Tag: property rights

Tuesday Links

  • Americans tuning out the State of the Union: “When Obama had to make way for ‘Lost,’ some lamented the fact that many Americans preferred trash TV over presidential enlightenment. But the public’s lack of interest in the SOTU is actually a sign of political health.”

‘Avatar’ Is about Property Rights

In the Los Angeles Times today, I write about “Avatar”, which has just become the biggest-grossing movie in Hollywood history, and how conservatives have missed the issue at its core:

Conservatives see this as anti-American, anti-military and anti-corporate or anti-capitalist. But they’re just reacting to the leftist ethos of the film.

They fail to see what’s really happening. People have traveled to Pandora to take something that belongs to the Na’vi: their land and the minerals under it. That’s a stark violation of property rights, the foundation of the free market and indeed of civilization….

“Avatar” is like a space opera of the Kelo case, which went to the Supreme Court in 2005. Peaceful people defend their property against outsiders who want it and who have vastly more power. Jake rallies the Na’vi with the stirring cry “And we will show the Sky People that they cannot take whatever they want! And that this is our land!”

Economists may wonder about the claim that “Avatar” is the highest-grossing film of all time. The Hollywood Reporter estimates that so far it may only have sold half as many tickets as the 1997 “Titanic,” and Box Office Mojo says that adjusted for inflation “Gone with the Wind” remains the movie with the highest U.S. revenue, followed by “Star Wars.”

Wednesday Links

  • Even though the government is running massive deficits, interest rates and inflation are low. So, what’s the problem?

Supreme Court Wastes Time, Money, and Opportunity to Protect Property Rights and Due Process

Yesterday the Supreme Court released its first four opinions in cases argued this term, the latest first-opinion release in recent history.  The only one that interests me – and it’s not Justice Sotomayor’s maiden effort – is the civil forfeiture case, Alvarez v. Smith.

Civil forfeiture, the practice in which the police seize cars, money and other kinds of property that they say has some connection to crime, can raise various legal and policy issues — from property rights to due process.  The question in Alvarez was the basic one of whether people seeking to get their property back are entitled to a prompt hearing before a judge.

I blogged about the case here, and Cato adjunct scholar Ilya Somin wrote about it here. Cato’s also filed a brief in the case supporting the individuals whose property was seized.

Unfortunately, because all underlying disputes had been resolved by the time of oral argument – cars had been returned and the individuals have either forfeited their cash or accepted the state’s return of some of it – the Court determined the case to be moot.  It thus vacated the lower court’s opinion and remanded with instructions for that court to dismiss the case.

And that’s a shame.  While the dispute does seem to be moot with respect to the particular petitioners, this is obviously a situation “capable of repetition” but “evading review” – along the lines of that little-known case of Roe v. Wade.  That is, just like the case of a pregnant woman is moot within nine months, disputes over civil forfeiture get resolved one way or the other long before the slow turn of litigation reaches the Supreme Court.  By avoiding the merits of this case, the Court guarantees that the important constitutional questions presented by this case remain perpetually unresolved.

What is more, by vacating the Seventh Circuit’s opinion – an extraordinary remedy – the Court deprives Illinoisans of a well-reasoned and just ruling that could be used as precedent in future cases.  It also – and this is no small matter – wastes the time, effort, and resources of the parties and their attorneys, taxpayers (who obviously paid for the petitioners’ legal work here, as well as that of the judiciary), and, of course, amici (including Cato).

Justice Stevens was correct in his partial dissent: if the Court disagrees with the argument I made in the preceding paragraph, it should have applied the general rule against vacating judgments that have become moot because the parties settled.  The proper disposition here would have been to DIG the case – dismiss the writ of certiorari as improvidently granted (which allows the lower court ruling to remain on the books undisturbed).

A Victory for Property Rights

Ilya Shapiro warns us that the U.S. Supreme Court probably will not uphold property rights in a case involving Florida beachfront property.  But property rights did receive an unexpected boost in New York yesterday, where an appeals court overturned a taking for the benefit of Columbia University.

Reports the New York Times:

A New York appeals court ruled Thursday that the state could not use eminent domain on behalf of Columbia University to obtain parts of a 17-acre site in Upper Manhattan, setting back plans for a satellite campus at a time of discord over government power to acquire property.

In a 3-to-2 decision, a panel of the Appellate Division of State Supreme Court in Manhattan annulled the state’s 2008 decision to take property for the expansion project, saying that its condemnation procedure was unconstitutional.

The majority opinion was scathing in its appraisal of how the “scheme was hatched,” using terms like “sophistry” and “idiocy” in describing how the state went about declaring the neighborhood blighted, the main prerequisite for eminent domain.

The $6.3 billion expansion plan is not dead; an appeal has been promised, and Columbia still controls most of the land. But at a time when the government’s use of eminent domain on behalf of private interests has become increasingly controversial, the ruling was a boon for opponents.

“I feel unbelievable,” said Nicholas Sprayregen, the owner of several self-storage warehouses in the Manhattanville expansion area and one of two property owners who have refused to sell to the university. “I was always cautiously optimistic. But I was aware we were going against 50 years of unfair cases against property owners.”

New York state is not a particularly friendly venue to property rights, but the judges rightly saw through the claims made by state official to justify seizing property from a private person for the benefit of a private organization.  The ruling could be reversed, but nevertheless is an important affirmation that property rights warrant constitutional and legal protection even in New York.

Likely Supreme Court Tie Would Be a Loss to Property Owners

Today, the Supreme Court heard argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection, which is a Fifth Amendment Takings Clause challenge involving beachfront property (that I previously discussed here).

Essentially, Florida’s ”beach renourishment” program created more beach but deprived property owners of the rights they previously had – exclusive access to the water, unobstructed view, full ownership of land up to the “mean high water mark,” etc. That is, the court turned beachfront property into “beachview” property.  After the property owners successfully challenged this action, the Florida Supreme Court – “SCOFLA” for those who remember the Bush v. Gore imbroglio – reversed the lower court (and overturned 100 years of common property law), ruling that the state did not owe any compensation, or even a proper eminent domain hearing.

As Cato adjunct scholar and Pacific Legal Foundation senior staff attorney Timothy Sandefur noted in his excellent op-ed on the case in the National Law Journal, “[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless.”

I sat in on the arguments today and predict that the property owners will suffer a narrow 4-4 defeat.  That is, Justice Stevens recused himself – he owns beachfront property in a different part of Florida that is subject to the same renourishment program – and the other eight justices are likely to split evenly.  And a tie is a defeat in this case because it means the Court will summarily affirm the decision below without issuing an opinion or setting any precedent.

By my reckoning, Justice Scalia’s questioning lent support to the property owners’ position, as did Chief Justice Roberts’ (though he could rule in favor of the “judicial takings” doctrine in principle but perhaps rule for the government on a procedural technicality here).  Justice Alito was fairly quiet but is probably in the same category as the Chief Justice.  Justice Thomas was typically silent but can be counted on to support property rights.  With Justices Ginsburg, Breyer, and Sotomayor expressing pro-government positions, that leaves Justice Kennedy, unsurprisingly, as the swing vote.  Kennedy referred to the case as turning on a close question of state property law, which indicates his likely deference to SCOFLA.

For more analysis of the argument, see SCOTUSblog.  Cato filed an amicus brief supporting the land owners here, and earlier this week I recorded a Cato Podcast to that effect. Cato also recently filed a brief urging the Court to hear another case of eminent domain abuse in Florida, 480.00 Acres of Land v. United States.

More Trade News

My colleague Dan Griswold pointed out yesterday some unfortunate editing in the Washington Post. Here are a couple of other trade-related items in the news recently:

  • Sen. Max Baucus (D, MT and Chairman of the Senate Finance Committee) has seemingly thrown his weight behind the idea of “border measures” (i.e., carbon tariffs).  After paying the semi-obligatory lip service to the United States’ obligations under international trade law – and I say only “semi-obligatory” because some U.S. lawmakers appear not to care about it at all – Baucus goes on to deliver this rhetorical gem:

    I think often the United States has to lead,” Baucus said, noting that what lawmakers come up could be used as a model for other countries to copy.

    So the U.S. would saddle its consumers with higher prices in exchange for little benefit environmentally and in the process risk retaliation and alienating countries who it insists are necessary for global cooperation on climate change?

    Some leadership.

    And it may well be that the Chinese have the jump on the United States here, in any case. They’re proposing to introduce a carbon tax of their own, to prevent double-taxation in the form of carbon tariffs by the developed countries (banned under WTO rules) and to keep the carbon tax revenue – collected, remember, from U.S. consumers! – for themselves, all while seeming to play nice on climate change. I bet those who proposed carbon tariffs are sorry they spoke out now. (HT: Scott Lincicome)

  • Brazil has published a list of over 200 mostly consumer and agricultural goods that would be subject to retaliatory tariffs as part of the on-going dispute over U.S. cotton subsidies (an excellent backgrounder to that dispute is available here).

    I note with sorrow that the list also contains intermediate goods, which of course would mean saddling Brazilian manufacturers with higher prices. Even if the Brazilian government isn’t too concerned about  burdening its consumers with extra taxes, rarely a concern of politicians apparently, you’d think they would hesitate to impose higher costs on manufacturers, who employ people.

    Again, it is important to draw a distinction here between the mercantalist political logic of retaliatory tariffs and the economic insanity of increasing costs to your own people in “retaliation” for the harm another country’s policies have done to you. (And no, I don’t count the “game-theory” argument as an “economic” one here. That is a fancy way of saying that in an international relations, i.e. political, sense, retaliation can bring about the desired change.  I’m talking about the fact that costs to consumers from tariffs – whatever their rationale – far outweighing the benefits that producers derive from protection). But this latest development is a sign that Brazil is serious about getting the U.S. to reform its agricultural policies, something it should be doing anyway.

    Brazil was, it should be noted, given permission from the WTO to suspend intellectual property rights protections as a form of retaliation, a new but increasingly attractive way of exacting retribution, but only after a certain amount of damages had been collected the usual way.