Monthly Archives: September 2013

So Who Were the People Behind the 1970s Attempt to Scuttle the Taking Clause? No, Not the Ones You Think.

On September 8, 2013, we posted an item inspired by the upcoming conference at Touro Law School, commemorating the 40th anniversary of the publication of the book “The Taking Issue” which, as we explained, was an explicit, government-funded attack on the Taking Clause of the Fifth Amendment to the U.S. Constitution — click here. We even gave you the exact quote from the book, ‘fessing up that its authors were out to “help” government lawyers. That’s what they said, folks. We find it rather droll that Uncle Sam, with all his might and power would need help from three guys from Chicago, but we have no reason to doubt the veracity of the New York Times’ reportage. Yes, the New York Times; see Gladwin Hill, Authority to Develop Land Is Termed a Public Right, N.Y. Times, May 20, 1972, at p.1.

But if you stop and think about it, three big-firm lawyers from Chicago don’t just up and obtain this kind of  financial sponsorship (by the Rockefeller Brothers, the Ford Foundation, and the U.S. government) for the funding of such an effort. So who was behind it? It was a government body known as the Council on Environmental Quality; or more precisely a government “task force”  with the mouth-filling name of the Task Force on Land Use and Urban Growth of the Citizens Advisory Committee on Environmental Quality. According to the New York times this was an advisory committee to President Nixon and the Council on Environmental Quality. President Nixon? The Republican President Nixon? That’s what it says in the Times and we have no basis for questioning that statement. The bottom line of that “task force’s” conclusion was captured by the first paragraph of the Times story:

“A federal task force on land use said today that henceforth ‘development rights’ on private property must be regarded as resting with the community rather than with property owners.”

It doesn’t get any plainer than that, does it? It was a plain manifestation of that old line, “what’s yours is mine,” wasn’t it. So how come these guys thought they could get away with it, and confiscate the most valuable attribute of private property: the right of user? We don’t know what was on their minds, but it seems a pretty safe surmise that they didn’t expect to be impoverished by this radical change in American property law.

We could go on, but we already said what needed to be said, except for giving you the roll of these folks.

Chairing the “task force” was Laurance Rockefeller, “prominent New York conservationist.” Others included:

Henry L. Diamond,  “New York State environmental head,”

Dr. Pail Ylvisaker, Harvard Graduate School of Education

John F. Collins, a professor at MIT

John R. Crowley, Chairman of the Colorado Land Use Commission,

Walter F. Hoadley, Vice President of the Bank of America,

A. Wesley Hodge, a Seattle Lawyer,

Vernon E. Jordan, Jr., executive director of the Urban League

Virginia Nugent, of the league of Women Voters

John R. Price, Jr., vice president of the Manufacturers Hanover Trust Co.,

James W. Rouse, board chairman of the Rouse Company, and

Pete Wilson, Mayor of San Diego (later Republican Governor of California).

Wow! This, folks, is not a gathering of radical left-wing revolutionaries, out to glom on to the rich folks’ property and to redistribute wealth to the poor folks — they are the rich folks! So the question virtually asks itself: what was this gaggle of fat-cat plutocrats doing leading an attack on private property rights? You can bet your bottom dollar that they weren’t expecting that their own property would be seriously diminished by an execution of this caper.

Maybe the scholars and taking mavens who are about to gather to plumb the intellectual depths of “The Taking Issue,” and the thinking of its authors, will provide us with some insights. We can’t wait.



Lowball Watch – Texas

Wow! Them Texicans sure know how to do things big! Here is a dispatch from Harris County. State v. Macy’s Retail Holdings, Inc.,  Case No. 997,839 (County Civil Court).

The case involved two properties: Macy’s (20.02 acres) and a local developer’s named NW-JCP, LP (45 acres).

Texas DOT took 11.82 acres from Macy’s (which took a substantial part of its parking), and offered $8,240,,2240. It took 1.395 acres from the developer’s 45-acre tract, for which it offered $972,208.

We don’t know yet what legal issues divided the parties, but judgment was entered as follows: $31,000,000 for Macy’s, and $32,000,000 for the developer, for a total of $63,000,000.

Trial by Jury. What Happened to It?

What does Trial by Jury Have to do With Inverse Condemnation? goes the heading to a recent post on Answer: a lot, even if courts won’t admit it.

For a change, here is our loud attaboy (and attagirl, no sexists here) on our colleagues’ current post on regarding the film “Twelve Angry Men” — a classic story of the virtues and pitfalls of trial by jury. If you haven’t seen it, do. We agree with our colleagues that trial by jury, imperfect though it may be (see People v. O.J. Simpson) is a wonderful institution that shields the rights of individuals from government abuse.

So why isn’t there a constitutional right to trial by jury in eminent domain, direct or inverse, unless a local state jurisdiction has opted by its state constitution or statute to provide one? Why no such federal right? The conventional wisdom answer to this question is that the Seventh Amendment does not create this right; it only preserves it. So, goes the shibboleth, if there was no right to trial by jury in England when the Bill of Rights was adopted over here, it can’t be “preserved” so there ain’t any. In the federal court system you don’t even get a trial by jury by statute — only by Federaal Rule of Civil Procedure 71A, which a district court can disregard and either appoint commissioners instead, or try the matter itself.

The problem with the notion is  that except for equity cases (and possibly bills of exchequer — we are not sure), trial by jury was the only form of trial known to the common law until around 1845. But don’t take our word for it. Check out the opinion of the British Court of Appeal in De Keyser’s Royal Hotel v. The King, 2 Ch. at p. 222 (1919)  decided in 1919 by the British Court of Appeal, which reviewed the history of the use of juries in eminent domain (or compulsory purchase as the Brits call it) and concluded with the unanimous consent of the parties, including the Attorney General, that in the 18th century  compulsory purchase valuation cases were tried to juries in Britain.

You don’t believe us? Then check out the highly regarded treatise, Orgel’s Valuation Under Eminent Domain, Vol. 2, Sec. 25, pp. 268-271 (Michie Co. 1953) for the straight story on that subject, which informs us that juries tried compulsory purchase cases in England until after World War I, when trial by jury in compulsory purchase cases was abolished by the Acquisition of Land (Assessment of Compensation) Act of  1919.

Be that as it may,  if you are reluctant to take our (and Orgel’s) word for it, tell us: What do you suppose happened in Merry Old England when the promoter and the property owner could not agree on a price? Did they go out in the public square and duke it out, thereby disturbing the Kin’s peace? We don’t think so.

But it’s worse than that. In the City of Monterey v. Del Monte Dunes case, SCOTUS solemnly informed us that in an action for an uncompensated taking under 42 U.S.C. Section 1983, the owner is entitled to a trial by jury as to fact-bound issues. So how come, there aren’t any reported post-Del Monte Dunes cases in which a property owners were actually afforded a trial by jury? We don’t know of any? Do you?

So to go back to the beginning of this post, we join our colleagues in holding a highly favorable view of trial by jury, including in eminent domain cases. The only problem is that a funny thing happened to this cherished right on the way through the federal forum: It plumb vanished without a trace.

Virginia — Giving Back What You Shouldn’t have Taken.

We assume that you have heard about that Virginia case, in which the Virginia Supreme Court found a taking for redevelopment illegal and ordered judgment in favor of the property owner. PKO Ventures v. Norfolk Redevelopment Agency — Click here. However, we hear that in that case the condemnor took possession of the subject property before final judgment, so now it has to give the property back to its rightful owner. That ought to be fun, and we wish the owner’s counsel much mirth on that one.

We know because back in the olden days we were involved in a case in which land was taken by a school district. Judgment was entered but was reversed by the California Supreme Court because of aggravated misconduct of condemnor’s trial counsel.  Garden Grove School District v. Hendler, 63 Cal. 2d 141 (1965). It was actually a funny story. Ha, ha! While the case was up on appeal, the school district  took possession of the subject property (a cattle feed lot) and built a school on it. To top things off the client died, so his son took charge of his estate, and . . . As he put it in a frantic telephone call to us after we won a reversal in the supreme court, “Hey guys. I’m here where I’m supposed to be, but can’t find my father’s feed lot! There is a school on it.” That set off some more frantic activity on his and our part whereupon we realized that the district had taken possession of the property illegally. Hoo boy! So when the Cal Supreme Court sent the matter back to the trial court for retrial sans misconduct, everybody realized that the district had taken the subject property in violation of the law,* and had to give it back. But it couldn’t because by then there was an operating school there. What to do? For a moment or two your faithful servant toyed with the idea of having the sheriff evict those folks, but we couldn’t do that to the kids.

As we recall, the District had to pay rent until it could take possession lawfully, meaning after trial and a new judgment. Fun was had, and even the judge got into the spirit of things and got a chuckle out of it.


*       At that time quick-take was permitted in California only for reservoirs and rights-of-way, and a school is neither of these.


Why Wasn’t the Condemnor Sanctioned in that Missouri Case?

There is a bit of a foo-foo going on line about a new Missouri case, St. Louis Cnty v River Bend Estates Homeowners’ Ass’n, in which that state’s supreme court upheld and applied a statute providing that condemnees whose family has owned the subject property for at least 150 years are to be paid a bonus, over and above fair market value. So what could be wrong with that, you ask. Haven’t the courts, including SCOTUS been hocking us for a century or so that they (the courts, that is) only decide the constitutional minimum that forms the constitutionally required “just compensation,” and that it is up to the legislature to be more generous than that, if it is so inclined. So if you think that the judicially-set constitutional minimum is too penurious, say the courts, you should go supplicate the legislature to change the law. But when you do that and the legislature responds favorably, you can count on some city hall type to march into court and utter some absurd semblance of an argument to the effect that when the legislature did this — i.e., did what the courts said it could do, it acted unconstitutionally.

SCOTUS dealt with that intellectual crap way back in the 1920s in the Joslin Mfg Co. case in which it explained that when a court sets compensability rules, it only sets the constitutional minimum, i.e., the floor, not the ceiling of compensation, and the legislature is free to legislate a level of compensation that is higher than that minimum. So you’d think that people who can read would know that. But no, in over 40 years of eminent domain practice we don’t recall any condemnors’ lawyers who would admit to knowing that rule. Yet they have the chutzpa to also argue in court that if the property owners don’t like the prevailing, judicially-created rules of compensability, they should take their plea to the legislature.

We were once involved in a case in which, after the California legislature made business goodwill compensable by statute in 1976, our opposing city attorney filed a petition in the court of appeal, seeking a writ of mandate, in which he had the chutzpa to argue that the statute was unconstitutional because it was — are you ready? — a “gift of public funds.” Needless to say, it didn’t fly and the city screamed bloody murder when it was asked to pay court costs after it lost. That was some 37 years ago, but some of these guys keep flogging that dead horse.

Bottom line: This is not just a rule of eminent domain law; it’s a generally applicable rule of constitutional law applicable in all cases. Thus, as any criminal practitioner knows (or ought to know) state courts are free to formulate procedural or substantive rules of criminal law that are more liberal to the accused than are federal constitutional rules. Why would a rule favoring bad-guy criminals not also favor good-guy citizens who haven’s done anything wrong and are not even accused of doing it. Shouldn’t they be treated with the same degree of fairness?

Mind you, we have nothing against a lawyer standing up and candidly arguing that the court ought to change judge-made law in favor of his client, or strike down a rule as unconstitutional. We have done it a number of times, sometimes even successfully. But arguing to the court that the law is what it plainly isn’t, is a whole other thing.

Arendt, The Holocaust and Inverse Condemnation NOT Revisited

As you may have noticed, our friend Robert Thomas and your faithful servant have had a bit of a dustup on our respective blogs. It had to do with his characterization of a new film about Hanna Arendt, a lady who made a name for herself by writing a book whose thesis was that Adolf Eichmann, the master logistics type of the Holocaust, who was instrumental in  killing millions of people, was not so much evil as he was a banal bureaucrat, who aside from killing millions was a pretty boring sort of fellow. What we should have done was to characterize the Arendt book and film with a hearty “Horsepuckey!” and let it go at that. But we faced the problem that these days many people, especially the younger ones may not know Eichmann from Eisenhower, so we felt we had to say something substantive to make it clear to our readership that Arendt may be something less than wonderful. These days, you gotta do cultural missionary work like that regularly.*

So we did write about it instead, and thereby we precipitated and exchange with Thomas that is on line now, and that you should read for yourself if you have nothing better to do with your time. Or you can take our suggestion to heart, call the Arendt propaganda “Horsepuckey!” and in your spare time go barbeque some hamburgers in the back yard which — it seems to us — will be time better spent. But if you want to know what the fuss is about from a third party that has no dog in Kanner-Thomas contretemps, read an article by Sol Stern in the monthly magazine COMMENTARY of September 2013, at p. 43, entitled The Lies of Hannah Arendt. The title should give you the idea.

Further your affiant sayeth naught.


*   You think we’re kidding? Then get this: the other day we spoke with a brilliant, accomplished young woman, a magna cum laude college graduate, who blandly informed us that she never heard of the movie My Fair Lady,  or of George Bernard Shaw’s play Pygmalion on which it was based, or, come to think of it, of Shaw himself. None of which has anything to do with eminent domain either, but is stuff that should enlighten you as to the sort of  society in which you live.

Lowball Watch — California

The Los Angeles Daily Journal reports that a case just settled in Orange County, California. (Katie Lucia, Eminent Domain Settlement May be State’s Largest This Year, Sep. 10, 2013) The city filed an eminent domain action and took a 13-acre parcel for an 86-acre park. The problem was that the appraisers for the city of Lake Forest did not assign any value for severance damages to the mineral deposits (sand and gravel) under the subject land, so the city deposited $7.4 million, and just before trial lowered its offer to 6.6 million.

The problem, according to the city, was the cost of developing the land after removal of the minerals. The city at first contended that the cost of mineral removal and of redeveloping the land after that would exceed their value. But shortly before the case was to go trial, the city was born again, and settled the case for $15.4 million.

Today Is September 11th

All we can add to that headline is that some years ago, when we visited the site of 9/11 in downtown Manhattan, there was a small blackboard on the fence surrounding the hole in the ground and on it — among the various sad and sentimental messages — someone had written with a fat felt-tip pen: “Never forget. Never forgive.”

As the Weekly Standard points out, in a couple of years kids entering high school will have no memory of 9/11. So some one has to remember because such memories make up the fabric  of a society.

What the Hell Does the Holocaust Have to do With Inverse Condemnation?

There is a concept in language known colloquially as “dragging in from left field” — a process whereby stuff that has absolutely nothing to do with the subject at hand is brought into the conversation in order to make the speaker’s or writer’s extraneous point of some sort. Case in point: a post on about — are you ready? — the moral implications of the Holocaust, in which our friend Robert Thomas abandons his usual able discourse on takings of property, and along with an associate, presents us with a defense of Hannah Arendt’s writings about the Holocaust, and of “Arendt,” a recent film made about her.* Arendt’s writings are not what you might call the usual fare among condemnation lawyers, and Thomas’ flimsy excuse for dragging her in is that her writing in this case, even though not about law, may be of interest to lawyers in connection with a film festival on that subect being planned in Hawaii. Maybe. We know lots of things that though not about law are of interest to lawyers, including single malt Scotch and Porsche Carreras (but not together). So what? We don’t see how any of that would be of interest in a discussion of inverse — or even direct — condemnation. And neither is Eichmann. But we are getting ahead of ourselves, so we need to back up a tad.

First, a confession up front. It so happens that your faithful servant went through WW II the hard way, and got to see the Holocaust with the original cast, as it were, so he is a lot more judgmental about it than Mr. Thomas and his co-author, Ms. Bethany C. K. Ace, who manage to drag in inter alia the oh-so difficult legal question of whether the Nuremberg trials of the Nazis were, er, legal or merely “victor’s justice,” and whether Israel had jurisdiction to try Eichman. Understandably, your servant is a lot less tolerant about these matters and is unimpressed by armchair pontificators who — if they were alive at all — spent WW II being protected by the U.S. Army, Navy, Marines, the Air Corps, the Coast Guard, the Merchant Marine, WACS, SPARS, WRENS and all those other brave folks who laid their lives on the line and saw to it that no bombs fell on the fruited plain of the United States whose population — except of course of those who served in the aforementioned armed forces — got to live in safety and comfort (even if, oh dear, sugar was rationed), thus enabling them to go on and eventually engage in the sort of armchair moralizing, displayed in the Roberts caper.

While tempted to draw on our WW II experiences and launch into a moral refutation of this whitewash job (that goes something like this: Eichmann wasn’t really all that evil, you see — just a banal bureaucrat), we won’t do that because doing so would only be playing Thomas’ and Ace’s game which we have no intention of doing. However, we would like to see them do their fastidious moralizing, not on the high level of abstraction on which they ponder the soundness of Arendt’s notion of “banality of evil,” but rather on a much lower level of abstraction and tell us instead what they propose to do legally about those who amused themselves during the war by bashing babies’ skulls against a wall, or picking  them up with pitchforks and tossing them into a fire (see Jan Gross’ book, “Neighbors”). Anybody got “jurisdiction” over that? Has anybody tried to exercise it?

Anyway, to get back to the point of this post, horrible as these things may have been, they have nothing to do with takings of property (no, Hermann Goering’s theft of artworks doesn’t count), and if Thomas and Ace, writing in a blog on inverse condemnation,  can’t keep their hands off this subject and must express their moral fastidiousness, better they should express it by moralizing on the side of the victims rather than probing the “banality” of the perpetrators, and defending Arendt’s misrepresentations in doing so. So if you want to read about that, do read an article by Sol Stern, entitled The Lies of “Hanna Arendt,” COMMENTARY magazine, September, 2013, at p. 43 (“A film [that] distorts history to lionize a heroine who was no heroine.” That pretty much says it.)

One more thing. How did that Arendt film make it into the Hawaiian film festival about lawyers? We think we know, and on the basis of what we were told by an insider, it had nothing do with moral fastidiousness or indeed with Eichmann, or for that matter with films about law and lawyers. While we choose to keep his name confidential (but we do have it in writing), here is what he said about the Hawaii lawyers sponsoring the Arendt movie: “The Museum required us to show its  for its premiere in Hawaii.” “Required”? Oh yes, where have we heard that one before: I vas only following orders.

So as you read that piece about Arendt’ moral fastidiousness, presented in the midst of an inverse condemnation blog, take it with a grain of salt. Hawaiian red sea salt may suit the occasion.



*     In case Arendt and  the Holocaust are not your thing — and who could blame you if they aren’t? — we should note that Hannah Arendt went to Jerusalem to attend Adolf Eichmann’s trial, wrote about it for the New Yorker and later transformed her writings into a book entitled “Eichmann in Jerusalem” in which she coined the phrase “The Banality of Evil.” There she floated what turned out to be the successfully peddled thesis that Eichmann was not really an evil person but rather a sort of nerdy bureaucratic nebbish who was keeping his records and was more concerned with train schedules than the mass murders he was committing. We’ll let you make your own moral judgment as to whether that rings true, given what Eichmann actually accomplished, and refrain from noting that by that reasoning Hitler was pretty much a nebbish too: he killed nobody, and just sat in the Reichschancellery (with side trips to Berchtesgaden) making nutty speeches and giving orders so he could later raise the defense of  “I vas only giving orders.” Banal?

Helping the Bear, Or “The Taking Issue” Was a Failed Propaganda Screed. So Why Is It Being Celebrated?

Once upon a time, a farmer went out to do his morning chores when he was set upon by a vicious bear. He realized that he couldn’t outrun the bear, so he started running around a pile of farm implements in the middle of the yard, hoping to stay ahead of the bear’s claws.

But as he rounded the pile of implements, he realized that the door to his farmhouse was open and his wife was standing in the doorway, taking it all in. So he cried out: “Woman! Don’t just stand there. Get me some help!” To which she replied: “It wouldn’t be fair. Ain’t nobody helpin’ the bear.”

In case you aren’t aware of it, Touro Law School in New York is about to celebrate the 40th anniversary of a book called “The Taking Issue” as well as its co-author Fred Bosselman who died recently. So why is this of interest? Because “The Taking Issue” was a propagandistic screed, published and supported by the government and funded by the Ford Foundation. Its avowed purpose was to help the government in getting the U.S. Supreme Court to overrule Pennsylvania Coal Co. v. Mahon, and thus do away with the principal constitutional obstacle to government confiscation of property.

In case your memory runneth not that far back, “The Taking Issue” was published in 1973 by the Government Printing Office which subsidized it with a $2.95 selling price. Its sponsor (read financier) was the federal Council on Environmental Quality. Fred Bosselman, David Callies and John Banta, who were then working for the Chicago law firm of Ross, Hardies, O’Keefe, Babcock & Parsons (now Ross & Hardies), where its authors were the firm’s land-use mavens. “The Taking  Issue” purported to be a historical examination of the taking doctrine, but it was nothing of the sort. It was an attack on that doctrine, particularly on Justice Holmes’ opinion in Pennsylvania Coal Co. v. Mahon, in which he held in an 8 to 1 opinion that property regulation that goes too far ceases to be regulation (i.e., a set of limits on the owner’s use of his property) and becomes a de facto taking of it (which occurs when regulation becomes so severe that the property’s ostensible owner is deprived of his ability to put his land to reasonable, economically viable uses, and is thereby stripped of its utility and value, while still being compelled to pay taxes and bear all the other burdens and liabilities of property ownership). Which means that, even though there is no physical invasion of the regulated owner’s land and his title is ostensibly left intact, the property may as well have been taken to the moon for all the good it does the owner now. Back in the olden days, when New York courts actually retained a modicum of respect for private property, the New York Court of Appeals once observed that outright confiscation would be better than a regulatory taking, because at least it would free the owner of his obligation to pay taxes and bear other costs and liabilities of property ownership. But that was then; this is now.

Here in California, where your faithful servant makes his domicile, “property” is defined as “the right of  one or more persons to possess and use it to the exclusion of others.” Cal. Civil Code Sec. 654, emphasis added. So it follows that if you can’t use the land that is colloquially referred to as your property, you don’t really own it. It’s like Blackstone once put it, “for what is property if not the use thereof?” What indeed?

Unfortunately, Holmes, being a classy lawyer who was writing a U.S. Supreme Court opinion, evidently assumed that lawyers and judges relying on his opinion would know this elementary stuff, and (being a fan of brief opinions) he did not explain those elementary, first-year law school  matters, like what is ownership, which turned out to be a mistake. But as all reasonably astute people know, the world is full of goniffs just itching to get their mitts on somebody else’s property, and to do so without paying and without going to jail. So they are ever ready to pretend that they never heard of “property” as a right rather than as a thing — for them, when it comes to takings, it’s a case of “I know it when I seize it.” No clod of dirt with which to perform livery of seisin — no property. That is why it was necessary to promulgate the Fifth Amendment (Thou shalt not take what isn’t yours without paying) and the  Eighth Commandment (Thou shalt not steal), and for Justice Holmes to bring these ideas into the 20th century.

And it came to pass that in the Pennsylvania Coal case the state of Pennsylvania forbade the extraction of minerals if that would cause subsidence of the surface of inhabited land. In itself that may have sounded like an innocuous police power measure, but the wrinkle here was that the coal company and the owners of the land overlying it had made a deal whereby the surface owners expressly conveyed to the coal company and the coal company expressly retained the right to mine coal even if that caused subsidence of the surface land and any structures built on it. So Holmes could have simply enforced the parties’ contract and that would have taken care of the problem. But instead he gave us the “too far” shtick without telling us what “too far” is, and without telling us how intrusive a regulation must be to cross the line into taking territory (He must have thought that it wasn’t necessary because in this case the restriction went as far as it could: a prohibition on mineral extraction de facto takes the minerals). So the Pennsylvania Coal opinion made clear that when the government “regulation” goes so far as to deprive the land’s owner of the usual benefits and indicia of property ownership, that’s “too far.”

And so, the law thus provided a measure of protection of land owners from the aforementioned goniffs and things went along until environmentalism came upon the scene, and the self-appointed saviors of field, stream and endangered kangaroo rats decided that their cause was more important than the constitution, and they began to argue that Pennsylvania Coal notwithstanding, severe land use regulation should be implemented and if the land owners of affected land lost their right of use as a result, tough — they would not receive the “just compensation” promised by the Fifth Amendment. That’s easy to say, but being smart, they understood that convincing the U.S. Supreme Court to say it would also be tough. So they launched a campaign to get Pennsylvania Coal overruled, and “The Taking Issue” was conceived of and written to serve as the big gun — the Big Bertha — of this campaign. We could go on for a bit, but to disclose the end of this story, the Supreme Court refused to do so in the Keystone Bituminous Coal Assn. v. De Benedictis case, and Pennsylvania Coal remains good albeit somewhat battered law.

That development left “The Taking Issue” as an anachronism that never accomplished it intended purpose of doing away with the Taking Clause of the Fifth Amendment. But its contents made clear its intention was to subvert private property rights, get the Supreme Court to overrule Pennsylvania Coal, and  to give us something that more resembled the British Socialist Town and Country Planning Act of 1947 than the American constitutional system. At least when the Brits tried to subvert their traditional property system* they did it candidly by an Act of Parliament, not by sneaking it in by pretending merely to be “interpreting” a constitutional guarantee out of existence. The authors made no bones that what they were about was to enlist on the side of an overreaching government against the constitutional rights of the citizen:

“If this book seems technical and detailed, it is because it is designed to assist government officials and attorneys who seek to fashion solutions to environmental problems.” The Taking Issue, at p. iii

And here we didn’t know that the government needed help when it set out to screw its citizens out of their constitutional rights. What’ll they think of next?

Make no mistake. We are/were acquainted with two of the three authors of “The Taking Issue” (Bosselman and Callies) and we always thought they were bright, knowledgeable folks. But that was and is no guarantee that their smarts would not on occasion be put to unfortunate uses. Of course, we don’t know what the various speakers at the Touro seminar will have to say about “The Taking Issue” from a 40 year perspective, and what the good-guy speakers will say about it, so we will abide the event, as old court opinions used to say. But we thought our readers should know about these things because 40 years is a long time, and there must be a whole new generation of youngsters out there that is unacquainted with this misbegotten caper, and may not fully realize that those Touro folks may be inviting them to help out the bear. As for us, we’re on the farmer’s side.



*     If you are interested in the Brits messing around with this area of the law, we recommend Arthur Shenfield, The Mirage of Social Land Value: Lessons from the British Experience, The Appraisal Journal, October 1976, at p. 523. It’s a good read that will tell you what you need to know.