Ben Barros on O'Connor, Midkiff, and Kelo:

Intersting post by Ben Barros looks at the SCOTUS conference notes on Midkiff and Justice O'Connor's effort to retreat in Kelo from the sweeping language she used there. An excerpt:

In light of the recent furor over Kelo v. New London, Justice O'Connor's opinion in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), seemed like a good place to start. Midkiff was the Court's leading pre-Kelo statement on the meaning of "public use" in the eminent domain context. The Court's thought-process in Midkiff is interesting because Justice O'Connor's opinion for a unanimous Court articulates a broad conception of public use that O'Connor later came to regret in Kelo.


Justice O'Connor came to regret the broad language of Midkiff, noting in her Kelo dissent that "There is a sense in which this troubling result follows from errant language in Berman and Midkiff. . . . [W]e said in Midkiff that '[t]he "public use" requirement is coterminous with the scope of a sovereign's police powers.' This language was unnecessary to the specific holdings of those decisions." I will address the rest of Justice O'Connor's dissent in a future post, but this particular statement rings very true. The broad concepts articulated in Berman, and strongly reinforced in Midkiff, arguably mandated the result in Kelo. Had Midkiff in fact been decided in a narrow fashion based on its unique facts (among other things, unlike most exercises of eminent domain, it did not displace the people in possession of the homes being taken), Kelo may have come out differently. Or it may have come out as it did, but Justice O'Connor's dissent wouldn't have been weakened by the need to eat her own words.

Midkiff therefore contains a moral that the Justices and their clerks would do well to heed -- the full consequences of grand statements of principle are rarely clear when articulated. They therefore should be used with great caution, because they might come back to bite you.

The most amusing hypothesis that I have heard to explain O'Connor's "evolution" from Midkiff to Kelo is that she knew she was retiring at the end of this term, and Kelo represented her transition from Washington beltway cocktail parties to Arizona ranchers cocktail parties so she wanted to make sure that her personal popularity remained intact with the relevant constituencies. Talk about legal realism!

Nobody Special:
I assume that by "Arizona ranchers cocktail parties" you mean "Arizona ranchers ice chest full of bud light" parties.
10.12.2005 11:57am
Dave Hardy (mail) (www):
1. At Arizona rancerhs' parties, Bud Light is for wussies.
2. I'm now trying to work around another of O'Connor's lapses into overly broad languge. In the McConnell case, dealing with campaign finance and ads, she rejected a facial challenge to one definition and unfortunately stated "we uphold the definition in all its applications." Most likely, the reference was to the fact that the definition is applied in three different sections of the statute. Some commentators, and a 3 judge court (from whose ruling the Supremes just noted prob. jurisdiction) have, however, read that to rule out any future as-applied challenge. That is, read the opinion as binding regarding facts not before the Court and utterly unforeseeable by the Court.
10.12.2005 12:06pm
Gordon (mail):
Actually, in Arizona they would still be cocktail parties, except that the attendees would be Phoenix Republican elites and all the men would be wearing bolo ties.

There aren't many real ranchers like Harry Day left in Arizona.
10.12.2005 12:23pm
I'd say that in Midkiff she probably liked the government purpose, and in Kelo she didn't. I like the cocktail party explanation though.

A question, if I may: I just read through Midkiff, which I haven't looked at in a couple years. It seems to say that the public use requirement began with Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403 (1896). So I looked that case up, and was interested to see that it apparently rested not on the eminent domain clause, but on Due Process grounds:

"The taking by a state of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law, and is a violation of the fourteenth article of amendment of the constitution of the United States."

Is that right? Did the court at some point just switch its rationale? Is this well known?
10.12.2005 12:36pm
Thorley Winston (mail) (www):
I'd say that in Midkiff she probably liked the government purpose, and in Kelo she didn't.

There's probably more than a grain of truth to that. In Midkiff the government purpose was "land reform" to force an oligopoly of landowners to sell property to tenants who might not otherwise have been able to afford it. In Kelo, it was to take the property of a middle class family to give it to a private corporation for purposes of economic development. Some day people will learn that when you say it's okay to use the force of government to steal from the "wealthy," you're paving the way for the day when governmental force can be used to steal from you.
10.12.2005 12:54pm
Ben Barros (mail):
Marcus, cases from that era (including Mahon) tend to talk about takings as substantive due process violations, not as violations of the JCC. Part of the problem is incorporation -- it wasn't tremendously clear in that era that the JCC applied to the states. It is interesting to note that O'Connor wrote Lingle v. Chevron last term, which stands for the proposition that takings and due process analyses shouldn't be mixed. SDP analysis got mixed up with takings in part because more modern takings cases cite the early SDP cases without thinking about whether the Court was asking exactly the same questions.
10.12.2005 12:56pm
Nunzio (mail):

Maybe that case had to do with the embarrasing fact that the 14th Amendment doesn't have a takings clause (just like the 5th Amendment doesn't have an equal protection clause). So even in Kelo and Midkiff, the technical textual basis would have to be the "life, liberty and property" without due process of law clause from the 14th Amendment interpreted to mean can't have an uncompensated taking and the taking must be for "public use." Just as Bolling v. Sharpe was a "life, liberty and property" without due process of law clause interpreted to ban racial segregation.

Kelo (or any of them) would have been an easy case for a strict textualist. As long as the gov't body passed a law before taking your property, no Constitutional violation.
10.12.2005 12:59pm
cfw (mail):
"Some day people will learn that when you say it's okay to use the force of government to steal from the "wealthy," you're paving the way for the day when governmental force can be used to steal from you."

Change "steal" to "buy at fair market value, decided by a jury" and I agree. As written, this is rhetoric without substance, yes?
10.12.2005 1:41pm
Thorley Winston (mail) (www):
Change "steal" to "buy at fair market value, decided by a jury" and I agree. As written, this is rhetoric without substance, yes?

Um no it's not. What constitutes "fair market value" is determined by markets where buyer and seller mutually agree on a price not when one party is forced to "sell" against their consent. But thanks for playing.
10.12.2005 2:07pm
Shelby (mail):
Some day people will learn

Alas, no they won't.
10.12.2005 2:23pm
NickM (mail) (www):
The Fifth Amendment's Takings Clause contains no inherent limitation of its reach to only federal takings. True textualism applies its restrictions to every level of government without the need for incorporation by any other provision of the Constitution or Amendments thereto.

10.12.2005 2:32pm
Thorley (and others): Midkiff had to be decided in the State's favor.

I don't think the owners would have given up the land, period. They knew full well that *nobody* would be able to afford the fair market value.

However, I do think that anything involving land in Hawaii necessarily doesn't really apply to anywhere on the Mainland, for the simple reason that there's nowhere else that there's such an extreme scarcity of usable land (and massive amount of historical baggage) as there is in Hawaii (and particularly on Oahu).

Keep in mind that for most purposes, the only really usable island in the islands is Oahu. Hawaii has Kilauea destroying property wherever the lava decides to flow; Maui is too small for most people to afford. Lanai is too remote.

Which leaves (since the other islands aren't really inhabited) Oahu.
10.12.2005 3:46pm
Some day people will learn that when you say it's okay to use the force of government to steal from the "wealthy," you're paving the way for the day when governmental force can be used to steal from you.

Corporate welfare is a hardly a neoteric concept.

Certainly not for Republicans.
10.12.2005 4:05pm
Gordon (mail):
Thorley Winston says:

Um no it's not. What constitutes "fair market value" is determined by markets where buyer and seller mutually agree on a price not when one party is forced to "sell" against their consent. But thanks for playing.

If that's your objection, then you must object to ANY eminent domain actions, even if it is for a legitimate public purpose such as a highway

And, by the way, snotty condescension doesn't win arguments.
10.12.2005 4:22pm
yclipse (mail):
If the "Arizona ranchers" hypothesis is true, that is just as appalling as the jurors who found in favor of the plaintiff in the first Vioxx in order, reportedly, to ensure that they would be invited to appear on Oprah.
10.13.2005 8:36am

Yes the fair market value is the agreed to price between buyer and seller. Thats it, there is no other deffinition.

Emminent domain? Yes. But, The Kelo ruling changed the words 'for public use' to 'for public good'.

You are just wrong. there is only one way to determime what fair market value is. The market. Take market out of that three word statement is ceases to have meaning.
10.13.2005 12:52pm

How do you veiw the Constitution as a geographicale document? Last I checked all 50 states were involved. How do you make a difference, on a constitutional basis, between Kelo vs Wyoming? Just a question.
10.13.2005 1:02pm

A valid question.

I don't. However, I don't think that a decision made on Hawaii land use has much applicability anywhere else in the US, even as precedent.


1. Look at the linked post.

For several historical reasons, land ownership in Hawaii was unusually concentrated. On Oahu, for example, 22 landowners owned 72.5% of the fee simple titles. Many of these landowners were hesitant to sell parcels of their property because of potentially large federal tax liabilities. The result was that most people leased, rather than owned, their homes.

For those who don't know (not necessarily you, corngrower), fee simple titles are complete ownership of the subject of the title, typically land. There are no restrictions in the title to land use. Most commonly used form of title, so its synonymous w/ land ownership.

So, 22 people own 72.5% of the land on Oahu. That does not happen anywhere else in the US.

Now, that means that most people on Oahu, and hence in Hawaii, leased their homes.

It may be a 99-year lease, but it is still a lease.

When you lease your home, you cannot mortgage it. You cannot use it as collateral.

Your continued occupancy of it may even be in question, long-term.

2. Why does all that matter?

Because most people have the vast majority of their assets in their home. Actually, their home is the vast majority of their assets.

If you do not own your home, you have very little in assets. Which means that things like credit are difficult to get, if not impossible. (Most lenders require you to own your home.)

If nobody owns their home, and can *never conceivably* own it (recall that due to tax liabilities, the landowners were unlikely at best to sell), you've just created a near-permanent underclass.

That is a security issue.

Land tenure is a cause of revolutions, most spectacularly in Latin America, which had the same concentration of ownership.

Additionally, the reality that most people had few assets to their name basically put a roadblock on Hawaii's economic development.

3. Why is that unique and not applicable to Hawaii?

This is a situation that doesn't exist in the rest of the US.

In the other 49 states, land is much more widely owned. Also, in most cases, all of the land is potentially usable; We just choose not to use it.

Neither applied in Hawaii pre-Midkiff.

The second, due to geographic and similar factors, still does not.
10.15.2005 2:12pm
Hi penta

All of your points are well reasoned. It's just that the Constitution adresses not a single one of your points.

SCOTUS can (should) only apply statute in reference to the Constitution. And even though the points you raise are all valid, it would be impossible for a state to write a statute that would allow what SCOTUS did, to do.

While I do not doubt your numbers on land ownership the same could be said of areas of greater size on the mainland. there areas that are larger in area and controlled by only one land owner. That one landowner would be Uncle Sam

So the rules (laws) would also apply?
10.17.2005 11:40am
girls (mail) (www):
colega K venezolanas ardientes K busca chicas K pilladas hotel K casais swing K vikinis K maduras tanga K revista porno ebano K sonic seducer K relatos de coitos K videoclip aerobic K madura oaxaca K free shemale video K videos calientes K girona follar K latinas eroticas K fotos espiritus K fotos gratis famosas K nombres porno maduras K gothic walktrough K gordas aciendo sexso K tetonas hardcore K www peruanas gratis K videos lesvianas gratis K felacion K prostitutas cojiendose K delgadas folladas K depilacion masculina pubis K lesbianas relatos K teens ardientes K solo fotos xxx K spanking con mujeres K galerias pornostar K fotografias gratis sexo K lamepies K paula shemale K contactos sexis K chicas en bikinis K fotos mujeres crucificadas K chochos chorreantes K enorme teta bikini K www barbie cosmeticos K sexso casero K dibujos de pormo K barrigas embarazadas K exo gratis K pornostar colombia K peliculas video K famosas venezolanas desnuda K musculosos en pelotareality amazing sex videofilms K gay leisure porn film K brunette sample porn videofilms K ethnic funny xxx dvd K gang bang view porns dvd K teen horny xxx films K teen spanking porns vhs K threesome watch porns movie K group sex spanking porn films K toys famous porn mpegs K mature live sex video K mature streaming sex release K toys online xxx wmv K oral long porn vhs K amateur sample porns mpegs K reality massive porn release K gonzo nice porn vcd K brunette sweet sex dvd K facial quality porns release K amateur long porns release K dp new porn wmv K toys live xxx mpgs K toys perfect sex mpegs K porn star quality porn avi K amateur streaming porns mpgs K blonde homemade sex movie K dp cheap porn movie K ethnic fucking xxx vids K cumshot free xxx mpegs K blonde full length porn vhs K teen leisure sex release K gonzo indian xxx wmv K homemade sex vhs K first timers japanese sex vcd K erotic xxx video K amateur home porn release K oral free xxx wmv K facial famous porn vids K gonzo streaming sex dvd K dp sweet porns films K teen instant xxx avi K cumshot no charge sex mpgs K dp view sex mpgs K amateur hot porns video K blonde horny sex films K first timers exotic xxx films K toys watch porn vhs K first timers celebrity porns vids K blowjob new porns vcd K oral classic sex movielittle teens galleries K stripping teen avi K hottest 18teens sekx K daily 19teens galleries K sexy teenie thumbnails K rough ninteen pics K young teenies blowjob K brunette 21 thumb K little teens freeporn K chicks 19teens sekx K naked cheerleader vid K erotic 18teens sucking K bitch 19 fotos K attractive teenz masturbation K hoty students videos K outdoor teens thumbnail K adult teens vid K extreme 18teens fotos K blond 18teen porn K sweaty teenage videos K hottie 19teen sucking K perfect teenies masturbation K fat 19teens pics K little 18teens pictures K chick 20 mpeg K sweaty teenz thumbs K erotic teenage mpg K rough 19teen avi K adult 18teens trailer K black 18teen vids K bisexual students mpg K little student freesex K undressed 19teen tits K fucked 20 masturbation K extreme teens thumbnails K hungarian 21 orgy K stripping teens gif K brunette teens fotos K naked 18 samples K nasty ninteen jpg K naked cheerleaders mpgs K sexy 18 clips K bisexual teens vid K pigtailed 21 clips K exploited 18 gif K sweaty 18teen thumbnail K outdoor teenies thumb K naked teen vid K rough cheerleaders ass K erotic 18teens thumb1st tajm svallou kara K 1 st tajm svallou kara K first tim svallou kara K fist tim svallou kara K firs tim svallou kara K firt tim svallou kara K 1st tim svallou kara K 1 st tim svallou kara K first tims svallou kara K fist tims svallou kara K firs tims svallou kara K firt tims svallou kara K 1st tims svallou kara K 1 st tims svallou kara K first times svallou kara K fist times svallou kara K firs times svallou kara K firt times svallou kara K 1st times svallou kara K 1 st times svallou kara K first timers svallou kara K fist timers svallou kara K firs timers svallou kara K firt timers svallou kara K 1st timers svallou kara K 1 st timers svallou kara K first time swollows kara K fist time swollows kara K firs time swollows kara K firt time swollows kara K 1st time swollows kara K 1 st time swollows kara K first tajm swollows kara K fist tajm swollows kara K firs tajm swollows kara K firt tajm swollows kara K 1st tajm swollows kara K 1 st tajm swollows kara K first tim swollows kara K fist tim swollows kara K firs tim swollows kara K firt tim swollows kara K 1st tim swollows kara K 1 st tim swollows kara K first tims swollows kara K fist tims swollows kara K firs tims swollows kara K firt tims swollows kara K 1st tims swollows kara K 1 st tims swollows karafoto de puta K teen colegialas bolivia K fotos lesbianas sexo K disney bomberos K culos chicas K tranny asian K model xxx K galeria travesti 20 K fotos bellezas bolivianas K sexo madura follando K culitos negras K penes negros corridos K bubakke K gay follando depilado K www videos com K movil mas pequeno K travesti brasilenas K amenagay K prensa escrita K swing brasilia K coos peludos K infraganti gratis K scorts maduras K hermosa K amador county realtor K fotos gratis de K california K fotos creampies K mazatlan erotico K corazones K maricarmen fotos amateur K enemas relax K fotografias xxx gratis K asiaticas fotos galerias K esos chochos K interracial n act K desnudos pornos K mujeres en colales K modelos con minifalda K porno com co K www pajilleras K penetracion por detras K slut K dibujos secretarias K www abuelas putas K ford escort tunning K juguetes xxx K mulatas denudas K chupadas de culo K chochos de jovenesve left togeter devil K ve left togeter dina K ve left togeter down K ve left togeter dvd K ve left togeter elexus K ve left togeter eliza K ve left togeter film K ve left togeter foto K ve left togeter fotos K ve left togeter friends K ve left togeter galleries K ve left togeter gallery K ve left togeter gals K ve left togeter giana K ve left togeter gif K ve left togeter gina K ve left togeter haley K ve left togeter isabella K ve left togeter jacqueline K ve left togeter jade K ve left togeter jayna K ve left togeter jazmin K ve left togeter jenni K ve left togeter jenny K ve left togeter jessy K ve left togeter jueliza K ve left togeter justine K ve left togeter kayla K ve left togeter kaylah K ve left togeter keiry K ve left togeter kendall K ve left togeter kimmie K ve left togeter kyla K ve left togeter kylie K ve left togeter laura K ve left togeter leena K ve left togeter leslie K ve left togeter lexi K ve left togeter lexy K ve left togeter lily K ve left togeter lonnie K ve left togeter lynn K ve left togeter mackenzie K ve left togeter madisen K ve left togeter marina K ve left togeter marlena K ve left togeter mary K ve left togeter meg K ve left togeter megan K ve left togeter mikaylasuper xxx big cock K long xxx big cock K online xxx big cock K xxxx big cock K best xxxx big cock K fat xxxx big cock K natural xxxx big cock K nice xxxx big cock K perfect xxxx big cock K sweet xxxx big cock K teen xxxx big cock K hot xxxx big cock K massive xxxx big cock K horny xxxx big cock K funny xxxx big cock K new xxxx big cock K popular xxxx big cock K free xxxx big cock K no charge xxxx big cock K instant xxxx big cock K quality xxxx big cock K leisure xxxx big cock K view xxxx big cock K watch xxxx big cock K live xxxx big cock K instant access xxxx big cock K fucking xxxx big cock K super xxxx big cock K long xxxx big cock K online xxxx big cock K videofilms big cock K best videofilms big cock K fat videofilms big cock K natural videofilms big cock K nice videofilms big cock K perfect videofilms big cock K sweet videofilms big cock K teen videofilms big cock K hot videofilms big cock K massive videofilms big cock K horny videofilms big cock K funny videofilms big cock K new videofilms big cock K popular videofilms big cock K free videofilms big cock K no charge videofilms big cock K instant videofilms big cock K quality videofilms big cock K leisure videofilms big cock K view videofilms big cockextreme jordan flies K full jordan flies K hungarian jordan flies K perfect jordan flies K women jordan flies K youngest teena fine K horny teena fine K hot teena fine K steamy teena fine K wet teena fine K fat teena fine K nude teena fine K fucking teena fine K adult teena fine K attractive teena fine K exposed teena fine K stripping teena fine K undressed teena fine K blond teena fine K innocence teena fine K fresh teena fine K rough teena fine K never on film teena fine K asian teena fine K bitch teena fine K bitches teena fine K black teena fine K brunette teena fine K chick teena fine K exploited teena fine K extreme teena fine K quality teena fine K women teena fine K young cherish K youngest cherish K horny cherish K hot cherish K steamy cherish K naked cherish K wet cherish K fat cherish K nude cherish K sexy cherish K erotic cherish K naughty cherish K exposed cherish K stripping cherish K undressed cherish K blond cherish K little cherishartistas latinas desnudas K fotos ex novias K pillados teniendo sexo K vaginas en accion K culitos con pene K shemale club sol K orgias maduras K swing sex K lolitas anales K maduras desnudas K amater total K porno com cavalos K embarazadas fotos gratis K amateur haciendose pajas K pillados playas nudistas K famosasdelatele K colegialas regaladas K foto de pene K comic insesto K peruanas porno K denuda mugeres K celia blanco jpg K lenceria ligueros K travestis valladolid K marcela shemale K legs finder K sexo encontros K seattle K miss melilla K chochos chorreando K buscadores de adultos K fotos amateur lesbianas K fotos sexo viejas K sexy teta xxx K corrridas faciales K mujeres oscuras desnudas K buscadores sexo gratuitos K pornografia en videos K maduros y velludos K consoladores gigantes emule K swing casal fotos K scorts rusas K scorts xxx K www pechos K galerias de meadas K mujeres chat K juegos sexis K free shemale dating K peliculas de dibujos K pelicula pan caliente
10.25.2005 7:13am