Once upon a time, not too long ago, the word “bullshit” was deemed to be unprintable, so euphemistic synonyms like humbug, balderdash, claptrap, hokum, drivel, and buncombe were used instead. Then, a few years ago, along came Princeton Professor Emeritus, Harry G. Frankfurt, who published a small book entitled On Bullshit (Princeton Univ. Press 2005) and set us straight by defining and explaining the meaning and proper usage of “bullshit.” As we recall, Professor Frankfurt’s little book even made it onto the bestseller list for a short while. That struck us as fortuitous because at that time, starting around 1980, bullshit became a staple of discussion of regulatory takings.
Credentialled professors took to law journals to assert that there is no such thing as a non-physical taking, Justice Holmes and the Supreme Court to the contrary notwithstanding; that even if there were such a thing, the remedy would not be the “just compensation” specified in the constitution, but only a judicial declaration that the confiscatory regulation was invalid; that Justice Holmes didn’t mean it when he formulated the regulatory taking doctrine in Pennsylvania Coal Co. v. Mahon (when regulation goes too far it will be judicially recognized as a de facto taking). No less a personage than Charles Breitel, Chief Judge of New York, bought into this nonsense, notwithstanding that it required a disregard of what Holmes actually said, and imputed to him an entirely different idea, namely, that when Holmes said “taking” he meant “deprivation of property without due process of law.” To his credit, Justice Brennan promptly shot Breitel down in his opinion in San Diego Gas & Electric Co. v. City of San Diego and characterized Breitel’s theory as an attempt to “tamper” with the language and holding of Justice Holmes’ Pennsylvania Coal opinion.
Though Breitel’s idea avowely required the substitution of mindreading for a plain reading of Holmes’ Pennsylvania Coal opinion, it spread like weed. It was accepted as gospel by the California Supreme Court in Agins v. City of Tiburon, and affirmed on other grounds by the U.S. Supreme Court in 1980. But that state of affairs didn’t last — in 1987, the U. S. Supreme Court came to its senses, and in First English Evangelical Lutheran Church etc. v. County of Los Angeles invoked Justice Brandeis’ unanimous opinion in Hurley v. Kincaid , reviewed the Agins ruling on the merits, and held that the California Supreme Court was wrong on the issue of remedies for regulatory takings, and that Agins had been wrongly decided.
But that left a question: Why did Breitel undertake this intellectual misadventure? What difference would using the two doctrines make? After all, isn’t deprivation of property without due process unconstitutional the same as its uncompensated taking? Yes it is. But Breitel reasoned that takings trigger relief under that pesky “Just Compensation” Clause, whereas the Due Process Clause is silent on remedies. So Breitel’s sneaky idea was that if he could characterize a taking of property as a “deprivation,” no compensation would have to be paid, and an aggrieved property owner’s sole “remedy” would be limited to a judicial declaration that the government shouldn’t have done what it it did — a remedy that was ineffective because by the time an aggrieved property owner could get the courts to issue such a statement, he would be out a fortune in the property’s forgone utility, taxes and other expenses, lost opportunities, attorneys’ fees etc., etc., and at times would lose the property by foreclosure.
In short, Breitel’s theory was an example of Franfurt’s bullshit in its purest form — not an outright factual falsification of legal history, but not an true depiction of it either. It was a statement that exhibited “a lack of connection to a concern with truth — [an] indifference to how things really are — that [he] regard[ed] as the essence of bullshit.” (Franfurt, supra, at pp. 33-34).
Alas, history tends to repeat itself, so here we go again. This time U. S. Supreme Court is about to hear oral arguments in Arkansas Game & Fish Commission v. United States in which the feds released dammed up waters and flooded state-owned forest lands on and off for some five years. Though eventually the feds drained the floodwaters, the flooding had destroyed valuable state timberlands, for which the U.S. Court of Federal Claims awarded over $5 million. A taking? Seems clear to us. Inundation of land has been deemed a taking since the 19th century Pumpelly v. Green Bay Canal Co. case, and destruction of property for a pulic use (except to stop a conflagration or by troops in wartime) is deemed to be a taking, as the court pointed out in the General Motors case. The case of Cooper v. United States, 827 F.2d 762 (Fed.Cir. 1987) seems directly on point in favor of the Commission.
Moreover, temporary takings are a staple of federal eminent domain law, as in cases where the government takes leaseholds, temporary construction easements, or when it overstays its right to possession under leases that come to an end. The point is that whatever the facts giving rise to a “temporary” taking, cases in which the government physically displaces the owner and prevents him from using his land are indeed takings. And even if you twist the English language and call a five-year taking “temporary,” that seems plenty “substantial” an interference with use of the flooded land to qualify as a taking.
So what’s the problem? These are all elementary applications of eminent domain law. During World War II, takings “for the duration” ran into hundreds, if not thousands, and damages set by the courts included rents, and the cost of the taken property’s restoration. Many of them were for less than five years. Yet nobody that I am aware of ever suggested that those cases should not have been compensated because they were “temporary.”
So we await the decision in the Arkansas case with bated breath hoping to learn whether ad hoc Frankfurterian bullshit will triumph over legal doctrine. Stay tuned.
Follow up: For a thorough discussion of the Arkansas Game & Fish case by Lyle Dennison, entitled Argument Preview: Duty to Pay for Flooding, go to www.scotusblog.com and check out the post of October 2, 2012.
Second Follow-up. Go to scotusblog.com http://www.scotusblog.com/2012/10/argument-recap-trust-us-as-a-legal-standard/#more-153189 for a detailed descripion of today’s oral argument. What we find amazing is that no one, on either side of the bench, took note of the direct-inverse dichotomy whereby the government has to pay compensation when it files an eminent domain action to effect a temporary taking, but can just ignore the constitution, and inundate (or otherwise temporarily take) private land without observing the nicety of filing such an action or paying compensation, as it is required to do under the Uniform Relocation Assistance Act.
Full disclosure: Your faithful servant briefed and argued the Agins case before the U.S. Supreme Court, and filed an amicus curiae brief supporting the church in the First English case.