive wastage of resources on lobbying and other rent-seeking activities.
Full! Copper! Repipe!!! No! More! Full! Copper! Repipe!
But then, this Faith story still takes place in the good part of the show (At the end of the show, in the bad part, Faith gets sprung from jail to help--but never goes back once the danger is over.)
A main conceit of the show (at least at this point) is that the general public doesn't know, and can't be told, about vampires. If you accept this rather artificial premise, then they're in a situation where the police essentially don't exist. Either they take the weapons and kill vampires, or nobody kills them at all.
Hmm, sounds kinda risky to me - the overwhelming contrast between the highly entertaining Buffy episodes versus the excruciatingly boring everything else in property law would probably cause serious psychological problems among the students.
And if you include that episode where Buffy and Faith are dancing together at The Bronze, you can change "probably" to "most certainly."
However, Buffy and Faith were, as always, choosing the wrong weapons and tactics for an underground chamber full of vampires (a scenario that occurred in nearly every episode). What they should have used is molotov cocktails. (Fill a glass bottle with gasoline, stuff a rag in the opening, light the rag just before throwing.) Vampires burn quite well, so splattering burning gasoline around the room will take out all of them at once. It might not have killed the blubber-demon, but without his vampire bodyguards he would have been a much easier target.
The vampires also ignore the obvious best weapons and tactics. They're immune to bullets, but Slayers aren't. Nor would vampires be inclined to obey registration laws, etc. Their supply of guns might be limited by their tendency to eat illicit gun dealers instead of paying them, but they could also conduct their own smash and grab raids on gunshops. And if in spite of all these possibilities, a vampire is not carrying weapons that give him a good chance against a Slayer, he should run away instead of taking the fight to the Slayer - and better yet, stay out of the Slayer's town.
Also:
1. Faith became a Slayer after Kendra died, who became a Slayer when Buffy died (temporarily); where was the new Slayer after Buffy died the second time?
2. Why was Warren the only person who thought to shoot Buffy with a gun, rather than hitting her with a stick?
3. For the record, I look just like the lawyer in Angel that Faith beat up in (I think) season 2.
Per a Joss Whedon interview, after Buffy's first death, the slayer line ran through Kendra (and then Faith). The characters on the show don't seem to have realized that, nor is there any internal reason why they should have.
I'm not sure the episode from Bad Girls offers all that much of an analogy here. I agree that the "taking" in that case was wrong and we were supposed to see it as wrong. However, there were plenty of times in the show when Buffy took/destroyed private property: The Bronze (too many occasions to count; how did that club generate enough profit to pay for the clean up each week?); various warehouses (When She Was Bad, Into the Woods, Bad Girls itself); and crypts. Of course, she was even harder on public property (Graduation Day II). And then there's Chosen....
I'm not sure what this means. The federal government surely had takings power in 1787. What constitues an "economic taking" may be somewhat vague, but there could have been some (I have no idea if there were).
In addition to DMN's example, Spike was prepared to use a gun in Fool For Love. Jonathan kinda sorta threatened her in Earshot. The homeowner pointed a gun at her in Touched (there's a scene for David Kopel to hate), as did The Initiative soldiers on several occasions. The Taraka assassin shot at her in What's My Line 2, as did the police officer in Becoming 2. There may be others examples as well.
On a more intellectual note,on you tube,write Buffy /Faith and one can select the video,"She's got a Girl Friend Now" about them
Don't tell my wife.
- mentally ill people who thought a group of normal people were "vampires"
- amateur, crackpot eugenicists that thought a group of normal people were "dangerous" to society
- delusional feminists or religious fanatics who believed that somehow even consensual sex between adults was a crime by men
Should those of us who are bit older than this be embarrassed now?
Then there was Adam in Primeval... Ok, I'll stop.
OK, you got me. However, I think my basic point stands; I always thought it was funny how many vampires thought that the thing to do when confronted with the Slayer (the person most qualified to kill them) was to attack her with their bare hands. Then there were all those times that Buffy took one shot with her crossbow, then tossed it aside for hand-to-hand combat.
I'm not sure what this means. The federal government surely had takings power in 1787. What constitues an "economic taking" may be somewhat vague, but there could have been some (I have no idea if there were).
It means simply that the federal government was not understood to have the power to engage in private-to-private takings such as those in Kelo and other similar cases. And indeed the federal government did not in fact engage in such takings in the 18th and 19th century and rarely does so even today.
Have you ever tried to re-load a crossbow?
Thanks for clarifying.
Since BTVS ended very abruptly with Buffy, Faith and pals escaping the destruction of Sunnydale after defeating an army of über-vampires and sealing the Hellmouth, we really don’t what became of Faith afterward
Re: mentally ill people who thought a group of normal people were "vampires"
You’re too late there. Season had an episode where Buffy was poisoned with some sort of hallucinogenic demon blood and kept “waking up” in a mental hospital where she’s an ordinary but very psychotic girl being treated for delusions about vampires; her mother is still alive (Joyce’s death in “The Body” was the most realistic, and wrenching, TV depiction of dealing with the sudden death of a loved one I have ever seen), in fact her parents were still married. The show never revisited the theme and we were simply left to wonder which reality was the real one.
I seem to recall an episode where Buffy runs into a newly undead guy she used to know back in high school and they spend much of the episode just sitting around the graveyard chatting. I can't remember the exact dialogue but I seem to recall that vampires fight hand to hand (rather than with guns) because they instinctively know how to fight that way, nor do they have any particular fear of dying, which is why they often don't run, even when they're 1 on 1 against Buffy and they presumably know the odds are very much against them. If you're a vampire in the Buffy universe, you'd never actually need a gun except in the unlikely event you ran into the Slayer.
The show is one of the most anti-gun I've seen--aside from that bank guard scene, the non-use of guns for self-defense is so blatant it's the elephant in the room, not to mention that the most prominent use of a gun in the show is to kill Willow's girlfriend.
As for monsters using bad tactics, how about the fact that no vampires wear a plate over their heart, or the fact that the First Evil, which could disguise itself as Buffy, should have just walked into a police station and confessed to a couple of murders, then led the police to some bodies. If it had done that, it would have won.
Conversations With Dead People.
Only until the police went to cuff or search her. They might have noticed a small problem in that case. (For non-viewers, the First Evil was incorporeal.)
Angel season 5 was after the end of Buffy. If Faith had gone back to prison, it would have been shown there, but I can't remember if it was. I think she and several others from Buffy did make a brief appearance in the episode about a schizophrenic Slayer.
However, she did use an RPG of some sort - maybe it was a shoulder fired antiarcraft missile - to explosively disassemble an extremely powerful demon called the Judge.
However, she did use an RPG of some sort - maybe it was a shoulder fired antiarcraft missile - to explosively disassemble an extremely powerful demon called the Judge.
So go to the police, confess to murder, and then run away when they try to handcuff you. It'd still work, especially if the police got led to the house where the real Buffy is.
I think the plot would get increasingly strained if they wrote a scene in which someone entered a police station and gave a full confession with touching anyone or any thing. S7 got enough criticism as it was (I happen to like it).