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Friday, August 16, 2013

Bill Fischel on Koontz: Why Federalism should limit enforcement of Takings Doctrine

Bill Fischel, the dean of takings scholars, posted a thoughtful comment on Koontz in response to my own post. I've reproduced an excerpt from Bill's comment below, just to highlight Bill's central point: Even important individual rights like the right to compensation for takings of private property, should be qualified by norms of federalism. After the jump, I'll provide some backup defense of this position. But, first, here's an excerpt from Bill's comment on Koontz:

"I agree with Rick that this should mostly be a state law issue and that the Court's remedy-less decision will prevent much additional damage to the development process. After all, Loretto has not stopped the telecom industry from locating its bread-box-size facilities where it needs them. The sociological question is why the Court would want to stir this particular pot. My guess is they have conceded that they cannot develop a substantive rule about regulatory takings other than "no [reasonable?] economic use" of Lucas and the potpourri of Penn Central. But they still look down at the states and see stuff they don't like, and we shouldn't like it, either. It is possible that the Coy Koontzes were being jerked around by the water district guys. But its also possible that the jerks were the Koontzes, sitting on their wet, low-value property for years and hoping to get a windfall out of the process. The fact is you just cannot tell from the distance to the controversy at which judges and scholars usually sit. It was actually kind of weird to have US Supreme Court Justices recite the kind of facts I used to write on the Hanover zoning board. At least we had some chance of figuring out which party (if any) was trying to game us. Hayekian “local knowledge” is not perfect, but it usually beats the view from Olympus.

In other words, the right to private property is important, but the first line of defense for such rights is appropriately subnational government, with federal courts playing a distinctly minor role, intervening only in the extreme cases of obvious majoritarian exploitation. Why do Bill and I believe that such deference to subnational governments is important even when fundamental national rights are at stake? Letting Bill speak for himself, here are my thoughts below.

The problem is that many national rights involve a stew of messy inquiries that can loosely be lumped under the heading of "policy-making": Although disguised as absolute and simple maxims of justice ("...nor shall private property be taken for public use, without just compensation"), such simple exhortations can be implemented only through complex factual findings and sensitive balancing of controversial policies. Federal judges lack the training, staff, and institutional legitimacy for settling such questions in a manner that will leave parties and onlookers feeling that justice has been done. At best, they implement these vague norms with bright-line doctrines that under- and over-enforce the relevant norms. At worst, they take the opportunity presented by mushy balancing rhetoric and run with it, filling the casebooks with their ad hoc views of what is "reasonable," heavily slanted in favor of their sociological caste (middle-aged, relatively wealthy, mostly white, highly educated, with a blandly "establishmentarian" view of politics typical of someone acceptable to the median U.S. Senator on the Judiciary Committee). The "view from Olympus" (as Bill felicitously puts it) is not a reliable picture of the world.

This does not mean that federal courts should never monitor and limit subnational governments. But those interventions should be constrained by meta-norms of judicial review that recognize the institutional limits of the federal judiciary. Put simply, bring out the big guns of the federal courts only when the collateral damage of such clumsy artillery is outweighed by the exploitative tendencies of subnational governments. As Bill notes, the hallmark of the sort of "extortion" that Nollan-Dolan tries to prevent is majoritarian ganging up against isolated landowners who are trying to develop their land in precisely the same way as their neighbors. Absent fairly obvious singling out of such landowners, there is no reason to believe that the ham-handed efforts of the federal judges to define "extortion" and "property" will do more good than harm.

Given that the Florida legislature has enacted the Bert A. Harris Act -- one of the more potent protections for private landowners, used frequently in Florida to cow local governments that engage in "extortionate" behavior -- I am inclined to doubt that federal judicial intervention was called for. More generally, Koontz's broadening of the definition of the conditions sufficient to trigger the Nollan-Dolan inquiry invites federal judges to involved in the nitty-gritty of land-use decision-making far beyond their capacity to do so persuasively and intelligently.

I am sure that the federal judges will decline this invitation, and Koontz gives them plenty of remedial opportunities to do so. The important point is that we should not let the glittering, abstract, and absolutist rhetoric of federal rights fool us into thinking that the underlying doctrines being enforced are the sorts of rules that normally should or will be implemented by federal judges. As a normative and predictive matter, federal takings doctrine always will be a minor sideshow in subnational landuse law -- and a good thing, too. Of course, private property is protected by a fundamental federal right. But subnational official normally outperform federal judges in implementing the right, because the costs of exploitation inflicted by the former is outweighed by the costs of blundering doctrinal calcification inflicted by the latter.

Posted by Rick Hills on August 16, 2013 at 12:50 PM | Permalink


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Hi Damien -- You had made this point in response to my earlier post on Koontz, but I think that the argument rests on a confusion between judicial supremacy and constitutional supremacy. San Remo Hotel expressly rejected your premise that "the federal courts are meant to be forums where such rights are vindicated." Now, you might not like San Remo Hotel -- but you'll need to make an argument, not merely an assertion, to persuade anyone else.

Yes, of course, constitutional rights are supreme over state law -- but who is to decide the content of those rights? You assume away this question by moving from the idea that, because the Constitution protects a right, therefore it naturally follows that federal judges must be the supreme expositors of what that right means.

As you know, it is a staple theme of 1L constitutional law that constitutional supremacy does not entail judicial supremacy. The courts' role in construing the constitution varies subtly by context, from nil (in pure political questions) to modest (the so-called "rational basis" test -- really a mini-political question doctrine), to robust. There are aspects of the Constitution that the courts leave to other actors to interpret -- to Congress, to juries (think of Miller v. California's "community standards" prong), to Presidents, and, yes, to subnational officials. If you think that federalism does not matter in takings doctrine, then you have not been paying attention: Kelo, San Remo, and other decisions routinely invoke the importance of subnational power to limit the scope of the 14th Amendment's incorporation of the just compensation clause.

Moreover, your offhand assertion that biggest threat to individual rights always comes from majoritarian rather than minoritarian institutions needs a little defense. In the 18th century, the standing assumption was that judges were NOT trustworthy expositors of the Constitution: Colonial assemblies, Parliament, and state legislatures were all deemed to be more reliable by Whigs in light of the experience with egregiously unjust Stuart judges like Scroggs and Jeffreys. As Jeremy Waldron has argued at length, there is no reason to believe that judges systematically will always outperform legislatures in defining and enforcing rights: The question depends on whether one believes that the risks of majoritarian factionalism outweigh the risks of minoritarian factionalism. Try telling farmers in China that populism rather than bureaucratic greed is the biggest threat to their access to private farmland. Try telling the demonstrators in Moscow that popular democracy rather than tyranny of the siloviki is the biggest danger to private freedom. The claim that state officials are less solicitous of private property rights than federal judges is just patently false, as the Bert J. Harris Act and other examples that you ignore indicate.

Sure, federalism is a means to the end of protecting individual rights. But so is judicial review. You need to defend rather than assume the position that the latter magically outperforms the former.

Posted by: Rick Hills | Aug 17, 2013 8:58:24 AM

It seems to me that the federalism discussion is a red herring and simply confuses the relevant point. If the Constitution protects a right, and the federal courts are meant to be forums where such rights can be vindicated, then why should we be disturbed by the federal judicial vindication of those rights? Only, of course, if there are some federal rights (dare I say property rights?) that we're not particularly crazy about. (As an aside, I would suggest that "subnational officials" outperform federal judges only in the sense that they tend to be less solicitous of federal rights than federal judges). Federalism is not an end in itself but a means (like separation of powers and checks and balances) for securing individual liberty.

Posted by: Damien Schiff | Aug 16, 2013 7:41:54 PM

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