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What the Didden Case Tells Us About Sotomayor's Attitude Towards Property Rights:

In today's New York Times, leading legal reporter Adam Liptak has an informative article about Sonia Sotomayor's dubious property rights decision in Didden v. Village of Port Chester, which I previously criticized here and here. In Didden, a court of appeals panel headed by Sotomayor upheld the condemnation of two businessmen's property because they refused a politically connected developer's demand to either pay him $800,000 or allow him a 50% stake in their business.

Liptak does a good job of summarizing the case and its importance, though some legal details have inevitably been omitted. I was slightly surprised to see the article draw an apparent contrast between my view of Didden's significance and that of Richard Epstein, the leading University of Chicago and NYU lawprof with whom I coauthored an amicus brief urging the Supreme Court to reverse Sotomayor's decision in the case:

"This is the worst federal court takings decision since Kelo," said Ilya Somin, who teaches property law at George Mason University and helped write the brief. "It's very extreme, and it is significant as a window into Judge Sotomayor's attitudes toward private property."

But another author of the brief, Richard A. Epstein, said the decision in Mr. Didden's case was a rare misfire that provided no larger insights into Judge Sotomayor's thinking.

"It's a disappointment and it's wrong and it's ill thought out," Professor Epstein, a law professor at the University of Chicago and New York University, said of the ruling. "But it's not one of six. It's one of two." (The other poorly handled decision, he said, was Ricci v. DeStefano, which rejected employment discrimination claims from white firefighters in New Haven.)

If this is indeed Epstein's view, it is somewhat in tension with his previous statement that "American business should shudder in its boots if Judge Sotomayor takes the attitude [reflected in her Didden opinion] to the Supreme Court." As he explained in the earlier op ed and I discussed here, Didden is striking because it goes even further than Kelo v. City of New London in allowing private property to be condemned for the purpose of enriching other private parties, without any proof that some sort of public benefit will be achieved. Epstein also pointed out that Sotomayor dismissed the issue with a cursory one sentence statement, suggesting that she didn't even think it was a close call.

Perhaps Epstein merely meant to say that Sotomayor has made only two egregiously bad decisions in important cases (Didden and Ricci v. DeStefano, effectively criticized in this series of posts by co-conspirator Jonathan Adler), and that these two gross errors don't reflect her overall record. I certainly agree that Sotomayor's performance in most cases was far better than in these two, and that she is generally very competent. Nonetheless, I think these two cases are telling precisely because they are unusual. As Barack Obama famously pointed out, "while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult." Didden and Ricci are part of Obama's 5 percent - major cases on important disputed constitutional issues. As Obama emphasizes, a judge's performance in these types of cases is especially critical in determining her fitness for the Supreme Court. Sotomayor simply hasn't handled very many important constitutional cases, so we must carefully consider the few that she has.

Indeed, Didden is probably even more telling than the cases Obama had in mind it was considerably easier than most cases in the 5 percent. It was precisely the kind of "pretextual" taking that even the Kelo majority considered to be unconstitutional.The "truly difficult" challenge here was justifying in favor of the government without even allowing the property owners to present their evidence of a pretextual taking before a jury; it would have been relatively easy to defend a decision going the other way. It is revealing that Sotomayor not only got the outcome wrong, but seemed to think it wasn't even close. If Sotomayor didn't believe that there was a serious property rights issue even in this extreme case, it is unlikely that she would protect property rights under the Takings Clause in any other situations likely to come before the Supreme Court.

UPDATE: Although less important, in my view, than Didden and Ricci, it's also worth noting that Sotomayor made another dubious constitutional ruling in Doninger v. Niehof, an important free speech case where she upheld a public school's decision to punish a student for an internet blog post that she wrote on her own time outside of school grounds. I briefly discussed Doninger in the first part of my LA Times debate with Erwin Chemerinsky. Liberal legal scholars Jonathan Turley and Paul Levinson have been even more critical of Sotomayor's Doninger opinion than I was.

Since Sotomayor has made no more than a handful of important constitutional rulings in her judicial career, the fact that she got three of them badly wrong must be given great weight in assessing her nomination.

UPDATE #2: While I don't want to comment extensively on Ricci v. DeStefano, I should perhaps point out that my disagreement with that decision does not rest on the view that affirmative action is categorically unconstitutional. To the contrary, I think it may well be both morally and legally defensible when used to provide genuine compensation for past racial discrimination. Ricci, however, did not involve any such effort at compensatory justice. For reasons elaborated in Jonathan Adler's posts, Sotomayor's ruling in the case raises many troubling questions even for people who believe, as I do, that the use of racial classifications for affirmative action is sometimes permissible.

Gabriel McCall (mail):
What would be the impact of getting rid of eminent domain altogether? Would the harms of forcing the government to negotiate mutually-agreeable free-market transactions or to redesign projects when blocked by the entirely intransigent, be greater than the harms of an eminent domain power which is abusable by special interests, connected businessmen, and a Park Service which can't figure out how to build a memorial to Flight 93 on less than 2200 acres of land? I'm less and less convinced.
6.15.2009 9:24pm
Steve:
"Very extreme." What a riot. Yeah, tough break for the plaintiff, who I gather drew a panel consisting of the only three judges on the planet willing to join in such a "very extreme" decision.
6.15.2009 9:26pm
Ilya Somin:
tough break for the plaintiff, who I gather drew a panel consisting of the only three judges on the planet willing to join in such a "very extreme" decision.

The number of judges willing to support a decision has no bearing on its correctness. Moreover, Sotomayor was the senior judge on the panel, and by standard Second Circuit practice, the one who drafted the opinion in a case like this one.
6.15.2009 9:33pm
Steve:
The number of judges willing to support a decision has no bearing on its correctness.

If your quote had said "very incorrect" as opposed to "very extreme," this response might be topical, but that's not what you said. "Very extreme" is a laughable description.
6.15.2009 9:35pm
Repeal 16-17 (mail):
Hey Steve, pretend Ilya Somin said "very incorrect" and then comment on what Ilya Somin said.
6.15.2009 9:40pm
Ilya Somin:
If your quote had said "very incorrect" as opposed to "very extreme," this response might be topical, but that's not what you said. "Very extreme" is a laughable description.

It's "very extreme" relative to 1) the correct interpretation of the Constitution, and 2) the principles adopted by even the Supreme Court majority in Kelo (which otherwise gave local governments broad scope to condemn property). Neither of these has anything to do with the number of judges on the panel. Moreover, junior judges on an unpublished decision like this often go along with what the senior judge writes, even if they have some reservations. In this case, it's possible that they agree with her on her procedural ruling, had reservations on the substantive one, but still chose not to go through the trouble of fighting it out with her (since the unpublished nature of the decision prevented it form becoming binding circuit precedent).
6.15.2009 9:41pm
Steve:
It's "very extreme" relative to 1) the correct interpretation of the Constitution, and 2) the principles adopted by even the Supreme Court majority in Kelo (which otherwise gave local governments broad scope to condemn property).

You may be super-convinced that your interpretation of the Constitution is the "correct" one, but that doesn't mean anyone who disagrees is "very extreme." Previously I thought only liberals played this game of pretending that contrary views are "extreme" regardless of how much support they actually have.

Moreover, junior judges on an unpublished decision like this often go along with what the senior judge writes, even if they have some reservations.

I think it's plausible that two members of a panel would go along with the senior judge's decision even though they saw something in it to quibble with. I don't think it's plausible that they would simply shrug and go along with a "very extreme" statement of the law, though.

I respect the strong stance taken by you and Prof. Epstein on this issue, and you may well be correct on the underlying matter, but when you take the fight into the court of public opinion you both demonstrate an embarrassing tendency to overstate the case. How else to describe Prof. Epstein's silly claim that the Supreme Court denied cert in this case because they were afraid of another Kelo backlash?
6.15.2009 10:01pm
Oren:

Didden is striking because it goes even further than Kelo v. City of New London in allowing private property to be condemned for the purpose of enriching other private parties, without any proof that some sort of public benefit will be achieved.

How did you get to that conclusion? I've read both decisions and I cannot see how the court, even if it decided a priori to rule for Didden, could square such a decision with Kelo. Where in Kelo (as opposed to the book of Ilya's personal political preferences) do you see contemplated a searching analysis for proof of a public benefit?


The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.


That's not to say Kelo was decided correctly, of course, but lower courts do not have the luxury of second guessing superior ones.
6.15.2009 10:05pm
Oren:

It's "very extreme" relative to 1) the correct interpretation of the Constitution

Lower courts do not rule based on The Correct Interpretation, they rule based on the one adopted by the courts superior to them.
6.15.2009 10:09pm
ruuffles (mail) (www):

Moreover, junior judges on an unpublished decision like this often go along with what the senior judge writes, even if they have some reservations.

Ah hahaha. thats a good one. You forgot one fact: the other two judges were George W Bush appointees.

Yeah thats right, just like the 2nd am. incorporation cases, you have two conservatives backing Sotomayor. Give it a rest.
6.15.2009 10:09pm
Nunzio:
ruuffles,

Posner and Easterbrook aren't conservatives. Posner publicly wrote that he thinks gun control is a good idea so he would interpret the Constitution accordingly. By his method, he said Heller was wrongly decided. That method is called making it up to suit your preferences. It is Breyer's method as well.
6.15.2009 10:25pm
Allan Walstad (mail):

...you have two conservatives backing Sotomayor.

Conservatives, liberals, tweedledum, tweedledee. The question is who stands up for individual liberty and the seriousness of limits on government power in the Bill of Rights. Kelo made a lot of folks take notice of how extremely interventionist and capricious government power has been allowed to grow. Perhaps the Didden case, as discussed by Somin and others in the context of the Sotomayor nomination, will raise consciousness further.
6.15.2009 10:29pm
Tatil:
During the previous threads on this topic, there were many posts that stated that the case was ruled based on statute of limitations, that the plaintiff did not file his case before the deadline, not based on its merits otherwise. Prof. Somin, you might have a very good argument about whether that makes any difference to your position that this was an "extreme" decision, but I don't think you have bothered to comment on that aspect at all. I really enjoy most of your posts and I know it is sometimes fruitless or worthless to answer every crack pot comment, but your silence on this issue unfortunately is leading me to believe that you are conveniently omitting details or facts that do not support your narrative. I hope you are above that, as it would make me doubt your other articles as well.
6.15.2009 10:31pm
AF:
The panel, consisting of Sotomayor and two Bush appointees, was incorrect that the complaint failed to state a claim under Kelo. However, it was a harmless error as the claim was time barred.
6.15.2009 10:43pm
AF:
Moreover, junior judges on an unpublished decision like this often go along with what the senior judge writes, even if they have some reservations. In this case, it's possible that they agree with her on her procedural ruling, had reservations on the substantive one, but still chose not to go through the trouble of fighting it out with her (since the unpublished nature of the decision prevented it form becoming binding circuit precedent).

Professor Somin, your speculation about the opinion's authorship is baseless. While it is true that the senior active judge on a Second Circuit panel often (though not always) drafts the summary order, it is not true that the other judges go along with what the senior judge writes when they disagree with it. Moreover, the decision whether to publish is typically made by consensus. The bottom line is that it is a per curiam decision and any attempt to attribute authorship to Sotomayor is unfounded.
6.15.2009 10:53pm
Raoul (mail):
I get the impression that the author thought Kelo was wrongly decided. Apellate judges have no such luxury.
6.15.2009 11:03pm
George Smith:
I am actually, in real work-a-day life, a real estate attorney in a firm with a sizeable development practice. Our consensus is that (i) Kelo was a terrible decision, (ii) Didden reeks to high heaven, and (iii) both are great for business.
6.15.2009 11:06pm
Commentor (mail):
Question: If a condemning authority enters into negotiations with the landowner prior to condemning the property, isn't that always subject to being labeled "extortion?"
6.15.2009 11:09pm
Tugh (mail):
It is laughable to read that Judge Sotomayor decision in Didden was "extreme." Anyone can play this silly game. Just because you, Professor Somin, seem to hold an extreme view on property rights, it doesn't make a decision that correctly followed the precedent "extreme."

It was demonstrated by scores of commenters in your previous thread on Didden, that a) there was no extortion whatsoever in that case, and b) Didden's claim was precluded by the statute of limitations.

So, no, Didden doesn't fall within the 5% truly difficult cases in Obama's framework; I believe that Didden was a relatively easy case that was correctly and unanimously decided by all judges who heard the matter.
6.15.2009 11:11pm
David M. Nieporent (www):
Nobody who cares about property rights would come up with the nutty idea that the claim was time barred, given that in order to find it time barred, one had to find that the statute of limitations started running before the injury was suffered.
6.15.2009 11:25pm
Steve H (mail):

During the previous threads on this topic, there were many posts that stated that the case was ruled based on statute of limitations, that the plaintiff did not file his case before the deadline, not based on its merits otherwise. Prof. Somin, you might have a very good argument about whether that makes any difference to your position that this was an "extreme" decision, but I don't think you have bothered to comment on that aspect at all. I really enjoy most of your posts and I know it is sometimes fruitless or worthless to answer every crack pot comment, but your silence on this issue unfortunately is leading me to believe that you are conveniently omitting details or facts that do not support your narrative.


In fact, Professor Somin's postings on this case, and indeed any reference to Judge Sotomayor's "decision" in Didden, are regrettably and fundamentally and inherently dishonest.

Sotomayor issued no ruling in Didden. And there was no real ruling in Didden on the applications of the Takings Clause.

Didden involved a unanimous, unpublished, per curiam opinion upholding a dismissal under the statute of limitations. In the course of this unanimous, unpublished, per curiam opinion, the court wrote one whole sentence addressing the substance of the takings argument.
Also, I find it funny how the property rights crusaders are now, all of a sudden experts on the statute of limitations -- much wiser than all four judges who actually read the parties' briefs, researched the case law, and put their professional reputations on the line by ruling against the plaintiff.

(It is also curious that the same people arguing in favor of a strict application of the limitations statute in Ledbetter are now firmly convinced that it was wrong to strictly apply the limitations statute in Didden.)
6.15.2009 11:40pm
MarkField (mail):

Nobody who cares about property rights would come up with the nutty idea that the claim was time barred, given that in order to find it time barred, one had to find that the statute of limitations started running before the injury was suffered.


One of the judges was Lily Ledbetter.
6.15.2009 11:40pm
George Smith:
Commentor, here's how it works all the time. I want to build an upscale retail center on the land that holds your family's third generation lawn and garden and nursery business. Before I approach you, I have my MAI/associate/hooker do an appraisal that is low, but has some support for it. I make you an offer. If you're savvy, you know you've had the schnitzel right there and then, but you decline. I then go the the local redevelopment authority, with whom I spoke long before spoke to you, and ask them to find the property blighted because it is not being put to its highest and best use (my retail center), which is a blight standard in many communities. The redev authority makes you a "good faith offer" that is curiously the same as my offer. You decline and the redev authority condemns your land. The court's ruling is the end of it except for the contest over the final compensation. You might get more; probably not. The offer fron the redev authority is not really extortion, more like intimidation, and a classic modern day taking of your property for transfer to me, to build a retail center. The debate is whether this is a "public purpose" as envisioned by the Constitution. On the other hand, if I tell you that I have condemning authority behind me, but that for $X or a slice of your pie I will leave you alone, what does that seem like?
6.15.2009 11:48pm
SFH:
I'm not so sure she did get Doninger wrong. It seems to follow from Morse v. Frederick (the egregious "Bong Hits for Jesus" case). The flaw here seems to lie with the current Supreme Court, who set the precedent.
6.16.2009 12:00am
Cato The Elder (mail):
Do you notice how, whenever you don't agree with them, Professor Somin, some people constantly accuse you of dishonesty? Time and time again, whatever the case?
6.16.2009 12:17am
Arnostocles:

"American business should shudder in its boots if Judge Sotomayor takes the attitude [reflected in her Didden opinion] to the Supreme Court."


The 2nd Circuit tossed out, on forum non conveniens grounds, a $1 billion dollar lawsuit against Texaco brought by Amazonian Indians [it was very inconvenient for Texaco to litigate in this exotic place called New York].

How does that case square with the "Sotoymayor will terrorize American businesses"? Or with "Sotomayor loves Latinas and South Americans and decides all her cases based on race"?



Ricci are part of Obama's 5 percent - major cases


Ricci isn't that big of a case. It's a big cause celebre among the "white victim" set.

Suing the City of New Haven Fire Department isn't the noblest of causes. The Department's decision to toss out a new [not a tried and true] testing system for promotions isn't exactly the most egregious violation. No one was fired on the basis of race. No one was promoted on the basis of race. No one was not hired on the basis of race. No one was harassed. The City of New Haven deprived a group of white firefighters of promotions they probably deserved. Sucks for them, and I hope they get some scratch for their trouble, but this isn't anything earthshattering...
6.16.2009 12:39am
Sarcastro (www):
Neat! I may have been wrong on my exam, but I was also XTREME!

I'm also glad Cato The Elder is so against accusing people one disagrees with of dishonesty.
6.16.2009 12:45am
methodact:
I seem to recall that Henry George espoused that the source of real wealth is real property.
6.16.2009 1:02am
Cato The Elder (mail):

Ricci isn't that big of a case. It's a big cause celebre among the "white victim" set...sucks for them, and I hope they get some scratch for their trouble, but this isn't anything earthshattering...

Let's recapitulate the typical leftist perspective from a couple of data points.

Jena 6 Case: Black youths with a previous rap sheet maim a white child at an independent party, and claim justification by alleged threats from the local principal, and a supposed hung noose indicating malevolent racial tensions. Everyone is in uproar, the Atlantic is outraged, hundreds march the streets. Morons accost me for signatures at my university. That narrative, per the course, is effectively refuted through more thorough investigation and evidenced by their later thuggish behavior.

Ricci Case: Institutionalized government discrimination against white firefighters is repeatedly upheld by the Courts, so much so that it takes them over 6 years to finally have hope at justice at the mercies of the Supreme Court. Moreover, it turns out through independent investigations that the case is indicative of similarly serious problems occurring to many different individuals throughout America's urbanized core. None of this is off-putting in slightest to those who were surely fighting hand-to-hand in the streets for Black Civil Rights in the '60s.

Arnostocles, you disgust me.
6.16.2009 1:04am
Cato The Elder (mail):

In due course, my son Marcus, I shall explain what I found out in Athens about these Greeks, and demonstrate what advantage there may be in looking into their writings (while not taking them too seriously). They are a worthless and unruly tribe. Take this as a prophecy: when those folk give us their writings they will corrupt everything.

- Cato, as quoted by Pliny the Elder, Naturalis Historia 29.13–14
6.16.2009 1:20am
sss (mail):
6.16.2009 3:43am
ruuffles (mail) (www):

Do you notice how, whenever you don't agree with them, Professor Somin, some people constantly accuse you of dishonesty? Time and time again, whatever the case?

Ah but they back it up. Like I said, in this case and the 2nd amendment incorporation case, at least two conservatives sided with Sotomayor.
6.16.2009 8:13am
Arnostocles:

Arnostocles, you disgust me.


Cool. Thanks for making up "my position" on Jena 6, and then attacking me for it.

Let me know when these guys get their "Great Job Stickers" for passing a test. I said it - they were probably wronged and the Courts should give them relief. But I don't see the massive ramifications from this case on our society. What kind of legal rule will emerge that will change the landscape of discrimination law? The case will be decided narrowly.

Cases, of course, are of monumental importance when the victims are white. You think the Right would've cared so much about S. Kelo if she was an illegal Mexican immigrant instead of white?
6.16.2009 8:34am
iowan (mail):
When did the constitution get rewritten? Property taken for "public use" to "public purpose" Those words are not synonomous
6.16.2009 9:48am
Steve H (mail):

Do you notice how, whenever you don't agree with them, Professor Somin, some people constantly accuse you of dishonesty? Time and time again, whatever the case?


I assume this was directed somewhat at me.

But to me, this isn't about disagreement. I have no idea whether the unanimous Second Circuit panel, or the District Court, correctly applied the statute of limitations in Didden. I also don't really know (or care that much) whether the sentence about Kelo was a correct statement of the law.

The problem is the inherently misleading characterization.

If Prof. Somin referred to "the one-sentence of dicta in a per curiam opinion Judge Sotomayor joined," I'd have no problem with his posts. But Prof. Somin refuses to do that, instead giving the impression that Judge Sotomayor herself wrote a significant and substantive opinion on property rights. And given that it is indisputable that Judge Sotomayor did *not* write a significant and substantive opinion on property rights, Professor Somin's description is inherently misleading, and I think it is perfectly fair both to call him out and to ensure that people reading the comments realize what the court actually did in Didden.
6.16.2009 9:52am
Oren:

Nobody who cares about property rights would come up with the nutty idea that the claim was time barred, given that in order to find it time barred, one had to find that the statute of limitations started running before the injury was suffered.

Then nobody who cares about any rights can be an appellate judge, since they will have to follow all kinds of nutty but binding SCOTUS precedent.
6.16.2009 10:30am
Oren:

When did the constitution get rewritten? Property taken for "public use" to "public purpose" Those words are not synonomous.

If you read Kelo, you'd get the answer (seriously, it's right there in the opinion of the court -- just read the damned thing):

Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158—164 (1896).
6.16.2009 10:37am
David M. Nieporent (www):
Then nobody who cares about any rights can be an appellate judge, since they will have to follow all kinds of nutty but binding SCOTUS precedent.
I said "would come up with" the idea, not "would follow binding precedent."

That having been said, if there's nutty binding precedent, one might think one would write, "There's binding precedent, so I have to follow it, no matter how nutty it is. Therefore, righteousness and freedom lose."
6.16.2009 10:41am
Oren:

That having been said, if there's nutty binding precedent, one might think one would write, "There's binding precedent, so I have to follow it, no matter how nutty it is. Therefore, righteousness and freedom lose."

I thought that it was simply assumed that appellate courts followed precedent, not righteousness and freedom, in the first instance. That is to say, I had no idea anyone thought that an analysis of righteousness and freedom ever entered into it. I certainly didn't.
6.16.2009 10:49am
some guy:
Sorry folks, but Didden was extreme and was not, as so many of you have claimed, in line with Kelo. Read the facts. You could not script a more pretextual taking if you tried.

As for the statute of limitations, again, I direct you to the facts of the case. According to Sotomayor, the limitations period began running several years before the plaintiffs were injured, and in fact had completely run by the time of the injury. Of course, if the plaintiffs had filed a complaint prior to being injured, on the grounds that they might be injured at some indefinite point in the future, the case would have been dismissed for lack of injury-in-fact. It's a pretty nasty catch-22 for plaintiffs seeking to enforce rights that the future Justice does not agree with.
6.16.2009 11:02am
some guy:
Everyone claiming that Sotomayor was merely "following precedent" should re-read the majority's opinion in Kelo. You will find this interesting little bit of precedent, which was apparently overlooked by the judges signing on to Didden:

"Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit."

If anyone has an explanation as to how Didden does not fall squarely into that sentence, I would like to hear it.
6.16.2009 11:10am
Oren:

Everyone claiming that Sotomayor was merely "following precedent" should re-read the majority's opinion in Kelo. You will find this interesting little bit of precedent, which was apparently overlooked by the judges signing on to Didden:

Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.


The lower court made no such finding of pretext.
6.16.2009 11:38am
some guy:
The lower court made no such finding of pretext.

Like I said, look at the facts. One could hardly conceive of a more obvious pretext than this one. The land was seized in order to build a Walgreens (thus providing the necessary "economic development"), rather than a CVS (similar in every relevant way, except that it would not be owned by the developer who exercised eminent domain). It was seized the day after the owners refused a demand for $800k to make the developer "go away."

The lower court erred, and should have been reversed. That is the whole point of having a court of appeals, is it not? Or was it Sotomayor's duty to rubber-stamp clear error during her time on the Second Circuit?
6.16.2009 12:04pm
MarkField (mail):

That having been said, if there's nutty binding precedent, one might think one would write, "There's binding precedent, so I have to follow it, no matter how nutty it is. Therefore, righteousness and freedom lose."


Thereby, no doubt, demonstrating empathy with righteousness and freedom.
6.16.2009 1:08pm
George Smith:
Arno - yes they/I would. Private property is private property. A taking is a taking. Extortion is extortion. Don't make me no never mind who the fee owner is. If it can be done to one,it can be done to all.
6.16.2009 1:10pm
DavidN (mail):
I'm not a lawyer. I like to think I understand legal issues, in a sort of practical layman's fashion that (hopefully) cuts through all the technicalities and obscure case references you guys consider bread and butter. I think I've noticed something here that would tend to invalidate the decision completely, if I'm correct.


In Kelo - one could _empathize_ with the property owner because it was her home and there was some sentimental value.


This brief sentence points out a difference between the two cases that might work to the advantage of the plaintiffs in Didden, if they played their cards right, and I'm correct. If I understand it correctly, the Kelo decision essentially was built around the idea that the sentimental value of the property was at best secondary: the main issue was whether the state, city, or whatever could profit more from taxes on the property if it was sold to a developer. In the Didden case, the question wasn't whether the property would be developed, and whether the city would get its property taxes as a result. The issue, instead, was who was going to build the drugstore, profit from the construction and ownership, and pay those taxes to the city. I've heard nothing about Wasser doing a better job, or building a larger store or something, so presumably his profit and his taxes will be identical to those that would have been paid by the other owners. The city, near as I can tell, picked the winner of the dispute based on who they knew and who they wanted to profit from the deal. Unless I have completely misunderstood this whole thing, that ought to be illegal, and certainly shouldn't be validated by a court.

This points up the obvious question: is Sotomayor an unquestioning statist, convinced that anything the State does to private individuals is good, provided they're (presumably) rich and/or white? Or did she somehow misunderstand the case, or have I somehow misunderstood it? Leaving aside the issue of the purchase price of the property (which is no doubt important from a lawyer's or a businessman's point of view), the question is rather simply "who profits?" from the construction of the store. Amazing.
6.16.2009 2:43pm
Oren:

Like I said, look at the facts.

An appellate court is not a court of fact, it is a court of law. The appellate court can either accept the facts as found by the lower court or remand to develop the record further.

Are you arguing that she should have remanded to more fully develop the plaintiff's theory that this was a pretextual taking or are you arguing that she should have gone to insufferable lengths of judicial activism to invent facts not in the record and then rule on them?
6.16.2009 3:35pm
Oren:


The lower court erred, and should have been reversed. That is the whole point of having a court of appeals, is it not? Or was it Sotomayor's duty to rubber-stamp clear error during her time on the Second Circuit?

What clear error? Was it an error of scrutiny or an error of fact?

Note that "clear error" is a very different term than "wrong result". Didden is the wrong result, but it's a wrong result that follows from a correct application of the relevant law (Kelo, an opinion that disagree with I do, it binding on the circuits).
6.16.2009 3:40pm
Oren:

If I understand it correctly, the Kelo decision essentially was built around the idea that the sentimental value of the property was at best secondary: the main issue was whether the state, city, or whatever could profit more from taxes on the property if it was sold to a developer.

This is the wrong way to look at it, imo.

It's not a question of whether the current owners value it, it's a question of whether seizing it for redevelopment serves a public purpose ("public purpose" having eclipsed "public use" since the 19th century, as I cited earlier). They key dispute in legal terms is not whether land can be taken for redevelopment provided it serves a public purpose (it can) but what standard of review the courts should use when evaluating it. The majority in Kelo said that the courts should not second-guess the legislature's judgment of what constitutes public purpose and therefore establishes an obscene (imo) deference to their finding of "fact".

Sentimental value never enters into the discussion, it's a simple matter of what constitutes public purpose and, more importantly, who gets to judge whether a particular taking serves a public purpose.
6.16.2009 3:44pm
some guy:
it's a simple matter of what constitutes public purpose

So, in your view, Gregg Wasser building a Walgreens --as opposed to Bart Didden building a CVS in the same spot -- is a "public purpose"? That argument is laughable on its face, and should not survive any standard of review. Showing deference to the legislature (or city council, or whomever) is not the same as covering your ears, closing your eyes, and rubber-stamping everything the legislature does.
6.16.2009 3:58pm
Oren:

So, in your view, Gregg Wasser building a Walgreens --as opposed to Bart Didden building a CVS in the same spot -- is a "public purpose"?

No, in my view it's not.

Unfortunately for us, the opinion in Kelo did not contemplate asking random bloggers on the internet for their opinion of "public purpose", but rather defers to the factual judgment of the legislature (qua The People) on whether it does.


That argument is laughable on its face, and should not survive any standard of review.

Except one by an DCJ, 3 CA judges, the majority of the 2CA that voted against rehearing and at least 5 SCOTUS justices that voted against granting cert. So, it's laughable except when it's not, apparently.


Showing deference to the legislature (or city council, or whomever) is not the same as covering your ears, closing your eyes, and rubber-stamping everything the legislature does.

On the other hand, simply because there exists a claim of some malfeasance, does not authorize the courts to engage in searching scrutiny contrary to settled law.

Kelo does two things -- it broadens the scope of "public purpose" AND it instructs the courts not to engage in a searching inquiry as to that finding. Together, these two make for an insurmountable hurdle for plaintiffs challenging a taking. Of course, that makes Kelo bad law but it does not relieve the lower courts from applying it.
6.16.2009 4:28pm
methodact:
There are ancillary values beyond mere pretium affectionis, (sentimental value). Movies abound with the theme where the character's life's entire purpose becomes the return to one's roots, to the place where one grew up and imprinted. People often define themselves by no less. The founders themselves originally held that it was the propertied class that had rights.

Curiously, corporations under KELO, aren't made to part with some of their ownership stock, in kind. Why must mineral rights, etc., be forfeit too, in case the corporation has secretly discovered gold, water, or oil, etc.?

Going beyond stare decisis, this HUGE notion that EMPATHY plays in just law cannot easily be diminished. Lack of empathy is sociopathy. The very failure of the Nuremberg defense before law, was predicated upon the underlying presumption of the quality empathy, as a neccessary pillar of lawful authority.
6.16.2009 4:56pm
some guy:
Kelo does two things -- it broadens the scope of "public purpose" AND it instructs the courts not to engage in a searching inquiry as to that finding.

With all due respect, Sotomayor did not need to engage in a "searching" inquiry to see this taking as the pretext that it was. The property owners wanted to build a CVS pharmacy. A developer demanded that the property owners pay him $800k to make him "go away," or alternatively give him half of their store. The owners declined, and their land was seized the very next day. The putative "public purpose" was to build a Walgreens pharmacy (instead of the CVS) in the same location.

There isn't a whole lot of heaving lifting that needs to be done here.

Together, these two make for an insurmountable hurdle for plaintiffs challenging a taking.

Obviously, Kelo does not make it "insurmountable" for plaintiffs to challenge a taking. Courts must show deference to the initial "public use" determination, but they must still provide meaningful judicial review. Furthermore, as I quoted before, Kelo states in unambiguous terms that eminent domain may not be used "under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit."

There is a role (however limited) for the judges here, and Sotomayor failed in that role.
6.17.2009 3:41pm

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