Monthly Archives: January 2012

Requiem for Law Books

We have been aware for some time that law books — those bound court reports that are displayed as background in lawyers’ photographs, are going out of style, and that you literally can’t give them away. Now comes news that even existing law libraries are being phased out, replaced with electronic data bases, and their space converted to offices. Word just reached us that this is what is happening in a large law firm with which we had been connected, which brings it all close to home.

Apart from the fact that this is sad — the passing of an era and all that — to us it means that something good is going out of the practice of law. You can be a keyboard whiz, but doing it that way somehow never replaces the feeling one gets from handling a book. To say nothing of the process of browsing — we like the idea of flipping through the pages and discovering, right next to the on-point case we just read, another seemingly unrelated case that nonetheless contains useful language that is pertinent to another matter you may be working on. We don’t know how that happens, but it does.

So it looks like from now on bookworms will be geeks. Too bad.

Back in the Saddle — Sort of

Fun was had at the ALI-ABA 29th annual eminent domain program in San Diego. We are impressed by the quality of the people who show up, not only as participants but also as memebers of the audience, and by how they all manage to engage in what is called “networking” these days. The program materials, both in the form of the attendees’ handout materials (about the size of a telephone book) and DVDs are available to those who couldn’t make it to the program. Contact on that one.

The bad news, is that your faithful servant has come down with some sort of cold/flu crud of a kind that he hes never experienced before, and which he is still fighting. So if it takes a few days for us to get properly back in the saddle, bear with us. Given the nature of the weird field of law and human behavior we deal with, something noteworthy is bound to come along soon. So stay tuned.

Eminent Domain Reform — Selling a Mess of Pottage in Virginia

The Good Book teaches that men are ever ready to sell their birthright for a mess of pottage, which is another way of saying that they will thoughtlessly sacrifice important principles on which their society rests for the sake of a short-term economic gain. Case in point: Virginia, where the legislature is in the process of amending the state Constitution to tighten limitations on the promiscuous use of eminent domain. The proposed constitutional amendment provides  “That the General assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use.” The law further explains that a taking is not deemed a “public use” if the primary use is for private gain, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property.” Sounds reasonable to us.

The U.S. Constitution’s Fifth Amendment, which is binding on the states via the 14th Amendment under the “selective incorporation” doctrine, requires that takings of private property be for a “public use.” True, the U.S. Supreme Court has interpreted that phrase in an  Orwellian fashion, and has substituted all sorts of stuff — like public advantage, publis purpose, public benefit or public welfare — for the straightforward constitutional term “public use.” You can find a useful discussion of that problem in Ellen Frankel’s book PROPERTY RIGHTS AND EMINENT DOMAIN (Transaction Books 1987) at pp. 92-93.

It all culminated in the wretched 2005 Kelo case where a SCOTUS majority blandly approved the taking of an unoffending lower middle class residential community supposedly for redevelopment in the form of upscale shops, condos and a five-star hotel that would cater to well paid employees of the nearby Pfizer pharmaceutical company, and thereby — so it was said — increase public and private cash flow to the community. But this was wishful thinking. The Kelo-style redevelopment proved to be a disaster. The chosen redeveloper could not even get financing (and that was before the 2008 recession) and the project never got off the ground after wasting over $100 million in public funds. The Pfizer company whose wellbeing was supposedly the economic lynchpin of that redevelopment project, has since closed up its New London facility, and moved out of town, taking some 1400 jobs with it. Today, the site of New London’s Kelo project, where the homes of Susette Kelo and her neighbors once stood, is a dump used to dispose of hurricane debris, producing no revenue.

In light of that object lesson — and there are others like it — many states have decided to tighten up their eminent domain laws in order to prevent the occurrence of this sort of thing within their borders. Virginia is one of them. Naturally, you would expect that condemnors would oppose reform. Redevelopment has been a bonanza to them — a source of unaccountable power and money, even if in practice it often fails and  impoverishes the communities engaged in it, wasting fortunes in the process. In California, things reached such a state that the legislature finally had enough, and abolished redevelopment in that state. Virginia, by contrast, only wants to tighten up limitations on the use of eminent domain for redevelopment and “economic development,” make sure that the constitutional term “public use” is not being distorted and misused for private gain, and the property owners whose land is taken are more justly compensated, instead of receiving only partial compensation as they do now.

But the bad guys are resisting reform, which is hardly surprising. What is surprising, however, is who has joined forces with them. The Washington Business Journal reports that “a coalition of Norther Virginia chambers of commerce has launched a campaign to oppose proposed amendments to the state constitution limiting use of eminent domain.” Michael Neibauer, Morthern Virginia Chambers Oppose Eminent Domain Bill, Wash. Business Jour., January 18, 2012, click here. On its face, this makes no sense, does it? Why would business people who you would think are committed to security of private property which is their lifeblood, support a legal regime that would enable their more politically powerful competitors to enlist the power of government to take their propery from them? Remember that eminent domain requires payment of “just compensation,” but in Virginia that includes only the fair market value of the real estate — the soil, and the structures which stand on it. There is no compensation for loss of business goodwill — which can be quite valuable — and no compensation for other business and incidental but demonstrable economic losses inflicted by eminent domain.

So why would these chamber of commerce types support the uncompensated destruction of their businesses so that other businesses can be built by their competitors on their former land? The answer is that they think that they will benefit from the eminent domain regime they support at the expense of others. To paraphrase Winston Churchill, they want to feed others to the crocodile in the hope that it will eat them last. But it doesn’t work that way. If permitted, sooner of later businesses will feel the sting of eminent domain. But at the moment they don’t care because they think (or more accurately, hope) that in the short run they will benefit from the misfortune of their fellows whose homes, farms and businesses fall prey to redevelopment. We shall see if they sing another tune when the government decides to take their property and destroy their businesses without compensation.We hope that Virginians will see through this sort of unabashed rent seeking by greedy, selfish  people out to enrich themselves at the expense of their neighbors.

Virginians might also do well to remember the efforts of a determined lady named Nancy McCord who for years led an exemplary fight against eminent domain abuses in Virginia. It is tragic that she isn’t here to see the progress being made in reforming the law of eminent domain, and to lead the good fight for rectification of these injustices. But make no mistake, she planted the seeds of that reform with her untiring efforts to bring a modicum of justice to her fellow Virginians.

Lowball Watch – Missouri reports the results of an eminent domain case involving the taking of a Greyhound bus repair facility in St. Louis. Missouri. DOT offered the owners $1.7 million, but the jury verdict was $4.5 million. The reported facts are sketchy, so we are unable to tell you what legal or valuation issue(s) didvided the parties. The award was thus over two-and-a-half times the DOT offer.

Another interesting aspect of this case, the sort of thing that is rarely reported, is that the Greyhound facility employs 45 people, and so far has been unable to find another property suitable for a new replacement facility. So it’s possible that many of these jobs will disappear. For the original story, Patrick M. O’Connell, MoDOT Loses St. Louis Eminent Domain Case,, January 19, 2012 – click here

High Speed Rail (Cont’d.)

Here is an interesting article in the Washington Post recounting the ups and downs of Californi’s proposed high-speed railroad that if built would eventually link San Diego and San Francisco, although its first segment is proposed for the middle of nowhere, in the Central Valley between Bakersfield and Fresno. The Post article contains a good, balanced summary of the problem, and if you haven’t been following the California high speed railroad caper, is a good place to get briefed on the problem. See  Plans for High-Speed Rail Are Slowing Down, The Washington Post, January 15, 2012, click here

In the meantime, back in California, Governor Jerry Brown takes the position of “damn the growing State debt, full speed ahead.” He wants that railroad built, and he wants to start construction now. Evidently, at least according to the Times, the Guv wants to establish his “legacy” in the form of construction of major projects that will make California what it once was, when his father was Governor. Nice try, Jerry.

The problem is that today’s California is flat broke and considers it an annual achievement to cobble together a state budget that is only a few billion short of being balanced. Make no mistake, we happen to like choo-choo trains ourselves and use them regularly on our trips to San Diego, but as the Good Book says, for everything there is a season, and right now, when the once Golden State of California is flat-broke, may not be the time to take on a debt of some $100 billion that, as all other projected costs of public projects, is certain to wind up costing much more than that.

See Governor Jerry Brown’s State of that State Speech Puts Focus on Big Projects, January 19, 2012 – click here

For an alternative vision of California we offer the following excerpt from today’s column of historian Victor Davis Hansen:

“In my state, Californians for 40 years have hiked taxes; grown their
government; vastly expanded entitlements; put farmland, timberland and oil and
gas lands off limits; and opened their borders to millions of illegal aliens.
They apparently assumed that they had inherited so much wealth from prior
generations and that their state was so naturally rich, that a continually
better life was their natural birthright.

“It wasn’t. Now, as in Greece, the veneer of civilization is proving pretty thin in California. Hospitals no longer have the money to offer sophisticated long-term medical care to the indigent.
Cities no longer have the funds to self-insure themselves from the accustomed
barrage of monthly lawsuits. When thieves rip copper wire out of street lights,
the streets stay dark. Most state residents would rather go to the dentist these
days than queue up and take a number at the Department of Motor
Vehicles. Hospital emergency rooms neither have room nor act as if there’s
much of an emergency.

“Traffic flows no better on most of the state’s freeways than it did 40 years
ago — and often much worse, given the crumbling infrastructure and increased
traffic. Once-excellent K-12 public schools now score near the bottom in
nationwide tests. The California state university system
keeps adding administrators to the point where they have almost matched the
number of faculty, although half of the students who enter CSU need remedial
reading and math. Despite millions of dollars in tutoring, half the students
still don’t graduate. The taxpayer is blamed in constant harangues for not
ponying up more money, rather than administrators being faulted for a lack of

In 1960 there were far fewer government officials, far fewer prisons, far
fewer laws and far fewer lawyers — and yet the state was a far safer place than
it is a half-century later. Technological progress — whether iPhones or Xboxes
— can often accompany moral regress. There are not yet weeds in our cities, but
those too may be coming.

“The average Californian, like the average Greek, forgot that civilization is
fragile. Its continuance requires respect for the law, tough-minded education,
collective thrift, private investment, individual self-reliance, and common
codes of behavior and civility — and exempts no one from those rules. Such
knowledge and patterns of civilized behavior, slowly accrued over centuries, can
be lost in a single generation.”

All aboard!

Afterthought. For another excellent article juxtaposing the state of California in bygone days with its current condition,  read Jennifer Rubin, California, There It Went, Commentary, October 2010, at p. 43. Rubin writes not only as a journalist, but also as a former resident who lived in California for 40 years, and then decided to move back East.

Charles M. Haar, R.I.P.

Charlie Haar, retired Harvard Law professor died in Miami on January 10, 2012, at the age of 91.

His field was land use. He was largely government-oriented in his views, and in his last law journal article fiercely defended traditional Euclidian zoning, in spite of the fact that in practice it was often used as an exclusionary device, and that the passage of time exposed its many other flaws. You can get his proper obituary on the Harvard Law School web page

We won’t attempt to comepte here with those eulogizing him, but we feel obliged to pass on one little known war story to our readers. In the 1960s, Charlie was assistant secretary for metropolitan development in the Department of Housing and Urban Development (HUD), and in that capacity he prepared and submitted to President Lyndon B. Johnson an “administratively confidential memorandum” entitled Thinking the Unthinkable About Our Cities: A Scenario in Four Parts.  You can read  it as an appendix to Roger Biles, Thinking About the Unthinkable About Our Cities — Thirty Years Later, 25 Journal of Urban History 57 (1998). An interesting read, that.

Why Haar’s paper was classified as confidential for some 30 years, is not clear to us, but you can form your own opinion as to that. Our hunch is that it was feared that upon receiving widespread publicity, the condition of cities may well have stimulated a large-scale exodus from cities to suburbs, which was already underway without it. See our brief discussion of the factors that added up to motivate city dwellers to head for the suburbs en masse, in 4 Albany Gov’t. L. Jour. at 70-71. But this exodus happened anyway.

Haar was right in his perception that as a ressult of the riots of the 1960s, cities faced a choice between (a) becoming armed fortresses, or (b) there would be an emergence of black-governed cities with the white urban population turning inward, or (c) we would see the white populations move out to the suburbs. He was right. What we got was a combination of (b) and (c). But his hopes for a harmonious solution to urban race problems, however, did not materialize.

R.I.P. Charlie.

. . . And Speaking of Beach Access . . .

It turns out that, though the California Coastal Commission has for years insisted that owners of beachfront land who want to build or make improvements to their homes, have to dedicate beach access paths — see Nollan v. Calif. Coastal Commission, 483 U.S. 825 (1987) — a lot of those paths have not been actually opened and exist only on paper. Tony Barboza, L.A. County Lags Behind Region in Beach Access, L.A. Times, January 16, 2012, at p. AA1 — click here.

Los Angeles County, notably — surprise, surprise! — the Malibu area, turns out to be the biggest offender. There, the Coastal Commission ordered 34 walkways to be constructed, but only 13 have been built and opened.

Beach Access Paths That the Government Demanded and Got in Malibu, Can’t Be Used Because the Government Won’t Let the Public Use them

This is one of those wacky can-you-believe-this? things, so we’ll just provide you, dear readers, with a quote from the L.A. Times and let you judge for yourself — Tony Barboza, A Public Beach In Malibu With Few Amenities For the Public, L.A. Times, January 8, 2012:

“A prime stretch of Malibu coastline has been in public hands for decades, but
you wouldn’t know from looking at it.

“Dan Blocker County Beach has no official parking spots, no welcome sign, no permanent
restrooms or other visitor-friendly amenities. It spans a mile of Los Angeles County’s most stunning coastline on Pacific Coast Highway, but there is no pathway down the steep, roadside bluff to the sand. And a third of the property is blocked off with a chain-link fence that beachgoers must go around, scale or squeeze through to reach the seashore.

“The county Department of Beaches and Harbors has owned the 11-acre beachfront property for 16 years and operated it even longer, but has so far failed to develop it into a beach most people can
actually use. In fact, officials discourage visitors from trying to reach the shore from the highway above out of concern that they will be injured scrambling down the 20-foot bluff.”

So what we have here is that, first, the law in all her majesty requires the creation of public beaches and public access thereto, and then the selfsame law causes the county to prevent access to them because under our freewheling tort system, somebody might get hurt there.

In the meantime the County is sitting on some $700,000 allocated for improvement of that beach, which it hasn’t used. Your tax money at work.

Oh yes. We almost forgot. The City of Malibu wants to take over that beach and improve it so that it can be used by the public but the County of L.A. won’t let it. Don’t you just love it?






Who Pays For “Occupy L.A.”? Guess.

The Los Angeles Times reminds us in today’s edition that when the “Occupy L.A.” mob was finally removed from the city hall lawn where the “protesters” did their thing, they left behind a wreck — both in the form of trash (those are the folks who rail about “polluters”) and of destruction of the lawn that now has to be restored in some form. So the city has been soliciting ideas for that, and the winning one appears to be to replace the lawn with native plants.

The article is silent as to what that will cost and who will pay for it. So far, we haven’t come across any indication that the occupiers will be fined and the fines used for the purpose of city hall lawn restoration. Evidently, the cost of restoration is imposed only on some poor SOB who transgresses some obscure EPA regulation (see our recent comment on the Sackett case), but not on politically correct folks who wreak havoc on a public green spaces.

For the Times article, Plans Floated to Fix City Hall Lawn Ruined by Occupy L.A. Campers, L.A. Times, January 16, 2012 – click here.

“Campers”??!!! Did the L.A. Times say “campers”? Welcome to la-la land.