Wednesday Writs for 7/17

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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17 Responses

  1. Em Carpenter says:

    I want to point out that I had these Writs finished and scheduled before news of Justice Stevens’ death broke, and it’s just by happenstance that I chose a case in which he authored the majority opinion.Report

  2. PD Shaw says:

    L1: A couple of years after Kelo, I attended a continuing education seminar on Developments in Eminent Domain Law, which took place at a hotel next to the state’s transportation department HQ. I shouldn’t have anticipated what this turned out to be, one part wake, another part revival. Of the hundreds of attendees, only three didn’t have state badges. The seminar reached its pitch with a recitation of the restrictive laws and rulings that had come down since Kelo, and a multi-media display of videos, songs and writings of an anti-Kelo fervor. The attendees were encouraged to gather their strength, know the righteousness of their cause, and gird themselves against a fallen world as they left the tent.

    I don’t know whether the opposition to Kelo was able to sustain its intensity, but the backlash was interesting.Report

    • Oscar Gordon in reply to PD Shaw says:

      I seem to recall that a lot of states very quickly passed laws or amended state constitutions to shore up the private property rights that Kelo damaged.Report

      • PD Shaw in reply to Oscar Gordon says:

        True, but I think the concern was also that the government would be reluctant to use eminent domain as much for fear of political blowback, or that juries would be willing to hit the government harder when fair compensation was awarded.Report

  3. PD Shaw says:

    L9: The dumb criminal is from Reagan’s hometown, which seems to have its share of odd stories now and then. The most famous is probably that the city treasurer, of a city of only about 15,000 people, embezzled $53.7 million over twenty-two years to support her championship American Quarter Horse breeding operation. It is believed to be the largest municipal fraud in U.S. history. Just think of all the inground pools that could have bought.Report

  4. Saul Degraw says:

    L3: Bad link. For the first time in my life, I am working at a firm with billable hours. It is not as bad as I thought it would be. The big thing about BigLaw (multi-state or multi-national firms with big and important corporate clients doing big and important litigation and transaction) is that they demand a hell of a lot of billable hours. Plus everyone is really competitive and trying to do much more because of the “up or out” system. There was also a Big Law managing partner that died from exhaustion.

    L5: Jeez, we might just be getting off the end of the law school crisis/there are no law jobs days (or maybe not) and Cooley is trying to get more students. My own alma mater went from being a respectable tier-2 local school to being around Cooley’s level of esteem or worse and horrible bar passage rates. But Paul Campos once noted that he was surprised that more law schools did not shut down because of the crisis like the dentistry crisis in the 1980s shut down a lot of programs.Report

    • InMD in reply to Saul Degraw says:

      Frankly more should shut down and if they weren’t a cash cow for so many university systems I think they would. What other degree can generate high 5 and 6 figures in tuition with so little overhead? Just lower the standards and people will keep paying. Sadly I don’t think the crisis is well known outside the industry, and cultural beliefs about what attorneys do (and earn) die hard.Report

      • Saul Degraw in reply to InMD says:

        I think all of this is 100 percent correct. I did well all things considered but there were times I struggled a lot and people had no idea that there was a crisis in legal employment. Even older lawyers.Report

    • Em Carpenter in reply to Saul Degraw says:

      Link fixed- thanks.Report

  5. Doctor Jay says:

    L7: In the uncomfortable position of sorta kinda defending something Trump said, I kinda think it was just the “pseudo machismo” side of him. Sort of a, “If I keep on this path, I have to deal with courts, so I’ll take another path” and make it look like it was his idea.

    If he really thought he could get away with not obeying a court order, he’d be putting the question on the Census form right now. The interesting question is why isn’t he? What motivates him?

    I have two possibilities in mind. First, it just doesn’t look good, to his mind. He’s been quoted, in the context of a potential interview with the Mueller investigation, as saying, “the President should not take the Fifth.” Even though, this president should totally take the fifth. He thinks it looks bad. I think he’s right.

    The second is that there are lines that Republican Senators have drawn privately and said, “cross this and I’ll vote for impeachment”. That would get his attention.Report

  6. Brandon Berg says:

    It seems to me that, purely on textual grounds, Kelo was correctly decided. There really isn’t a “public use” clause, as I read it.

    The relevant text is, “nor shall private property be taken for public use, without just compensation.” Nothing here implies any particular definition of public use, or contrasts public use with private use. The natural interpretation, to my mind, is that in this context public use is any use for which government wants to take private property.

    Presumably, the actual thing they were concerned about here was the government capriciously confiscating private property and just telling the owners to go fish themselves. The requirement to provide just compensation imposes a real restraint on capricious takings and limits the damage to property owners.

    Government exercising eminent domain, with just compensation, but for the wrong reasons, just doesn’t seem to be a concern they were trying to address here. Yes, it may be bad, but not all bad things the government might do are unconstitutional, and it’s not nearly as bad just taking your house and giving you the finger. In cases like this, it’s up to the voters to restrain their governments, not the courts.Report

    • Brandon Berg in reply to Brandon Berg says:

      Also, I don’t buy into the idea that there’s something sacred about government-run facilities. I don’t see any good reason why the government should be able to force private property owners to sell so it can build a public housing project in a particular place, but should not be able to do the same so that a private housing development can be built there. If we accept the principle that it’s okay for the government to force people to sell their homes so that other housing can be built, why should public housing should be privileged in this respect?Report

    • PD Shaw in reply to Brandon Berg says:

      Part of the problem with your plain reading is that the due process clause already exists to protect property interests(*), so if the takings clause didn’t exist, there is already a provision that would protect against arbitrary property confiscation. Perhaps it ultimately is redundant, just as it appears that the free press clause is simply contained within the free speech rights. But what I think you are doing is eliminating the phrase “for public use” as having any meaning.

      I think the plainer read is that “public use” means the public has a right to use it. So, if the government wants to build a road, it has to be available for the public to use, no matter whether it is operated and owned by private enterprise; it would be subject to charter that it it would open to “all comers,” even if a toll was required. So, I don’t think it means any public purpose or public ownership.

      I really don’t have strong feelings about this, but the main point where I think I might depart from all of this is that I don’t see why the takings clause was incorporated into the 14th amendment against states to begin with.

      (*) “nor shall any state deprive any person of life, liberty, or property, without due process of law.”Report

      • Brandon Berg in reply to PD Shaw says:

        Well, it says without due process of law. If the legislature passes a bill to confiscate private property without compensation, and the governor signs it, and it’s consistent with the state constitution…well, that’s due process of law, isn’t it? The takings clause additionally requires that, due process notwithstanding, the government has to compensate you for taking your property.

        Grammatically, I just don’t see how “for public use” can be read as limiting the reasons for which property can be taken. If we assume a distinction between taking for public use and taking for private use, then a straightforward reading suggests that compensation is not required when the government takes property for private use. But that’s obviously absurd.

        The Constitution isn’t exactly precision-engineered. There’s all sorts of stuff in there that’s poorly or ambiguously worded, so it’s entirely possible that “for public use” was just thrown in as a rhetorical flourish.Report

        • Jaybird in reply to Brandon Berg says:

          Grammatically, I just don’t see how “for public use” can be read as limiting the reasons for which property can be taken. If we assume a distinction between taking for public use and taking for private use, then a straightforward reading suggests that compensation is not required when the government takes property for private use. But that’s obviously absurd.

          Maybe the straightforward reading could be seen as “oh, the government shouldn’t take property for private use” with an implied “dUh”.Report

        • Stillwater in reply to Brandon Berg says:

          Grammatically, I just don’t see how “for public use” can be read as limiting the reasons for which property can be taken.

          Well, sure. If you have (eg) libertarians arguing that privately owned enterprises advance the public good then “public use” will inevitably include private companies. I think the original meaning of the words is clear, tho, despite the lack of legal precision required to block takings for what everyone would agree are private use.

          THe bigger point is that not only do words change their meanings over time, but that in most contexts (maybe all…) words fail to perfectly map onto the external world, which allows challenges to the accuracy/meaning of their initial use.Report

      • Jaybird in reply to PD Shaw says:

        Yeah, I tend to agree. Taking it and building, say, a highway is something that, while I disagree with it, I understand it. I can have a conversation about it.

        Taking it and giving it to a drug manufacturer? That’s not “public use”. I don’t see how it could be argued that it is.Report