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property rights

James DeLong, lawyer, author, astute analyst of regulation and longtime friend of Overlawyered, has begun writing for Forbes and this is his inaugural post. It’s short — go read it now. His second post is on “ObamaCare, Chevron, and Congressional Delegation.”

Way back in 1997 I reviewed Jim’s book Property Matters for the Wall Street Journal.

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Environment roundup

by Walter Olson on November 11, 2014

  • In Utah prairie dog case, federal judge finds Endangered Species Act regulation of intra-state property impacts exceeds scope of enumerated federal powers [Jonathan Adler, Evan Bernick, Jonathan Wood/PLF] Certiorari petition on whether economic considerations should enter into ESA measures on behalf of delta smelt in California [Ilya Shapiro and Trevor Burrus]
  • “While Smart Growth as a whole is maligned by some advocates of the free market, many Smart Growth tenets are actually deregulatory.” [Emily Washington, Market Urbanism; related, obnoxious-yet-informative Grist]
  • Economic logic should be enough to halt suburban Maryland Purple Line, but if not, says Chevy Chase, hey, let’s find a shrimp [Washington Post; Diana Furchtgott-Roth on economics of Purple Line]
  • SCOTUS should review Florida-dock case in which lower courts held property rights not “fundamental” for scrutiny purposes [Ilya Shapiro and Trevor Burrus]
  • “The Problem of Water” [Gary Libecap, Cato Regulation]
  • Paul Krugman and others hyped the rare earth crisis. Whatever happened to it? [Alex Tabarrok]
  • Louisiana judge strikes down state law prohibiting levee boards’ erosion/subsidence suit against oil companies, appeal likely [New Orleans Times-Picayune]

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May 23 roundup

by Walter Olson on May 23, 2014

  • Worst article of the week? Cheering on tort lawsuits as a way to trip up legalized pot [John Walters and Tom Riley, Weekly Standard]
  • Remember not long ago when they used to tout VA health care as a success story and model to be imposed on other health providers? [James Taranto, recalling Paul Krugman, Ezra Klein and many others; more thoughts from Coyote and Roger Pilon]
  • Muscle and intimidation: union + allies surge onto Oak Brook, Ill. McDonald’s headquarters property, closing key management building [Bloomberg; related earlier here, here, here, etc.] Yesterday I got into a Twitter conversation with Tim Noah (defending the protesters’ action) and William Freeland (siding with my own view), culminating in this rather startling comment from a Center for American Progress/ThinkProgress reporter: “This entire convo backs up the point the private property law itself functions as gov’t cronyism for the wealthy.” Wow!
  • Long, impassioned Ta-Nehisi Coates case for reparations [Atlantic, sidebar, Jonathan Blanks, my 2008 thoughts which eventually grew into a chapter in Schools for Misrule]
  • “Insurers Demand $2 Million for Negligent Squirrel-Torching” [Holland Twp., Mich.; Lowering the Bar]
  • R.I.P. left-wing historian Gabriel Kolko, whose project of de-mythologizing the Progressive Era won him a large libertarian fan base; initially contemptuous of that fan base, he came eventually to mellow with age and discern elements of common ground [Jesse Walker]
  • Hard lesson for Congress to learn: “Hawaiians simply aren’t American Indians in the constitutional sense” [Ilya Shapiro, Cato, background]

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Ted Frank, who formerly blogged in this space, wrote this which I thought worth passing on:

I hate to see how many on my side who are upset at Obama’s violation of the Rule of Law cheer the Bundys’ criminal contempt of a court order. The Bundys are claiming a right to graze upon federal lands without paying or consent of the landowner on the grounds that the federal government has no sovereignty over Nevada. The US BLM has taken twenty years and multiple court proceedings to kick them out, winning twice in the Ninth Circuit. In response, armed militias showed up this week to defend the Bundys, who have threatened range war. The government has temporarily caved to avoid the possibility of armed confrontation. This really isn’t a close question, and threatens to tar all small-government and Second Amendment supporters.

It has been objected that ownership of vast tracts of the American West by the federal Bureau of Land Management is a very bad idea, might have appalled many Framers and early legislators, and has been advanced into our own era through aggressive policies to curtail the participation of private users. I’m having trouble seeing the relevance of all this, however, to Bundy’s supposed right to defy multiple court orders. The federal government should not be in many different lines of business that it currently is in, but that doesn’t create a right of individual citizens to occupy federal installations for personal economic benefit despite court orders directed against them to the contrary.

Ted also calls our attention to this article by Logan Churchwell and Brandon Darby on the 20-year history of the controversy and the positions advanced by rancher Cliven Bundy to justify contempt of the court orders:

“I believe this is a sovereign state of Nevada,” Bundy recently told a radio reporter. “…I abide by all of Nevada state laws. But, I don’t recognize the United States Government as even existing.”

More: A different emphasis from John Hinderaker (arguing for sympathy with Bundy while conceding the meritlessness of his legal position) and Kevin Williamson.

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Maryland roundup

by Walter Olson on April 12, 2014

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“Union representatives join federal government safety inspectors on site visits to non-union businesses” [Patrick Howley, Daily Caller; SHRM, Better Roads, Associated Builders and Contractors on OSHA (Occupational Safety and Health Administration) letter of interpretation]

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Bullet overflight

by Walter Olson on February 7, 2014

Does it violate your rights when someone’s flying bullet enters your property? Should the law attempt to prohibit that? Or does it depend on the setting and customary land uses in the community? [Insurance Journal on Fla. law]

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The Supreme Court had already ruled that disproportionate “exactions” levied on property owners in exchange for the right to develop are an unconstitutional taking if they consist of demands for land. Now, in Koontz v. St. John’s River Water Management District, the Court confirms that the rule also applies to exactions of money and effort — in this case, a demand that a landowner develop a government property miles away from his own holdings. It also confirms that the principle applies to denials of permits as well as approvals. [Roger Pilon, Tejinder Singh/SCOTUSBlog, Ilya Somin, Damon Root/Reason] Background: Cato brief and summary, Timothy Sandefur and Ilya Shapiro. More: Richard Epstein, Gideon Kanner, Randal O’Toole, Rick Hills, Ilya Somin.

In its unanimous decision yesterday in Horne v. U.S. Department of Agriculture, the Supreme Court did not reach the merits of whether the Agricultural Marketing Agreement Act of 1937 worked an unconstitutional taking without compensation from the Horne family, who process as well as grow raisins in central California, by compelling them to participate in its scheme. But it did rule that the Ninth Circuit was wrong in disclaiming jurisdiction over the Hornes’ suit on the grounds that they should have paid an enormous fine first and then sued to get it back. In doing so, it rejected the position taken by the Obama administration in favor of that taken by (among others) a Cato Institute amicus brief. (More: Ilya Shapiro, Cato; Ilya Somin; Damon Root, Reason; more background, Lyle Denniston/SCOTUSBlog, Michael Doyle/McClatchy, The Economist, James Bovard, Ilya Shapiro)

After the Ninth Circuit takes a further look, it would surprise no one if the merits of the case wound up back at the Supreme Court. I touched on the merits in this earlier post:

Max Boot, who has written a new book on the history of guerrilla movements, tells how Shamil, firebrand leader of a celebrated 19th-century Muslim insurgency in Chechnya and Dagestan, began to lose the allegiance of “many ordinary villagers who balked at his demands for annual tax payments amounting to 12 percent of their harvest.” Instead, they switched their allegiance to the rival Russian czar, whose demands were more modest.

The USDA’s marketing order committee demanded that the Hornes hand over 47 percent of their raisins without compensation.

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