Snap Quiz on The Godfather and Exactions

 "Some day, and that day may never come, I will call upon you to do a service for me. But until that day, consider this justice a gift on my daughter's wedding day."

Don Corleone did indeed call on Bonasera to do a service for him. What service did Bonasera perform for the Don?

Stuck Inside of South Bend With the Lincoln Blues Again

My flight home from Notre Dame today was cancelled due to bad weather.

Thus, no class tomorrow (Wednesday January 23).

Stay warm and safe.

Let's Vote

                                           Justice Thomas at Nebraska Law


Today (Wednesday January 16) you vote to choose the date we will cancel to make up for last Thursdays double class.

Choose well.

Poletown Lives Documentary

In case you missed today's class showing of Poletown Lives, here is a link from the library you can use to access it online:

Poletown Lives:
https://unl.box.com/s/rz2hh2hb2kzf75v9k48gdxem5ufekbrv

A Modest Proposal

Sunset Meadows photo by Hannah Duncan
 

Why not change the law of Takings to require more than "Just Compensation" when property is taken without the consent of the landowner. Why not adopt a rule requiring government to pay some multiple of fair market value (perhaps twice or thrice)? This would recognize that when landowners are evicted from their own property they suffer more than mere economic loss; they also suffer dignity harm and what tort lawyers would call "pain and suffering and emotional distress" damages, which in fairness should also be compensated. What are your thoughts?

Evolution or Creation?

Some commentators reject an originalist theory of interpreting the Constitution in favor of a theory that views the Constitution as a living, breathing, evolving organism. For example, Prof. Erwin Chemerinsky says that "nonoriginalists believe that the Constitution's meaning is not limited to what the framers intended; rather, the meaning and application of constitutional provisions should evolve by interpretation." Justice Stevens seems to be adopting this theory of interpretation in Kelo when he talks about the "always evolving needs of society" producing a "more natural" interpretation of "public use" as "public purpose." See p. 795.

Is this really a theory of evolution? Or is it more honestly a theory of creation? How does the Constitution "evolve" into a new species in so brief a time? Surely, the sudden appearance of new constitutional rules in the fossil record is best explained by a theory of intelligent design, of Creation if you please, by shifting Supreme Court majorities. Thus, when Prof. Chemerinsky says that new constitutional rights "evolve by interpretation" what he means is these new constitutional species are called into being by judicial decisions (intelligent design) written by a Creator consisting of no fewer than 5 unelected lawyers serving lifetime appointments on the Supreme Court.

When the Court speaks of the Constitution evolving is this really an attempt to mask or conceal "what's really going on" as Marvin Gaye might have put it? Why doesn't the Court simply admit that it is making up new constitutional provisions when it calls into being some new rule never intended by the Framers?

Is the Supreme Court's job to amend or re-write the Constitution? Or should the Court faithfully apply the written Constitution ratified by we the People?

Mid-Year Exam Results: Fall 2018

                                               Justice Gorsuch (Art by Josh Duncan)


                                       


Here is the breakdown for the Midyear Exercise:

  3 Students scored 100 points

  4 Students scored 96 points

  5 Students scored 92 points

  2 Students scored 88 points

  7 Students scored 84 points

  3 Students scored 80 points

  9 Students scored 76 points

  5 Students scored 72 points

  9 Students scored 68 points

  3 Students scored 64

  5 Students scored 60 points

 

  6 Students scored 56 points

  2 Students scored 52 Points
 

  2 Students scored 48 Points

  1 Student scored 44 Points

The test median was 74 points.


Pay no attention to the arbitrary "quartiles."  They are meaningless. Totally meaningless. The only thing that "counts" is the number of points you scored out of a possible 100 points.

Thursday Jan 11--Let's Play Two for Ernie Banks

Notice--Thursday Jan. 10-- we will have a double class session (from 12:15 until 2:15).

We will watch a Takings film and then discuss the public use requirement under the Takings Clause.

Poletown Case

Here is a brief summary of the Poletown case from Wikipedia (link):

Poletown East is a neighborhood area of Detroit, Michigan bordering the enclave city of Hamtramck. The area was named after the Polish immigrants who originally lived in the area. A portion of residential area known as Poletown became the Hamtramck auto assembly plant in 1981 with those residents relocated by the city of Detroit which claimed eminent domain in order to make way for an automobile plant.[1]

First settled in the 1870s when the first waves of Polish immigrants came to Detroit, Poletown was the heart of Detroit's Polish community for many years. The nucleus of the community was the St. Albertus Catholic Church, which opened in 1873 and closed in 1990. Poletown experienced its greatest period of growth during the 1920s and 1930s as thousands of Polish immigrants came to Detroit in search of jobs in auto plants and the slaughterhouses that were in the area. Poletown was not only home to Poles, but also to Italians and Blacks. During the 1950s and 60s however, Poletown fell on hard times as freeway construction and urban renewal projects destroyed the neighborhood.

In 1981 the neighborhood was cleared to make way for the construction of the heavily subsidized General Motors Detroit/Hamtramck Assembly plant. The city of Detroit spent some $200 million on land acquisition. It used the power of eminent domain to evict the 4,200 people who lived in the area, along with their 1,300 homes, 140 businesses, six churches and a major hospital.^[2] The plant was built at the boundary of Hamtramck and Detroit as a BOC factory (Buick-Oldsmobile-Cadillac) and became known as the "Poletown Plant". However, the rosy projections of 6000 jobs did not materialize. Employment at the new plant never exceeded half of that number. In the long run, General Motors had to file for bankruptcy.

The displaced residents sued the city to prevent the taking of their properties, arguing that this was a taking for private purposes, not for "public use" as required by the [Michigan] Constitution. However, a divided Michigan Supreme Court ruled that economic development was a permissible use of eminent domain. Public resistance especially from one Catholic parish led to national news attention and the involvement of Ralph Nader and the Gray Panthers. A 29-day sit-in at the Immaculate Conception Church came to an end on July 14, 1981 when police forcibly evicted 20 people from the church.

The decision of the court became a landmark case for "public use" eminent domain matters, and simultaneously a poster child for eminent domain abuse. The decision was overruled by the Michigan Supreme Court in the 2004 decision County of Wayne v. Hathcock. (Although the 2005 United States Supreme Court decision in the case of Kelo v. City of New London states that the use of eminent domain to promote economic development is constitutional on a federal level, the opinion in Kelo cites the Hathcock decision as an example of how states may choose to impose their own restrictions on the taking of property.)

And here is another brief summary of the Poletown decision and its subsequent overruling by the Michigan Supreme Court (link):

The Poletown case
In 1981, the Michigan Supreme Court decided one of the most controversial cases involving eminent domain. In that case, the city of Detroit had seized thousands of homes, businesses, and churches in an area called Poletown (named for the large Polish population in that area) so that General Motors could build a plant on the site. The city claimed that the “public use” limitation was met by virtue of the fact that the new plant would “create jobs” and increase the city’s tax base. Opponents contended that this wasn’t truly a “public use” because the property owners’ property was simply being taken from them to be given to General Motors.
The Michigan Supreme Court ruled in favor of the city, and the effects of that decision rippled out nationwide. As an article posted on NationalReviewOnline entitled “This Land Is Your Land,” by Timothy Sandefur, observed,

Eminent domain, once limited to public uses like roads or post offices, was unleashed in the service of any well-heeled private party able to persuade the local government to see things its way. In the years since Poletown, eminent-domain abuse has exploded nationwide. As Ramesh Ponnuru has pointed out, powerful corporations frequently send representatives to lobby cities for “free” real estate. The city takes a neighborhood, usually of modest homes, and gives it to a developer or a megastore, and then rakes in the higher taxes. The only losers are the home- and small-business owners, who lack the political influence necessary to persuade local officials to respect their rights. Poletown has become the leading symbol of eminent-domain abuse.

In other words, what began as a power to seize property on which to build courthouses and police stations was extended to seizing and redistributing property to alleviate “blight” and then extended again to seizing and redistributing property to improve the economy and the government’s tax base. Of course, a cynic would be forgiven for concluding that the power was being used to take property from those who lacked political influence in order to give it to well-heeled, politically powerful friends of government officials.

A trend toward property rights
In July 2004 the Michigan Supreme Court overturned its infamous decision in the Poletown case. In Wayne County v. Hathcock, the county had condemned private property for the purpose of giving it to a private developer, arguing that the project would serve the public good through jobs and economic prosperity. The court held that the Poletown case had been wrongly decided and that the “public use” power could not encompass the taking of one person’s property for the purpose of giving it to another person. The August 4, 2004, issue of the Detroit News editorialized,

Michigan’s Supreme Court restored the sanctity of private property rights by reversing a quarter-century-old ruling that allowed the city of Detroit to uproot families and businesses in the Poletown neighborhood so General Motors Corp. could build a factory on their land. The original case was a blow to constitutional protections. The new, unanimous ruling restores the concept that government can’t just take away private property because it thinks someone else might use the property better. . .. Municipalities and developers can adjust. Wayne County is going ahead with the Pinnacle Park project. The developers will now have to work harder to obtain rights to land from private owners and pay a higher price. But few constitutional rights are as important as private property rights. The court, in bringing Michigan back into compliance with the intent of the Constitution, served Michigan property owners well.