Supreme Court to get Corporate Sponsor?

[Laozi]

http://www.washingtonpost.com/wp-dyn/conte...5062300783.html

 

I'm pretty interested in what people think about these rulings, and if legislation has been passed in European countries that allow for the same. I don't believe that this is an accurate interpretation of the law, and is essentially the Supreme court writting their own laws, or stalling the execution of the law for corporate interest. The biggest problem with this ruling is that it will almost certainly be "turned over" on appeal oneday, but even so in the American justice system these things are heavily in favor of anyone who can hire countless lawyers to file a neverending stream of "motions" to bog down court proceedings.

 

Another question I would ask is: Did the Supreme Court rule in favor of this knowing that this is essentially unconstitutional, but also that the "damage" would be done before anything could change?

 

Also there was some other unfair ruling against filesharing or something with the whatnot.

[taks]

uh, the supreme court is generally considered the authority on what is and is not constitutional. as a result, saying "Did the Supreme Court rule in favor of this knowing that this is essentially unconstitutional" is meaningless because in the end, this is their call to make.

 

that said, to argue their decision is really a matter of interpretation. they (the 5 justices in favor) interpreted the "public use" clause of emminent domain to mean "more tax revenue for the community=public use". i personally disagree with this interpretation vehemently, as did the 4 remaining justices. unfortunately, the only way this will be overturned is if one of the liberal (er, left leaning) justices retires.

 

as far as i know, the only one close to retirement is rhenquist, and he was a dissenter on this issue.

 

taks

[taks]

Also there was some other unfair ruling against filesharing or something with the whatnot.

<{POST_SNAPBACK}>

tough call, but filesharing can also mean trading something that somebody else legally owns. i'd say this is at least not unfair, but maybe needs more discussion for reasonable alternatives (danged information age).

taks

[Enoch]

that said, to argue their decision is really a matter of interpretation.  they (the 5 justices in favor) interpreted the "public use" clause of emminent domain to mean "more tax revenue for the community=public use".  i personally disagree with this interpretation vehemently, as did the 4 remaining justices.  unfortunately, the only way this will be overturned is if one of the liberal (er, left leaning) justices retires.

 

as far as i know, the only one close to retirement is rhenquist, and he was a dissenter on this issue.

 

taks

<{POST_SNAPBACK}>

 

Not necessarily. The Kelo case (Kelo v. New London) was really about federalism. The government has always been able to take property (this goes back long before independence), and the Constitution affirms that it still can (but requires "just compensation," which earlier legal systems didn't necessarily do). The Constitution requires that the takings be for a "public use."

 

The question that the majority answered isn't "What is a public use?", it's "Who gets to decide what a public use is?" They concluded (correctly, I think) that local governments should make this call rather than federal courts, and that a taking that is turned over to a private developer isn't per se unreasonable. Although the taking in question in this case might be a bad policy (it probably is), the Supremes don't want to get the federal courts involved every time a local government does something dumb. I'm actually surprised that so many conservatives want such a large expansion of federal judicial authority.

 

The bottom line here is that this case really didn't change anything. If landowners object to a taking of their property, they can resort to the political process, and even if that fails, they're still going to be paid the fair market value of their land.

 

 

Oh, and the speculation is that C.J. Rehnquist will announce his retirement soon. He's 80, and he actually missed a good portion of this past term getting treatment for thyroid cancer. But, the speculation might be wrong; he could decide to hang on another year, and there's nothing anyone can do about it short of impeachment.

 

(edit = added link to decision)

[Enoch]

Also there was some other unfair ruling against filesharing or something with the whatnot.

<{POST_SNAPBACK}>

 

The file sharing ruling was MGM v. Grokster. It simply held (unanimously) that, if a company sets up its product or service intentionally to help people distribute material in violation of copyright laes, that company can be liable for the resulting damages to the holders of the copyrights.

 

This sounds like a victory for the record companies, but it actually makes it pretty easy for the file-sharing services to protect themselves (i.e., put up prominent copyright warnings, don't advertise as a place to DL illegal music, etc.). The key precedent was a case from the 1980s holding that VHS recorders were OK, even though people could (and often did) use them to violate copyrights, because Sony didn't intend VCRs to be a copyright-evasion device.

[EnderAndrew]

On the eminent domain issue, I know many feel this is a bad decision. This could be easily abused if judges aren't responsible, but a good portion of our entire legal system depends on us trusting judges to make good decisions.

 

If the city honestly needs new development for the city to grow and thrive, then so be it. There are projects that will benefit a large group of people, and one small land owner can hold back the betterment of a larger group because of personal interests.

 

And on the file-sharing front, I think the ruling was reasonable. A company that goes out of their way to assist in the act of a crime has broken the law themselves. If they merely present a tool, and make no effort to aid in the criminal use of said tool, then they are not liable.

[Laozi]

Ya the thing about the filesharing is that you can easily relate it to the ruling the supreme court gave on a citozen's right to sue gun manufacturers for making the weapons used in violent crimes. The Supreme Court established that the manufactures couldn't be found culpable in the crime since it is not their responsibility what the user did or didn't do with their product. To me this is pretty similiar.

[Calax]

Ah the joy's of living in America...

[taks]

Not necessarily.  The Kelo case (Kelo v. New London) was really about federalism.  The government has always been able to take property (this goes back long before independence), and the Constitution affirms that it still can (but requires "just compensation," which earlier legal systems didn't necessarily do).  The Constitution requires that the takings be for a "public use." 

uh, that's exactly what i said. i just pointed out the interpretation of public use meaning higher tax revenue vs. roads, buildings, etc.

 

The question that the majority answered isn't "What is a public use?", it's "Who gets to decide what a public use is?"  They concluded (correctly, I think) that local governments should make this call rather than federal courts, and that a taking that is turned over to a private developer isn't per se unreasonable.

i think the reason i differ on this, however, is that the concept would not have been specifically addressed in the consitution had the framers wanted local governments to make this decision. i.e. they said this is a right that is borne into citizens, not something that could be interpreted away... hence, my view that the SC blew it.

 

Although the taking in question in this case might be a bad policy (it probably is), the Supremes don't want to get the federal courts involved every time a local government does something dumb.  I'm actually surprised that so many conservatives want such a large expansion of federal judicial authority.

actually, it's not an expansion of federal judicial authority. all it would have been is a "you can't take it away, and neither can we" statement. there was no new power granted should they have sided against.

 

The bottom line here is that this case really didn't change anything.  If landowners object to a taking of their property, they can resort to the political process, and even if that fails, they're still going to be paid the fair market value of their land.

if you heard what the "fair market offer" was compared with "fair market value" you'd probably change your mind on this. less than 50% of assessed value.

 

 

Oh, and the speculation is that C.J. Rehnquist will announce his retirement soon.  He's 80, and he actually missed a good portion of this past term getting treatment for thyroid cancer.  But, the speculation might be wrong; he could decide to hang on another year, and there's nothing anyone can do about it short of impeachment.

<{POST_SNAPBACK}>

he's the only one close either way. i've already been reading he wants to stay on for a while.

 

taks

[Reinoc]

If I understand correctly, this means a corporation will be able to go to the mayor of a city and ask for a portion of land already owned by a citizen so he can build his Big Bucks Business? If so it opens the door wide for abuse.

[taks]

well, that's a slippery slope argument there.

 

that concept is only feasible if the city itself makes a decision AND, they don't care too much about re-election. mayors typically don't have the power anyway. some sort of city council (or state legislature) would eventually be required to approve such a deal AND, most likely, said business owner really needs to put together a valid business plan before anybody will bite.

 

taks

[Reinoc]

I understand all that, I just hope (for you) that it does not become normal to do that. It's possible that, in the future, people don't question that as much as today.

[Laozi]

Well really where the hang up for me is the ideal that they will appraise your land for you and give you a "fair" return. Thats crap. The biggest thing is that it takes the right of the owner to sell their land at a price of their asking. And worse of all the price is determined before the developement occurs and not an average of the two prices, making this so that what makes the most sense is taking the land away from low income families while also eliminating affordable properties and sending those families out into the world without enough money to afford new property within the immediate area of which they lived. For the most part its going to make homeowners into renters and if you've ever rented property then you know what a screw job that is

[Reinoc]

And if you just want to keep your house, you can't, like this lady that was born in her house in 1918 in New London.

[Enoch]

The question that the majority answered isn't "What is a public use?", it's "Who gets to decide what a public use is?"  They concluded (correctly, I think) that local governments should make this call rather than federal courts, and that a taking that is turned over to a private developer isn't per se unreasonable.

i think the reason i differ on this, however, is that the concept would not have been specifically addressed in the consitution had the framers wanted local governments to make this decision. i.e. they said this is a right that is borne into citizens, not something that could be interpreted away... hence, my view that the SC blew it.

Fair point, although I would argue that the "public use" requirement is really only mentioned in passing. The 5th Amendment says "...nor shall private property be taken for public use, without just compensation." The emphasis is clearly on the "just compensation"-- the "public use" bit just serves to distinguish it from the "private property" bit.

 

actually, it's not an expansion of federal judicial authority.  all it would have been is a "you can't take it away, and neither can we" statement.  there was no new power granted should they have sided against.

I disagree. If the dissenters had won, it creates a new right for individuals to sue in federal court and invalidate an action by a state or local government. It places federal oversight on a state/local action that previously had none. This is normally the type of thing that the conservative justices seek to avoid.

 

Furthermore, if they had prevailed, it creates an incentive to build more government bureaucracies. If a city wants to, say, revitalize a community by building a new convention center, the dissent's argument would force them to build, own, and manage it (assuming that they need to use their eminent domain power to buy up some holdout landowners) while the majority leaves to door open for a more efficient private company to run the show. It seems to me that the latter alternative is more in tune with traditional conservative principles.

 

if you heard what the "fair market offer" was compared with "fair market value" you'd probably change your mind on this.  less than 50% of assessed value.

Wrong. You can always get a competent appraisal and challenge the compensation as insufficiently "just"-- most Takings Clause litigation centers on exactly this issue. Landowners are entitled to what a willing buyer would pay a willing seller on the open market, and if you can prove in court that the government's offer is less than this, you will win. Amount of compensation is a non-issue here; the litigants can still challenge that in court if they want to.

 

Oh, and the speculation is that C.J. Rehnquist will announce his retirement soon.  He's 80, and he actually missed a good portion of this past term getting treatment for thyroid cancer.  But, the speculation might be wrong; he could decide to hang on another year, and there's nothing anyone can do about it short of impeachment.

<{POST_SNAPBACK}>

he's the only one close either way. i've already been reading he wants to stay on for a while.

I've heard a few rumors that O'Connor might step down, but that might just be wishful thinking by some conservatives.

[Reinoc]

Good points. Just a word though.

 

Wrong. You can always get a competent appraisal and challenge the compensation as insufficiently "just"-- most Takings Clause litigation centers on exactly this issue. Landowners are entitled to what a willing buyer would pay a willing seller on the open market, and if you can prove in court that the government's offer is less than this, you will win. Amount of compensation is a non-issue here; the litigants can still challenge that in court if they want to.

 

Not everybody can afford to go in court.

[taks]

Fair point, although I would argue that the "public use" requirement is really only mentioned in passing.  The 5th Amendment says "...nor shall private property be taken for public use, without just compensation."  The emphasis is clearly on the "just compensation"-- the "public use" bit just serves to distinguish it from the "private property" bit.

still, the phrase "public use" had an intent...

 

I disagree.  If the dissenters had won, it creates a new right for individuals to sue in federal court and invalidate an action by a state or local government.  It places federal oversight on a state/local action that previously had none.  This is normally the type of thing that the conservative justices seek to avoid.

but this theory is invalid when you state (as i do) that the right was already there. it has just been misconstrued, IMO. plus, you've always been able to sue, regardless. there is no expansion of power either way.

 

Furthermore, if they had prevailed, it creates an incentive to build more government bureaucracies.

i think that's a bit of a slippery slope as well. as i stated, the system already exists to handle such cases. all a different interpretation on "public use" means is a different definition of the boundaries a community will be held responsible for. people will still be able to sue regardless of what the SC said, and the same system will handle such suits, it's just that this ruling put a precedent on how the suits should be decided.

 

Wrong.  You can always get a competent appraisal and challenge the compensation as insufficiently "just"-- most Takings Clause litigation centers on exactly this issue.  Landowners are entitled to what a willing buyer would pay a willing seller on the open market, and if you can prove in court that the government's offer is less than this, you will win.  Amount of compensation is a non-issue here; the litigants can still challenge that in court if they want to.

as noted, just because the avenue is there does not mean it is truly available to everyone. at issue is poor people on potentially expensive land. they just don't have the resources to fight government encroachment. the same problem crops up in situations where land values skyrocket, followed by property taxes, and the poor that lived there for decades are forced to move (colorado gold mine/casino towns are a perfect example).

 

I've heard a few rumors that O'Connor might step down, but that might just be wishful thinking by some conservatives.

<{POST_SNAPBACK}>

well, i could care less... IMO, she's the least ideological of them all, and i've disagreed with her as much as i've agreed with her. i would be surprised if this were true, however.

 

taks

[Enoch]

but this theory is invalid when you state (as i do) that the right was already there.  it has just been misconstrued, IMO.  plus, you've always been able to sue, regardless.  there is no expansion of power either way.

Everyone has the right to sue on anything, as long as they don't mind it being dismissed for failure to state a legitimate claim the next day. You could sue Obsidian for making lousy video games, but you'd lose because federal judges have no choice but to dismiss-- there is no grounds for suit based on poor-quality video games. If the SCOTUS were to give that claim a chance of success in federal court, then federal power would be expanded, even though you could technically bring a suit on those grounds before.

 

The same is true for this issue. Public use cases aren't brought (this one was an exception-- a test case brought by interest groups to see if the Connecticut SC or the SCOTUS would change their stance; it won't be repeated) because the litigants and their lawyers know that they have no chance of winning. If the dissenters had their way, federal judges would have gained the authority to question the public use decisions of local governments. That means more authority than they had before, when they were bound by precedent to defer to local determinations of public use (I maintain that this case actually didn't change any law; there is precedent from the 1950's that says basically the same thing (some case from Hawaii, if I recall)).

 

as noted, just because the avenue is there does not mean it is truly available to everyone.  at issue is poor people on potentially expensive land.  they just don't have the resources to fight government encroachment.  the same problem crops up in situations where land values skyrocket, followed by property taxes, and the poor that lived there for decades are forced to move (colorado gold mine/casino towns are a perfect example).

First, lack of access to court is a problem inherent in the American rule that all litigants pay their own expenses. Not much to be done about that here, except to note that legal aid groups exist and law firms will often take cases pro bono or on contingent fee arrangements. They also have the resource of public outrage. Complain enough and local media will give you some coverage (they love the government-screwing-the-little-guy story).

 

As for 'poor people' who are sitting on land that has appreciated in value, well, they ain't poor any more, now are they? They should sell their land and use the $ to increase their standard of living. I have a tough time worrying about the well-being of people who are sitting on land that has tripled in value. (cue world's smallest violin)