Author: Eduardo Penalver


Public Access to State Waters

An interesting article today in the New York Times describes a dispute in Montana between owners of land abutting a waterway and members of the public who want to use the water for fishing. The technical legal question is itself an interesting one: whether the water is a natural waterway or a man-made ditch. According to Montana law, if it is a “natural, perennially flowing stream,” the public must have access, so the owners are arguing that this particular body of water is, in effect, an irrigation ditch. Owners have taken to stretching wire fences across the river/ditch to prevent sports fishermen from accessing the water as it flows past private land. The wrinkle appears to be that the water was (beyond dispute) at one time a natural waterway, but that it has been dramatically altered by human activity, including the addition of a series of gates to control water flow. Nevertheless, according to one (Republican) state senator, “[m]y family has been here for a hundred years, and no one except these rich out-of-state landowners thought of it as anything but part of the BItterroot [River].” So one interesting question is whether a natural waterway ceases to be natural once a certain amount of human activity has taken place. And, if so, how much human activity is sufficient to accomplish this transformation?

Perhaps more broadly, the case may present another example of an interesting (and increasingly frequent) pattern in which the wealthy purchase property that is burdened by traditional public access requirements and then fight to prevent the public from exercising those rights, raising privacy concerns to justify their stance.

Read More


Florida Travel Ban Update

Here’s a memo that just went out from the University of Florida the other day, implementing the State’s new prohibition on academic travel to terrorist states:

July 21, 2006



Deans, Directors, and Department Heads


Michael V. McKee, University Controller


Travel to Terrorist States

Senate bill 2434 relating to travel to terrorist states was

approved and signed into law by the Governor effective

July 1, 2006 and contains the following restriction:

Florida Statute 1011.90 (6) – Prohibits the use of state or

non-state funds made available to state universities to

implement, organize, direct, coordinate, or administer

activities related to or involving travel to a terrorist state.

Travel to a terrorist state shall not be allowed under any


The bill defines “terrorist state” as any state, country, or

nation designated by the United States Department of State as

a state sponsor of terrorism. Currently, the State Department

assigns that designation to five countries:

Cuba, Iran, North Korea, Sudan and Syria.

Prior to the passage of this bill, travel to these countries

was allowed, but only from non-state funding sources.

No official business-related travel to the above countries

from any funding source will now be allowed by the University.

If you have any questions, you may contact Randy Staples,

Ted Griswold or Brett Wallen at 392-1245.


NOTE: This and other DDD Memos are maintained on the WWW at:




Florida Travel Ban

A colleague of mine and I are working on an amicus brief concerning a new Florida law that hasn’t received much attention outside of the state. Here’s a link to a Miami Herald article on the law and on the ACLU’s lawsuit challenging its validity on behalf of a group of Florida professors. The law would prohibit any use of state funds for academic travel to countries designated as terrorist states by the State Department and would prohibit faculty at Florida’s state universities from traveling to those countries even if they use private funds. Of course, while the law is worded in terms of “terrorist states,” this is Florida, so it’s really all about Cuba. (UPDATE: To be a bit more clear, the law only prohibits privately funded travel to “terrorist states” when the private funds are routed through the state university, which is typically the case for academic grants from private foundations. The law does not, however, apply to private travel by academics using their own personal finances. So, in response to one of the comments, it would prohibit a math professor from attending a conference in Tehran using his university research budget or even research money from a private foundation, but it would not prohibit a Cuban-American scholar from using her own money to visit family in Cuba. Here’s a link to the law’s text.)

In addition to the obvious preemption/foreign affairs issues, the law raises interesting First Amendment questions. The difficulty in preparing the amicus brief has been finding analogous cases. Our first instinct was to discuss the law as an intrusion on academic freedom. The public forum cases seem to present another promising approach, but, at least in the university context, most of them focus on the rights ot students to engage in various forms of speech on campus.

The interesting thing is that I have not been able to find a comparably broad prohibition on an entire class of research activities. The closest I found was a Virginia law prohibiting people from accessing sexually explicit material on state computers, and even that permitted academics to get dispensation from the university to pursue research activities. Moreover, it involved regulation of state property and not, as in our case, prohibition on the use of private funds for research. All of this leads me to believe that the Florida law is more than a little nutty. But I’d love to get comments from anyone who has come across a similarly far-reaching state prohibition on academic activity.


“In Kind” Just Compensation

According to the Hartford Courant, the last two of the Kelo plaintiffs recently reached agreements with the New London Development Corp. over the condemnation of their homes. According to the Courant, Susette Kelo, “agreed to have her pink cottage moved elsewhere in New London.” Pasquale Cristofaro, the other remaining holdout, “agreed to give up his home but is entitled to purchase a new one in the neighborhood at a fixed price if new homes are built.”

I think this final chapter of the Kelo case is very interesting, for a variety of reasons. First, I wonder whether much of this dispute could have been avoided had the city been willing to offer creative deals like this from the start. It’s not clear that such offers would have been fruitful without the looming threat of eminent domain, so perhaps this is just the best deal that Susette Kelo and her co-plaintiffs believed they could get under the circumstances. On the other hand, after the outpouring of public anger in reaction to the Kelo decision in the Supreme Court (fueled in no small part by a brilliant public relations campaign by Scott Bullock and the other folks at the Institute for Justice), there was fairly substantial political pressure on New London to avoid resorting to outright condemnation in this particular case. So the threat of condemnation may not have been all that salient in these negotiations. That makes me think that this may have been a deal that came fairly close to giving Kelo and the other plaintiffs much of what they were looking for from the beginning.

Which leads to my second observation. Why don’t cities use these sorts of creative, in-kind compensation schemes more often (instead of merely providing monetary compensation at market value, or even at some premium on market value)?

Read More


Property Rights Initiatives, Round II

One of the interesting aspects of blogging is that you can toss off a little ditty on half a cup of coffee, and before lunch, there will be a treatise posted on some blog somewhere dissecting your argument. My (how should I put this) less than fully developed case against Washington State’s property rights initiative came in for such treatment at the less than gentle hands of Geoffrey Manne at “Truth on the Market.” Because I continue to disagree with these sorts of laws, notwithstanding his post (and Prof. Bainbridge’s apparent verdict that I am soundly beaten), I thought I’d try to defend some of my initial points.

Before I begin, I want to note several distinctions that I think Manne (and other defenders of laws like Measure 37) ignore or blur. (This is not really a criticism, as my original post was hardly a model of theoretical clarity. But I do think distinguishing among these various strands of pro-Measure 37 sentiment is helpful.) Measure 37 and laws like it have been defended on libertarian, economic, and fairness grounds. The problem is that it doesn’t quite fit any of them, though it seems to fit the libertarian explanation most closely.

The libertarian case is based on the assumption that regulation intrudes on property rights and should be prevented or at least minimized. Manne, and others, sometimes suggest that Measure 37 is not anti-regulatory as a general matter, because it permits regulation as long as government pays for it. (I will address this point shortly.) Moreover, Measure 37 is selective in its defense of property rights, as I observed in my original post. Despite all of this, I think the libertarian explanation is really the best theoretical fit for laws like this. Their defenders, however, hate to admit this. (It’s tough to find someone in the legal academy who will call him or herself a “libertarian.” Even Richard Epstein prefers to be called a “classical liberal.”)

The economic case for these laws focuses on the desire to get government to take into account the economic costs of regulation. This is the so-called “fiscal illusion” argument for broad regulatory takings compensation. As several scholars have noted, the economic justifications for Measure 37 type laws assume that, if government could only be forced to pay the costs of its regulations, it would limit regulations to those that generate more net benefits than costs, an assumption that — in light of regulators’ diverse incentives — is questionable at best. Moreover, these arguments are subject to the myriad objections that have been raised against the usefulness of cost benefit analysis when dealing with the incommensurable values implicated by land use regulation. (I won’t get into or rely on those arguments in this post.) In any event, by ignoring transaction costs and by only creating a mechanism for internalizing the costs of regulation (and not its benefits), Measure 37 creates an unbalanced set of incentives, a (probably intentional) lack of balance that seems rooted in libertarian, anti-regulatory motives that have little to do with efficiency.

Finally, the fairness case focuses on regulation’s tendency to spread its costs unevenly. Measure 37, however, creates a remedy for any decline in property value due to regulation, no matter trivially small and no matter how widely (and fairly) distributed. For example, imagine a small town that imposed an across-the-board regulation that caused every property owner to suffer a uniform 1% decline in property values. Measure 37 would require the city to compensate every property owner. Of course, if the city chose to proceed with the regulation, it would have to compensate owners out of tax revenue that is (probably) collected from the same property owners. So Measure 37 simply requires the government to go through a few extra steps to accomplish the same regulatory goal, with roughly the same distributive consequences. The problem, as everyone knows, is that none of these steps is free, and not all of them are equally politically feasible. So forcing government down this path seems designed to rig the system against regulation, no matter how fairly it spreads its costs.

Throughout his response to my original post, Manne mixes and matches these defenses in a way that, while perhaps at times rhetorically compelling, makes it very hard to craft a clear response. Nevertheless, bloodied but unbowed, I’ll try to offer a rebuttal case.

Read More


Paid “Volunteers” and Support for Property Rights Initiatives

Over at PropertyProf, Ben Barros has an interesting post up about I-933 that, among other things, takes issue with my skepticism about the broad base of support for these property rights initiatives. Ben says:

Eduardo observes that these initiatives are “often portrayed as the result of broad grassroots outrage at over-regulation,” going on to note the role of property-rights organizations in getting the initiatives on the ballot. While I’m well aware of the flaws in ballot initiative voting, property rights organizations don’t vote. It seems to me very likely that Measure 37 passed overwhelmingly over concerted opposition because Oregon voters were pissed. At a certain point, arguments that voters just didn’t understand what they were voting for just don’t hold up anymore.

Focusing just on the Washington case for the moment, it’s fair enough to point out that property rights advocacy groups don’t vote, but I question whether majority support down the road will really provide evidence that a broad swath of the electorate is “pissed,” as Ben puts it.

The highest barrier (and the one with the most potential to reveal intensity of grass-roots support) in the initiative process is the difficulty of gathering enough signatures to get on the ballot, and in cases where signature collectors are paid (as with I-933), that barrier is substantially weakened, as the Seattle Times notes. Once on the ballot, the ability to attract over 50% of the vote seems to me to be a poor indicator of intense feeling against land use regulation.

That said, I think Ben’s point is, in a broader sense, well taken. A well funded opposition ought to be able to educate the public about the costs of these sorts of laws, and majority support in the face of such opposition probably tells us something about the public’s views on the fairness of the land use regime, even if it doesn’t reveal a public that is intensely angry in the way that Ben and other commentators often suggest.

Most people do not get screwed by land use rules, but I think it’s probably true that a very small number of people can occasionally suffer disproportionate losses. These people usually end up front and center in the advertising campaigns in support of property rights initiatives. But even people who have not been dramatically harmed can, I think, sympathize with the plight of those who have. Enough empathy, and it’s fairly easy to see how a draconian law like Measure 37 can gain majority support in a relatively progressive state like Oregon (and majority support even in the very liberal Portland metro area).

While I am opposed to over-constitutionalizing the necessarily complicated determination of when property owners who have suffered losses due to regulation ought to be compensated, I think the risk of sparking support for a law like Measure 37 provides a good prudential reason for policy makers to be reasonable, and perhaps even generous, when determining whether (voluntarily) to offer compensation or regulatory relief — particularly with individual (as opposed to corporate) property owners. (And, for God’s sake, regulators, be nice to the 90 year old widows.) In any event, it will be interesting to see how all this plays out in Washington State in the fall.


Property Rights Initiative in Washington State

Property Rights groups in Washington State appear to have managed to gather enough signatures to get an initiative put on the ballot in the fall that would, if approved by voters, require compensation for government regulation that results in any decline in property value. Faced with a successful claim, the regulating body will have the option of paying compensation or releasing the landowner from the applicable regulation. The text of the initiative (I-933) is here. I-933 largely mimics Oregon’s famous Measure 37, which was recently upheld against constitutional challenge by the Oregon Supreme Court. Measure 37 has been, by most accounts, a disaster for Oregon land use planning. To date, over 1000 claims have been filed, seeking over $3 billion in damages. Of claims resolved as of October 2005, 90% have resulted in waivers of regulation. Only 10% have been denied. No compensation has been paid.

What’s wrong with these sorts of laws? Plenty.

First, they are based on the wrongheaded and frankly antisocial premise that we should not be expected to bear any burden in our use and enjoyment of property, no matter how trivial. The simple fact is that we all enjoy the benefits of life in society, and life in society entails obligations, including the occasional regulatory burden. These laws reinforce the bizarre notion that we should be able to reap all the benefits of life in community but never be asked to suffer even the least inconvenience. Now, the Washington law has some interesting wrinkles that make this assertion a little more complicated and that, if narrowly interepreted by the courts, might make the impact of the law far less dramatic than Measure 37. For example, I-933 defines a regulation that damages property values as one that “prohibit[s] or restrict[s] the use of private property to obtain benefit to the public the cost of which in all fairness and justice should be borne by the public as a whole.” Property students will recognize this as one of the Supreme Court’s favorite formlulations for a regulatory taking. Accordingly, on a narrow reading of this initiative, it merely requires what the Constitution already mandates and therefore accomplishes, exactly, nothing. But the law goes on to provide specific examples of the sorts of things that might (or should? or would? or do?) qualify under this definition (e.g., prohibition on the replacement or maintenance of a beach wall). Because many of the items on that list would not normally be considered regulatory takings, if the list is read to provide examples of regulations that (per se) satisfy the more general formula, then the law will constitute a dramatic expansion of takings law in Washington State.

Second, these laws are plainly unbalanced in their approach to the consequences of state action, since they do not require property owners to compensate the state for actions by the state that enhance their property values (UPDATE: in a way not shared with other taxpaying property owners). In this, they faithfully reflect the selfishness of their underlying assumptions. The property owner is permitted to freely reap a unique benefit when the state, for example, opens up a freeway exit next to his commercial property, but he cannot be asked to bear an equivalent (or even much smaller) burden without receiving compensation.

Third, while they are often portrayed as the result of broad grassroots outrage at over-regulation, these laws are often the consequence of narrower interest group politics. In this case, I-933 was put on the ballot with the help of paid signature-collectors. Funding came from a variety of property-rights interest groups, including $200,000 from an out-of-state property rights organization. According to the Seattle Times, “Initiative campaigns with the resources to employ paid signature-gatherers almost always qualify” for the ballot.

Fourth, the laws are often downright hypocritical, favoring property rights only for those of whose land uses they approve. Both the Oregon and Washington measures, for example, specifically exclude the regulation of adult businesses (through zoning law) from their ambit. Apparently, their libertarian individualism only goes so far.


Justice Kennedy Swinging Left?

One of the questions I had going into this most recent Supreme Court term was the effect that Justice O’Connor’s impending departure would have on Justice Kennedy. While O’Connor was on the Court, she and Justice Kennedy were universally identified as the key swing justices, but the label was far more appropriate for O’Connor than it was for Kennedy. In the 136 5-4 cases in which the Court’s (more) liberal bloc held together during the period between OT1993 and OT2004, Justice O’Connor supplied the “liberals” with a fifth vote far more frequently than Justice Kennedy (32 times compared with Justice Kennedy’s 17). It goes without saying that the voting pattern of both O’Connor and Kennedy remained decidedly conservative during this period, since the (more) liberal bloc, unable to attract either of the swing justices, lost most of those 5-4 cases.

Following the Court this past term, I developed the impression that Justice Kennedy was swinging to the left more than he had in the past. But I did not try to put a number on that gut feeling until the term ended. Looking at the OT2005 statistics compiled by Tom Goldstein and his crew and by Georgetown, there’s some interesting evidence that Justice Kennedy might be shifting his voting pattern a bit.

During the 1993-2004 period mentioned above, Justice Kennedy provided the fifth vote to the more liberal four only 12.5% of the time. During this past term, however, that number increased (by my count) to almost half (5) of the (12) close cases where the four liberals held together against the conservative justices (Rapanos, LULAC, Randolph, Hamdan, and House — did I miss any?). And in Clark v. Arizona, Justice Kennedy dissented with Justices Stevens and Ginsburg against a majority consisting of Roberts, Scalia, Thomas, Alito, and (doh!) Souter.

This is obviously too small a sample size to make any generalizations, but it will be interesting to see whether the trend continues next term. Still, there seems to be some reason to hope that Kennedy might pick up some of the slack left by O’Connor’s departure. I don’t want to make too much of this, though. Justice Kennedy still sides with his more conservative bretheren most of the time. And, as Rapanos shows, he can be stingy with his fifth vote, which means that when the more liberal justices win, the victories are likely to be incremental at best.