- The video discusses the principle that the government should not take property without compensation, which is found in the natural law and the Takings Clause of the United States Constitution.
- An older case from 1894, Lawton against Steele, is mentioned to illustrate the open-endedness of the provision in the Constitution.
- The case involved the prohibition of using fish nets to catch fish in lakes in New York state, and the Supreme Court held that it was within the state's powers to enforce this prohibition.
- The court's opinion stated that the state has considerable power to regulate the use of property in the interest of the public.
- The video raises questions about the common good and the reason for the regulation, suggesting that it may be related to protecting the fish population from extinction.

- The state officials seized and burned fishing nets in a case involving regulation of fishing activity.
- The state has the power to regulate fishing through licensing and may have an interest in conservation and controlling commercial activity.
- There is a debate about how far the state's regulatory power extends, such as whether they can destroy boats or compensate for confiscated property.
- The case illustrates the antiquity of the power of the government to regulate fishing and seize fishing instruments without compensation.
- The discussion leads to the question of whether the government can take trivial property without compensation, which is the main focus of modern cases on the Takings Clause.
- The Lawton case exemplifies the government's power to destroy nets without compensation as part of the police power.
- The case book does not accurately depict the extent of the government's power to take property without compensation.
- The Kelo case involves the use of eminent domain to seize private property for a development project.

- The city of New London used eminent domain to seize private property for a development project aimed at creating jobs and increasing tax revenues.
- Property owners sued, claiming a violation of the public use requirement of the Fifth Amendment.
- The Supreme Court ruled that the state could take the property without violating the Fifth Amendment.
- The development plan was created by a private nonprofit organization hired by the city, raising questions about delegation of authority.
- The discussion highlights the need for limits on delegation and the potential for arbitrary decision-making.
- The purpose of the plan and inclusion of private residences were the main points of contention.
- The court emphasized the importance of careful consideration and evidence in condemnation proceedings.

- The discussion revolves around the rationality and justification of using eminent domain to take private property for public use.
- The dissenters argue that there should be a rational test and reasonable certainty in the connection between the action and the public benefit.
- The plaintiffs argue that the taking of their property for private use does not benefit them or serve the common good.
- The court rejects a narrow view of public use and focuses on whether the development plan serves a public purpose.
- The court relies on the trial court's findings that the plan will have economic benefits.
- There is sympathy for the dissenters and concerns about the potential failure of the plan, as seen in the example of St. Louis.
- The court believes it is not their role to judge the success or failure of the plan, as that is for the legislature to decide.
- The court emphasizes the purpose of the plan rather than the specific mechanisms.
- The court does not feel responsible for double-checking the rationality or sense of the plan.
- There is mention of a recession and the failure of a similar plan involving Pfizer.

- The video discusses a case involving Pfizer and the use of eminent domain.
- The court's decision allowed the taking of private property for public use, but the definition of public use was not clearly defined.
- There is a distinction between public use and public purpose, with public use being more traditional and controlled by a public entity.
- The court should have excluded public purpose where a private entity controls the use of the property.
- Remedies could include time limits for development or divestment of the property if significant progress is not made.
- The court should use a stricter assessment to determine if a taking will truly benefit the public.
- The New London Development Corporation's plans were not effectively controlled or checked by the legislature or city council.
- Efforts have been made by the legislature to limit the use of eminent domain for private development, but these laws may not be effective.
- The issue of blight and the definition of public use still need to be addressed.

- The speaker discusses the effectiveness of citizen initiatives and the impact of property rights activists.
- They argue against banning certain practices and suggest honoring companies that have contributed to economic development.
- They propose punishing companies by making them pay a portion of lost property taxes.
- The speaker mentions the importance of government engagement in economic revitalization and private entities' involvement.
- They discuss the need to narrow the interpretation of the law regarding public use and public purpose.
- The speaker acknowledges the difficulty of finding a solution to the expansion of the concept of public welfare.
- They conclude by mentioning the ongoing research and the need for further discussion on the topic.

- The video discusses the principle of not taking property without compensation, as found in natural law and the Takings Clause of the US Constitution.
- An older case from 1894, Lawton against Steele, is used to show the open-endedness of this provision.
- The case involved the prohibition of using fish nets in New York lakes, and the Supreme Court ruled that the state had the power to enforce this prohibition.
- The video raises questions about the common good and the reasons for regulation, suggesting it may be related to protecting fish populations.
- The case illustrates the government's power to regulate fishing and seize property without compensation.
- The Kelo case involves the use of eminent domain to seize private property for a development project in New London.
- The Supreme Court ruled that the state could take the property without violating the Fifth Amendment.
- The discussion highlights the need for limits on delegation and the potential for arbitrary decision-making.
- The court emphasized the importance of careful consideration and evidence in condemnation proceedings.
- The dissenters argue for a rational test and reasonable certainty in the connection between the action and public benefit.
- The court rejects a narrow view of public use and focuses on whether the development plan serves a public purpose.
- The court does not feel responsible for double-checking the rationality or sense of the plan.
- There is mention of a recession and the failure of a similar plan involving Pfizer.
- The court's decision allowed the taking of private property for public use, but the definition of public use was not clearly defined.
- Remedies could include time limits for development or divestment of the property if significant progress is not made.
- The court should use a stricter assessment to determine if a taking will truly benefit the public.
- Efforts have been made to limit the use of eminent domain for private development, but these laws may not be effective.
- The issue of blight and the definition of public use still need to be addressed.
- The speaker discusses the effectiveness of citizen initiatives and the impact of property rights activists.
- They propose punishing companies by making them pay a portion of lost property taxes.
- The speaker mentions the importance of government engagement in economic revitalization and private entities' involvement.
- They discuss the need to narrow the interpretation of the law regarding public use and public purpose.
- The speaker acknowledges the difficulty of finding a solution to the expansion of the concept of public welfare.
- Further research and discussion on the topic are needed.

And I'm just gonna give you a quick answer.

So I would like to start with the answer.

We entered a day, a new and rather different part of the course, but an interesting 1 and controversial 1.

I think I might start by saying that the presentation of the subject in the case book is a little bit misleading, I think.

It suggests, at least by implication, that this is a new problem, that this is something which has emerged in recent days because of the attempts to extend the law of takings beyond what it originally was.

The principle that the government should not take your property without compensating you for it is found in the natural law and you will find it stated in the text, the texts of which interpret the natural law, Grotius, for example, Pufendorf, Barbarach, all endorsed and described the rule that the government could not just take your property arbitrarily and put it to their own uses.

So those authors that we saw relevant in Pearson and Post, the very first case that we had, also contained the principles that we're talking about today.

That is what is found in the Takings Clause of the United States Constitution.

Nor shall private property be taken for public use without just compensation.

It states the principle, no doubt about that, but Is it obvious that the rule is that it can be taken with compensation?

Is it obvious what is meant by private property?

We have to look at the law on the subject, look at the way it's been put into practice in the courts.

And to do that, I'd like to introduce you to an older case where you see the effect of the clause and the open-endedness, if you like, of the provision in the Constitution.

It comes from a case from 1894, Lawton against Steele.

If you want to look at it, it's in 152 U.S.

Report 133, and it was a case decided in 1893 and 94.

It prohibited the use of fish nets to take fish in the lakes in New York state by using a net.

In other words, it was protecting the fishing industry or the fishing sport, which would be by a hook, by a pole and a hook in favor of a provision that you could do so by if you if this were legal if you could do so by using a fish net to scoop in the the fish any questions about that I think it's pretty obvious what it did.

And the Supreme Court in the case held that it was beyond the powers of New York State to, I'm sorry, it was within the powers of the New York State to forbid the use of nets and to confine the sport of fishing to those who used hook and pole.

As the waters referred to in the act are unquestionably within the jurisdiction of the state of New York, there can be no valid objection to a law regulating the manner in which fishing in this water should be carried on.

The duty of preserving the fisheries of the state from extinction, of prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish is as clear as its power to secure to its citizens as far as possible a supply of any other wholesome food.

Under this power it has been held that the state may order the destruction of a house falling to decay or otherwise endangering the lives of passers-by, the demolition of such as are in the path of a conflagration, the slaughter of diseased cattle, the destruction of decay or unwholesome food, the prohibition of wooden buildings in cities, the regulation of railways and other means of public conveyance, and of internments in burial grounds, the restriction of objectionable trades to certain localities, the compulsory vaccination of children, the confinement of the insane or those afflicted with contagious diseases, the restraint of vagrants, beggars, and habitual drunkards, the suppression of obscene publications and houses of ill fame, and the prohibition of gambling houses and places where intoxicating liquor are sold.

Beyond this, the state may interfere wherever the public interest demanded.

In this particular, a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests.

In other words, what this extract from the Supreme Court says is that the state has a considerable power and a considerable leeway in exercising that power in reaching into our lives and telling us how we can make use of our property.

You have a net, you can't use it to fish in Lake Ontario.

That's what the law says, and the law is a legitimate protection of the pastime, or perhaps even the industry, of fishing in Lake Ontario.

There should be, because it's a striking case, I think, of the exercise of legislation to ban 1 particular way of catching fish.

I guess the reason would be, I guess, protecting, I guess it would be within the state's police power, that we're protecting the right to,

guess you'd probably catch fish naturally in the pine.

The common good of that specific society.

What they ask, what would be the common good of their natural law?

It says in the case there is an extinction concern.

So the extinction concern for the fish so

the state is not providing the power to preserve the fish, presumably for the population to follow in the future.

I mean I think extinction is a fairly good reason to regulate.

It seems to be like an industry regulation thing.

Well, what happened in the case was the state officials seized the nets and burned them.

I thought this would be a striking case to put before you, to show the extent of state power to regulate what otherwise is a trivial matter in the interest of the sport fishermen?

I think it makes sense actually, because it seems like the idea of using nets instead of poles to catch fish, kind of you're maybe crossing the line into more commercial type of fishing activity.

The state might have an interest in not only for the conservation like the extinction aspect but also just regulating commercial activity requiring fishermen to have licenses that sort of thing.

I think that's right There's no question that the state can require a fishing license, like a hunting license.

We talked about that earlier in the course.

It's within the power of the state to do that.

And if they can do that, why can't they intrude a little further in banning fish nets?

In other words, it would seem to be within the power of the state, as long as we admit that the state has the power to control fishing by issuing fishing licenses.

Yeah it seems like there could be issues going if you keep going down that though like does the state blow up your boat or sink your boat if you were in waters that you shouldn't have been in.

It seems unclear how far the state's regulatory interest gets them to be able to take or destroy your property without any process or compensation for it.

Could the state, instead of just burning the nets, burn the boats in which the nets had been used and your inclination is to say.

I would say maybe seize them for a period of time and give them back but like just take and destroy completely.

the case of something like the property were of great value,

and for instance, the best will employ, it

would be dangerous for them to move to the offshore to store that in public.

strifling value, they'd also be destroyed.

In other words, there's a line somewhere between those 2.

Just where it is is a little hard to say on the basis of the opinion, but the opinion is clear on the point that this is on the permissible side.

It's all right to burn the nets, but maybe not the boats where the nets were.

If this is permissible, where do we draw the line so that we don't confiscate the boats themselves?

Of unsubstantiated economic impact on the people that you're taking it from.

I think it gets too much into letting courts decide what the objective value of an article is.

I think it, to me, because I agree with the outcome of the

would rather define it as the nets are inescapable article of the violence.

The boats can be used for pole fishing, the nets have to be used for net fishing.

And so your reading of the Constitution is such that that's the distinction that you draw.

The government has the power to stop net fishing and even to stop the instrument of net fishing, but it can't go very much further than that.

Yeah, I mean, my reading of the situation is that we should err on the side of the government have to compensate, but there are times when the police power allows states to do things like this.

had a car that violated emissions standards, the government could light it on fire if the government is of valid interest in regulating the emissions standards?

It seems like we can't just say that the instrument or whatever can be taken and destroyed.

There needs, like I said, we can say the exhaust pipe or something, but the whole thing is

Retooling the car could, like changing the car and remaking the engine so that it does fit emission standards could be argued as a taking, because you are taking some aspects of the car, in fact, those that violate the emission standards.

But that would still be a held to a valid police power regulation.

the study of these cases is that it's not just

there are people taking the meds and burning them.

It's not just, you know, there is some compensation in your experiment which like it's not something that they can they can bring to the mess but it's somewhat fair to think that there's someone who would compensate you.

Well, we said it, like the constitutional phrase doesn't suggest compensation, right?

What I put it for you, The purpose of that is simply to introduce you to the subject and to illustrate it by an old case.

This is often treated, and I think even by the casebook itself, as a modern phenomenon, as something which has burst upon the scene, which allows the government to undertake projects which would have been anathema a hundred years before.

But here's a case from more than a hundred years ago in which the power of the government to regulate fishing becomes a power to seize the instruments of fishing and to take them without any compensation.

I'm putting that before you simply as an illustration of the antiquity, if you like, of what the subject that we're undertaking today, that is the Takings Clause.

It's not something which has sprung upon us, but in fact an old and dare I say useful power to be put into the hands of government.

Protect the instruments, protect the interest of hook and pull fishing at the expense of the industry of fishing.

Does the rule from law to be sealed the government can take a property that's trivial and not compensate for it still stand?

Well, that's what we're gonna talk about.

That's what the modern cases are mainly about.

And I put this case before you simply as an illustration that the subject which is often treated and I think treated in the case book, as something which has emerged with land use regulation in the last 25 years, is not an accurate depiction of the institution that we're talking about here, that is the limits of the, and the extent of which the government can take property without compensating anyone for it.

We know that the government has the power to take our property, but they have to pay us for it.

The Lawton case is an example where they don't have to pay anyone for destroying the nets.

It's part of the police power that is held by the government.

Are there any other questions or remarks about the case?

You don't get that impression from the case book itself.

And that's my reason for putting it before you.

Okay, let's take then the first case we have, Kelo against

the city of New London, they approved a development project that involved the use, using the eminent domain authority to seize private property and to sell that private property to the developers to develop that project.

And the city said that the purpose of that was to create new jobs and increase tax revenues from the sale of the property.

So Suzette Kilo, she lived in a home in New London since 1997.

And she will have Mina Gary, who was also an update this, she was also born in her new London home in 1918.

And so they were 1 of the properties that was scheduled to be condemned for the city's development project.

And so all the owners together, they decided to bring a suit against the state to say that they had violated the public use requirement of the Fifth Amendment.

And the state granted them an injunction and said that their property could not be taken away.

And so, and then the Connecticut Supreme Court also affirmed that judgment.

And so then the Supreme Court looked into the issue.

And the Supreme Court said that the state could take their property without violating the Fifth Amendment.

Let's go back to the process by which the city arrived at this plan.

They hired a planning company, the NLDC, to sort of come up with a solution for the decreasing economics and quality of the area.

And so the NLDC came up with this plan to, you know, they were gonna have a housing project.

They were going to extend, I believe, like the boardwalk and the use of Marina.

I mentioned that because this was not the legislature was it?

No, like they I think the, let me see here real quick, yeah the city of New London hired the New London Development Corporation, which is a private nonprofit entity to assist the city in planning economic development, which I think is fairly common for most municipalities in the US to do.

I raise it because it seems like a delegation to a private outfit by the legislature.

And then the legislature kind of rubber stamps it and it goes ahead as part of it as an act of the legislature.

And the that seems to be all right not a an unlawful delegation of the authority of the legislature, which is elected, but to a private organization that is unelected.

And somehow that is turned into an act of the state itself.

I mean, I think this is a case of like, I think we put a lot on the people in the legislature to understand.

I don't think we can expect them to have a full understanding of every aspect of every topic or subject in which they're going to legislate.

So I think in this case, it makes sense for this not to pass it off to an expert, but to sort of bring people in to have experience handling this.

I mean, this is why there's so many lobbyists and Congress and organizations that aren't necessarily making the legislature like it's still passed by the city.

But I think it makes sense to have them do it because their job isn't necessarily to come up with the best economic plan, it's to figure out a solution for the town.

And I think using the NLDC serves that purpose.

Suppose I'd say, suppose they delegated this to the first year class at Washington University Law School.

I would, I would, I would not think that was.

Well, you wouldn't think it was a good idea, but would it be legal under the under the decision?

Well that's a truly frightening thought, isn't it?

But is that what the, where we are now, where we stand now?

I don't think so, I mean, I don't think their point, so I mean, at least I didn't take away from the case that they're sort of contesting the use of a nonprofit entity to establish the plan.

It's just, it wasn't so much the plan itself as the purpose of it.

And I think it's the fact that it included private residences, not that it came from a private non-profit entity, it's the fact that it includes the use of land for private residents.

And I think that's where their contention is sort of coming from.

But imagine the legislature decided to, will approve this plan if it's heads, but not if it's tails, and they flip the coin.

I would, I would, I think that I don't think that would be illegal, but it should be.

Well, my reason for raising it is, is, is I wonder how much delegation they can actually do.

like the extent to which they can put it in the hands of somebody else to make a decision regarding the development.

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Property (Helmholz) - Fall 2023