Monthly Archives: February 2016

Give Credit to Judge Kozinski, the Prophet

As we feared, following Justice Scalia’s untimely death, we found ourselves knee-deep in hypocritical bullshit going on about the asserted impropriety of the Republican Senate contemplating the blocking of the appointment of a replacement for Justice Scalia by a lame-duck, controversial President in an election year. As if that never happened before. The same politicians who in the past insisted that an outgoing president in his final (election) year should not appoint Supreme Court Justices, are now insisting that, au contraire, doing so is the President’s sacred duty under the Constitution which  says no such thing.

But all this should not come as a surprise to thinking people with a minimal knowledge of recent history. If you don’t think so, join me in a little history lesson in which we examine how it all came about.

It was President Franklin Delano Roosevelt who planted the seed from which today’s judicial appointment mess grew — no rational debate about that. After the Supreme Court of the 1930s rejected several New Deal measures as unconstitutional, Roosevelt got tough and announced that if the Justices did not buckle under to his administration’s demands he would get legislation passed by a compliant Congress, allowing him to appoint a half-dozen additional Justices — his kind of Justices — thus packing the court with people who would now find New Deal legislation acceptable. And in something less than a judicial profile in courage, the court’s members buckled under and in the infamous “switch in time that saved nine,” began approving New Deal legislation. And there went the status of the judiciary as an independent, co-equal branch of government participating actively in the checks and balances system. In time, it also gave  rise to a whole new legislative attitude, whereby constitutional objections to new legislation, made during legislative deliberations, are brushed aside as matters that should be decided by the courts. The courts obliged and took on the legislators’ job. And there went the authority of the legislature as an independent co-equal branch of government, because legislators could now legitimately pass the buck to judges and let them make tough decisions without having to face the voters.

For a great example, see the Oakland Raiders case. There the mighty, activist California Supreme Court pronounced itself unable to review on constitutional grounds a city’s decision to seize the NFL franchise of the Oakland Raiders, in order to turn it over to others who would comply with the city’s demand that they give up their constitutional right to travel, and refrain from moving to another venue. Asked the mighty, activist California Supreme Court in its original opinion: “Who are we to . . .” tell the city what the constitutional term “public use” means?

There are other examples in the law of eminent domain. There is a rule in it holding that when the legislature (or a non-legislative, unelected body to which the power of eminent domain has been delegated) decides that a proposed taking is for a “public use,” that event renders the decision “well nigh conclusive,” and not subject to meaningful judicial review. Neither is the statutorily required public necessity for the taking (no necessity whatever need be shown in federal law– Bragg v. Weaver). In California, statutorily required findings of necessity are reviewable but only in cases of bribery or “gross abuse of discretion.” Until 1976, it was not even subject to that sub-minimal level of review — it was OK with our courts if the resolution was procured by fraud, bad faith and abuse of discretion. (People v. Chevalier).

Condemning agencies, on the other hand, take the not-unreasonable position that since “public use” is a constitutional term, it, along with other constitutional matters, is properly  something to be finally decided by the courts. Thus, the pertinent law reduced itself to a farcical game in which the legislature and the courts defer to each other, like the characters in the old “Alfonse and Gaston” comic strip, while serious constitutional issues go unanalyzed.

Then, on the broader constitutional field, along came the Warren Court whose supporters informed us with a straight face that, alas, the legislative branch of government had screwed up when it failed to keep the law in tune with modern reality as seen by them, so there was nothing for the judiciary to do, but to ignore the separation-of-powers doctrine and take up law-making big time, in order to give the legislators a helping hand, sometimes whether they wanted it or not. Nobody, as we recall, argued that by the same token the legislature should be able to try cases to lend a hand with litigation, in cases of judicial failures.

You know the rest. By degrees, to a large extent, courts became law-making institutions, constitutionalizing policies that judges found agreeable and hiding behind precedents of their own making when they did not feel like it. Thus, in our field — land-use — judges developed something that well-known land-use treatise author, Norman Williams aptly termed “gastronomic jurisprudence” — whatever feels right in a judge’s gut. And so, federal judges decide all sorts of constitutional issues arising from local land-use enactments, but when it comes to regulatory taking cases many of them disclaim any intention of becoming “zoning muftis” in doing so.

And if you think I exaggerate, read the passage in Penn Central Transp. Co. v. City of New York, where the U.S. Supreme Court confessed in haec verba that it was “simply unable” to formulate any reliable rules of law in inverse takings cases, and would instead decide liability, if any, on a case-by-case basis, by examining the facts of each case presented to it, thereby substituting individual judicial factual determinations for a rule of law. Or, as Judge Oakes put it, the court gave us a legal regime in which conflicting precedents [are] simply available as makeweights that may fit preexisting  value judgments. 56 Wash L.Rev. at 613. And our own California Supreme Court told us in the HFH case that court decisions holding that the challenged regulations are takings or legitimate exercises of the police power, are merely the courts’ shorthand way of labeling the results. (15 Cal.3d at 522).

So with a judicial atmosphere like that, not only in takings law but in other fields as well, we should not be surprised when citizens eventually decide that what comes out of the marble palace in Washington, is actually more like a choice of preferred policies than formulating reasoned rules of law, binding in future cases. Thus the wretched subject of reverse discrimination (starting with the De Funis case) has been in a state of continuous litigation for decades with no one able to tell what is and what isn’t improper reverse discrimination. This gives rise to a system in which, in the words of Justice Scalia, a judge “begins to resemble a finder of fact more than a determiner of law,” which in the end is a “concession of defeat — an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” Thus, “equality of treatment is difficult to demonstrate and, in a multi-tiered judicial system, impossible to achieve,[*] predictability is destroyed, judicial arbitrariness is facilitated, [and] judicial courage is impaired.”56 U.Chi. L. Rev. at 1187.

But, you say, what does all that have to do with Judge Alex Kozinski whose name graces the title of this post. Only this. A while back he wisely admonished his fellow judges that  “When we act act like politicians, we will be treated like politicians.” As the current kerfuffle over Justice Scalia’s replacement makes clear, Kozinski was right. We now face an unabashedly political battle over filling the Supreme Court vacancy based on partisan perceptions of the substantive views of prospective candidates being advanced for filling Scalia’s seat. And just you wait until the Senate confirmation hearings! For some reason we have a hunch that the word “circus” won’t do them justice. But what do we know?

This is not to say that we pine for some nonexistent “good old days,” when judges were selected from a body of impartial scholars. Partisanship was always an ingredient of presidential selection of judges. It’s the nature of the beast. But the older judicial selection decisions were not as openly or as crudely partisan,  or so openly insistent on elevating reliably partisan individuals to the bench as they are now.

Bottom line: Judge Kozinski’s assessment was sound, and his prophecy came to pass. Judges have been making policy big time, just as politicians do in the elected branches of government. So judicial candidates should not be surprised when the criteria for their appointments are being treated as mere politics — with not just politicians but also the people demanding that if those black-robed folks on high are going to rule them, they should have a say in their rulers’ selection. That, goes their justification, would only be democracy, a process on which this country was founded, and for which our soldiers have bled and died all over the world. Of course, for all its democratic virtues, that would be a lousy way to select nominally impartial judges, but if you insist on rejecting the traditional criterion of judicial impartiality — to the extent it is achievable — that’s what you will get.

So be careful what you strive for because you may get it, and when you do, it may not be what you expected. It may turn out to be the likes of Donald Trump. Or worse.


*     For a perfect example, compare Justice O’Connor’s right-to-take eminent domain decisions in Hawaii Housing Authority v. Midkiff with her dissent in the Kelo case. Now tell us how to reconcile these two opinions. Good luck!


Kelo — Once More With Feeling


We just ran across a law review article (a tip of our hat to George Mason lawprof Ilya Somin) that analyzes the wretched Kelo case again — this time giving proper emphasis to the dissent of Justice Thomas whose deserving views have been overshadowed among members of the commentariat by the more forceful dissent of Justice O’Connor. So if you are still interested in Kelo — and who with an ounce of mavenhood in these matters isn’t? — we recommend you read Carol Necole Rose, Justice Thomas’s Kelo Dissent: The Perilous and Political Nature of the Public Purpose, 23 Geo. Mason L. Rev. 297 (2016). A good read, that. It tells us much about the   factual background of this controversial case, even if it fails to give proper emphasis to the fiscal disaster that redevelopment project turned out to be.

Our kudos to Professor Rose for this article and for choosing to include in her conclusion a quote of Justice Scalia from another case, that captures the essence of Kelo nicely.

“As Justice Scalia once said, some issues ‘come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.’ And the same is true of Kelo — the wolf comes as a wolf, and it comes as a wolf to prey on the most vulnerable and least politically powerful groups.” (Citations omitted).

The Pope and His Fence Thing

Once again, events “out there” have intruded into our parochial little world of land use law and such. Behold the strange subject of border fences in general,* and the Pope’s interest therein in particular. First, it was that business of the Pope’s visit to Jordan a while back, and his swing over the West Bank, no longer occupied by Jordan which has conceded that it has no interest in that area, but is separated from Israel by a fence with walls in places, to keep Arab terrorists from sneaking across the Israeli border in order to set off bombs and commit other acts of terrorism. That fence has been quite successful and has largely interdicted terrorist activity, thus saving lives.

But the Pope didn’t like that. When he visited that area, he seemed unconcerned with the loss of Jewish lives by cross-border Arab terrorists. Instead, he made a point of pausing on the Arab side of that border fence/wall where he expressed concern over the plight of Arabs who are concededly inconvenienced when crossing the border, even if their delays and inconvenience are not all that different from the inconvenience suffered by persons having to stand in line to cross the fence that separates the U.S. from Mexico. Now, the Pope has repeated his performance more aggressively, by observing disapprovingly during his current trip to Mexico that people who would build fences rather than bridges, are inter alia not Christian, thus inspiring Donald Trump who is Presbyterian and who wants to impose strict controls on our border with Mexico, to take umbrage at this slur.

It seems clear to me that whatever your political or religious inclinations may be, the Pope was out of line on that one. Whatever the Pope’s exalted status may be among his coreligionists, who is he to be telling adherents to other religions what it is that makes them  proper adherents to their faiths? One would think that the Catholic Church has enough problems of its own without going out afield and lecturing others on the proprieties of observance of their faith.

But though important, that is not the point of this post. The point is that the world is full of border fences (of which more anon) but His Holiness has singled out just those two for his criticism. Strange. Why only these two? Why single out the two fences that are maintained by two Western liberal democracies, United States and Israel, as defensive measures while giving all the others (including some bad actors) a free pass? Strange, isn’t it?

So let’s take a moment and check out some of the other fences all over the world and see just how morally skewed have been the papal criticisms of only those two border fences  erected to interdict the inflow of illegal migrants who respectively (a) violate American law by crossing our border illegally, and (b) try to violate Israeli laws — and simple common sense — by trying to cross that border in order to engage in  murderous terror attacks. Actually, pertinent research is easy; all you need to do is go to Wikipedia where by clicking a mouse you will get a long list of border walls/fences that separate countries pretty much as does our fence on the Mexican border. You may be surprised. So here we go:

There are border fences/walls between the following countries. In no particular order, Wikipedia lists the following border fences:

Hungary-Serbia, Hungary-Austria, Bulgaria-Turkey, Belgium-Netherlands, Bangladesh-India, Afghanistan-Uzbekistan, Korea-China, China-North Korea, North Korea-Nepal and Bhutan, United Arab Emirates-Oman, Turkmenistan-Uzbekistan, Kyrgizystan-Uzbekistan, Saudi Arabia-Iraq,  Russia-Ukraine, Slovenia-Croatia, Iran-Pakistan, Austria-Slovenia, and Macedonia-Greece.

Is that all? Not on your life. We saved two of the best ones for our grand finale. Get this: Spain is also maintaining two border fences separating Spanish territories in North Africa — Melilla and Ceuta — from the rest of Africa whose inhabitants risk serious harm and death trying to climb those fences, while the Spaniards shoot rubber bullets at them. If you don’t believe us, check out this link to a photograph from the British Telegraph newspaper, showing multitudes of desperate sub-Saharan Africans trying to make it across the Melilla fence in an effort to get into Spanish occupied African territory in an effort to get a leg up on their journey to Europe.

Sub-Saharan migrants scale a metallic fence that divides Morocco and the Spanish enclave of Melilla

Sub-Saharan migrants scale a metallic fence that divides Morocco and the Spanish enclave of Melilla.


We also can’t touch on this subject without asking: What the hell are Spaniard doing occupying parts of Africa? Haven’t they heard that the days of colonialism are over? Evidently, not. Or maybe it’s another one of those free passes granted to some occupiers but not others. As George Orwell put it in his book ANIMAL FARM, all animals are equal, but some animals are more equal than others

But for some strange reason, the Pope, to the best of our knowledge has not come down morally on any of the  countries involved in these activities. Not a peep. He has reserved his disapprobation only for the United States and Israel, giving the others a moral free pass by his silence. Strange, isn’t it?

Follow up. For a New York Times take on the Pope’s involvement in politics, see Jim Yardley, Francis and Trump: Populist Leaders Preaching Diverse Messages, Feb. 19, 2016 — go to

For a sampling of N.Y. Times letters to the editor commenting on the Trump-Pope kerfuffle, go to

For a more up-to-date inventory of border fences all over the world, complete with pictures, go to


* Actually, as is the case with just about everything, there is an eminent domain angle to this. Uncle Sam has used the power of eminent domain to take land on the Mexican border to facilitate the construction of our fence. Making things worse, our fence is so located that in places it cuts off some of the American soil, leaving it on the South (Mexican) side of the divide, which pisses off the American living there mightily, and rightly so. See Richard Marosi, Some Angry Texans Are Stuck South of the Barrier, NY Times, Feb. 28, 2014 .

California Choo-Choo (Cont’d.)


We quote without comment:

 The first leg of California’s bullet train will be built in Northern California, not in Southern California as originally planned. High construction costs and political opposition were cited as primary reasons for pursuing the San Jose to Bakersfield line rather than the Fresno to Burbank section. The latest cost estimate for the 500-mile project is $64 billion. Los Angeles Times

Antonin Scalia, R.I.P.

It looks like we are about to be inundated by obituaries and opinion pieces praising or damning — as the case may be — the efforts of U.S. Supreme Court Justice Antonin “Nino” Scalia who died in his sleep at the age of 79, yesterday.

We have no intention of competing with all that, or discoursing on the subject of judicial nominations, or to refight old and not-so-old legal battles, but we do want to express our admiration for Scalia the judicial craftsman who could use the English language like no other judge that we know of.* Whatever you may want to say about the substantive content of his opinions, Scalia was never boring. His acerbic bon mots in particular were in a class by themselves. Many of them are being collected and published even as we write, and we recommend that you read them — they will brighten your day no matter which side of the argument you are on. Our own favorite came in the Florida beach case, where the issue presented was whether the rule under review constituted a judicial taking of property. The court decided that the law in question was a creation of the legislature,  so there was no need to address the issue of judicial takings. But that didn’t keep some of the other justices from discoursing on that now-moot subject at length.

Scalia thought that was unnecessary, and in a typically Scalian fashion, he dispatched that discussion by observing  that it was in the nature of the age-old inquiry of how much wood could a woodchuck chuck if a woodchuck could chuck wood. So how can you not admire a guy who could do that in a Supreme Court opinion?

We also think it proper to share with our readers a bon mot of, of all people, our mother-in-law who once observed that for an old, successful guy who accomplished much in his life, to die quietly in his sleep, is a “billionaire’s death.” True, Scalia was only 79 years old, which is not all that ancient as judges’ lives go, but as deaths go, and considering the various alternatives, it wasn’t bad at all.

R.I.P. Nino. You did one hell of a job.


* Actually, he did have a close competitor. The late Robert Gardner of the California Court of Appeal, whose acerbic and very funny opinion language was widely admired and actually inspired two law review articles, one of them entitled A Garden of Gardner. Do check it out when you have the time.


The Right to Take Is “Well Nigh Conclusive?” — Says Who?

One of the tiresome staples of right-to-take eminent domain law is the judicial assertion that a government entity’s decision to take property for what it asserts to be public use, is “well nigh conclusive.” But why, as Justice Thomas put it in his Kelo dissent, why is the government forbidden to enter a private home without good cause, without a warrant, and without judicial supervision, but it can simply bulldoze it to the ground and take title to it without due process? United States v. Dow. The court has not provided an answer to that question, even though it has held that eminent domain is not endowed with some sort of mystical “sovereign prerogative” justifying so extreme a deferential view of the issues presented by it, any more than in the case of a host of other government functions. (see Allegheny County v. Frank Mashuda Co. ).

While no reasoned and clearly articulated reason for such judicial inconsistency has been provided, what emerges from a careful reading of the case law is the notion that the exercise of the power of eminent domain is a purely legislative prerogative, so courts defer to the legislative, democratically-based wisdom. So what’s wrong with that, you ask? Two things. First, when it comes to the Constitution, courts are not so deferential to the legislature in other areas of the law enshrined in the Bill of Rights, and freely review controversies arising from them. After all, the Constitution, is supposed to be the “supreme law of the land” and state judges are bound by it “anything to the contrary in the constitutions and laws of the states to the contrary notwithstanding.” (US Const. Art 6). Second, courts refuse to so much as consider evidence-based arguments that the proposed project for which the subject property is sought to be taken by eminent domain, cannot be constructed, either for economic, physical, or even legal reasons.

OK, so this may be bad, but say the courts, that’s “the law.” But is it? Not really. While courts will tell you at the drop of a hat that takings are the prerogative of the legislature, they often aren’t. They are frequently the legal prerogative of non-legislative bodies like Highway Commissions, flood control districts, redevelopment agencies, etc.  And members of these bodies are not elected — they are typically appointed by, not the legislature, but by state governors who, last time we looked, were members of the executive, not legislative branch of government. It is those unelected appointees who make those “well-nigh conclusive” decisions which property is to be taken, how much of it, and the quality of the taken title (i.e., fee title, leasehold, easement, etc.). Oh sure, the legislature authorizes takings of land for specified purposes — like highways, redevelopment, and the like — but in almost all cases, they do not decide which parcel to take and how much of it. Those decisions are made by local engineers who are certainly not legislators.

We were reminded of all that when reading a recent article in the City Journal, The Power Authority Leviathan, Winter 2016, dealing with the doings of the New York-New Jersey Port Authority:

Established in 1921 in an effort to quell the perennial squabbling between New York and New Jersey over control of New York Harbor, the Port Authority was designed to be unaccountable to the public. Its originators, steeped in Progressive-era faith in technocratic management, envisioned an agency run by disinterested professionals, insulated from the pressures of day-to-day politics. In the 94 years since its founding, however, the Port Authority has proved anything but politically disinterested.

That puts it accurately and concisely. The Authority, and many public bodies like it, are the entities that have the final, “well-nigh conclusive” say-so when it comes to the exercise of the power of eminent domain, even if the courts babble on about the power to take being “legislative” in nature. It often isn’t and the decision-making bodies lack the essential attribute of legislatures: the citizens’ ability to hold its members accountable via the ballot box — i.e., to vote them out of office.

So here is yet another aspect of eminent domain “law” that enjoys much judicial lip service but lacks doctrinal sense.


Trump Does Not Understand Eminent Domain Law

The other day we had a comment on the Trump-Cruz contretemps over eminent domain, and you can read it here:…ent-domain-about/ Tonight, at the Republican ABC debate, he and Bush they had at it again and this time Trump made it painfully clear that he does not understand the law of eminent domain or indeed what the controversy that is roiling the country is all about.

Trump argues that eminent domain is a wonderful, necessary thing; that without it we would not have roads, public buildings etc. What he fails to understand is that the controversy over eminent domain that has the country in an uproar, deals with something entirely different. The problem is the misuse of the sovereign power of eminent domain, not for public uses as specified in the constitution, but rather for purely private endeavors — like the Poletown caper in Detroit where the city blew some $200 million to take an unoffending middle-class neighborhood in order to raze it to the ground and give the land to General Motors at a fraction of its value, so GM could build a new Cadillac plant there instead of in Ohio. So did it work out? No. The new GM plant never achieved anywhere the employment level it promised. And of course in the long run GM went bankrupt. And so did Chrysler in spite of receiving a similar deal in Detroit v. Vavro.

Trump also appears to be under the impression that condemnees get  several times the value of the taken land. If it only were so! When landowners take a condemnor to the cleaners that happens because the condemnors — as is their wont — tend to underestimate values and make lowball offers to prospective condemnees, hoping that the latter will accept the lowball offer, which they do often enough to justify the practice. For an explanation of how and why this is done by condemnors, see the discussion at 40 Loyola L.A. L. Rev. at pp. 1105-1110.

Anyway, we find it astounding that the subject of eminent domain has been raised to such prominence. There we were for the past half-century, in our little “dark corner of the law,” minding our business and handling some eminent domain cases, when — Shazam! — along came the wretched 2005 Kelo majority opinion and with it the uproar that has been with us ever since, and that now has been raised to a hotly debated issue in presidential politics. Don’t that beat all?