ALI-ABA Course of Study Condemnation 101: How To Prepare and Present an Eminent Domain Case January 8-10, 2009 Miami Beach, Florida

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1 387 ALI-ABA Course of Study Condemnation 101: How To Prepare and Present an Eminent Domain Case January 8-10, 2009 Miami Beach, Florida A Short History of Regulatory Takings Where We Have Been and What Are the Hot Issues of Today? By James S. Burling Pacific Legal Foundation Sacramento, California

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3 389 A SHORT HISTORY OF REGULATORY TAKINGS WHERE WE HAVE BEEN AND WHAT ARE THE HOT ISSUES OF TODAY 1 I. INTRODUCTION by James Burling 2 Are property rights the construct of an 18th Century moneyed elite? Is the doctrine of regulatory takings merely the result of Justice Holmes s rush to reach a result unfounded in the law? Is the state the best arbiter of who gets to use which property for what purpose? Alternatively, are property rights equal and essential to other liberties given ascendency during the enlightenment, recognition with the Revolution and universal application following the Civil War? Did Justice Holmes base his opinion in Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), on understandings articulated over a century earlier? And are rights in property independent of the state and are their essence defined by individual choice? The answers to these questions have champions on both sides. In any debate based largely on philosophical predilections, there is no definitive coup de grace argument for one side or the other. Yet, if a lawyer understands the nature of these questions, and the way the debate has been framed, it may help in better understanding the fundamental issues implicated in current controversies over property rights. The purpose of this paper is to highlight the history of property rights and the doctrine of regulatory takings and explain how that history informs the present day issues that garner the attention of land use attorneys today. This is not meant to be a comprehensive history references are provided to those that exist but more as an introduction to the debate. 1 The purpose of this outline is to provide a general overview of property and the issues surrounding the litigation of property rights. It is designed to be an introduction to the topic and is adapted from an outline presented at the Thirteenth Annual Advanced ALI-ABA Course of Study on Inverse Condemnation and Related Government Liability, April 12-14, 2007, Scottsdale, Arizona. 2 Director of Litigation, Pacific Legal Foundation, Sacramento, California. Pacific Legal Foundation is a nonprofit public interest legal foundation that defends property rights and economic liberties. For more information see -1-

4 390 II. THE ORIGINS OF PROPERTY The concept of property is as old as civilization itself, and all cultures with any degree of longevity have developed complex rules governing the acquisition, use, and transfer of property. 3 From the Law Code of Manu (circa 1500 B.C.), the Code of Hammurabi (circa 1780 B.C.), to the Bible and to the Koran, a common thread of civilization has been preservation of property. While some societies focused on the preservation and concentration of property in the hands of the ruling elite, as in the Brahmins with their Law Code of Manu, or the nobility and later the government of the proletariat in Russia, a more common pattern in modern times has been the expansion of rights of property ownership to the free individual. Indeed, western civilization s greatest legal minds often turned their attention to the development of private property, hypothesizing an evolution from a communal Golden Age exemplified by Adam and Eve in the Garden to the growth of private property mirroring the growth of cities and a more complex civilization. While variations on the myth of the Golden Age have few adherents today, it animated all the discourses on the subject from the 17th Century natural law philosophers through Marx. Thus Pufendorf, Grotius, and Locke wrote at length about the hypothesized evolution from common ownership to the development of principles of individual ownership through the development of agriculture. 4 Later philosophers such as Rousseau decried 3 A comprehensive treatment of the theory of property is well beyond the scope of this outline. For a very brief (but not comprehensive) outline of the history of property theory see James S. Burling, The Theory of Property and Why it Matters, American Law Institute - American Bar Association Continuing Legal Education January 8-10, 2004, Eminent Domain and Land Valuation Litigation, SJ051 ALI-ABA See, e.g., Pufendorf: But in the beginning all these things are understood to have been set out by God in the midst, as it were, of awn. so that they belonged no more to one than to another.... But later, when men had multiplied, and cultivation had come to be applied to the things from which food and clothing are produced for man, in order to avoid quarrels, and to introduce good order, even the substances of things were also divided among men, and to each his own portion was assigned. And this convention was added, that whatever in the first division of things was left common, could thereafter become the property of the first claimant. SAMUEL VON PUFENDORF, DE OFFICIO HOMINIS ET CIVIS JUXTA LEGEM NATURALEM LIBRI DUO(The Two Books on the Duty of Man and Citizen According to the Natural Law) (1682), Vol. 2, trans. by Frank Gardner Moore (1949), Chap. 12 (On Duty as Regards the Acquisition of Ownership); Hugo Grotius ( God had given all things, not to this or that individual, but to the human race.... Accordingly, it very soon became apparent, in regard to articles of the first class (for example, food and drink), that a certain form of proprietas was inseparable from use. For to be proprium is to be someone s in such a way that it cannot also be another s. ) HUGO GROTIUS, THE LAW OF WAR AND PEACE (De Jure Belli ac Pacis), (1625) trans. by Louise R. Loomis (1949), Book Two, Ch. II, Par. 3 at

5 391 this alleged creation of the institution with property 5 and Marx infused the Golden Age myth with a patina of anthropological science suggesting that property was but an intermediate step to communist utopia. 6 The most enduring legacy of the early Natural Law philosophers was the development of a natural law theory of property and rights. No one has had a more long-lasting influence than John 5 6 The first person who, having enclosed a plot of land, took it into his head to say this is mine and found people simple enough to believe him, was the true founder of civil society.... What crimes, wars, murders, what miseries and horrors would the human race have been spared, had someone pulled up the stakes or filled in the ditch and cried out to his fellow men: Do not listen to this imposter. You are lost if you forget that the fruits of this earth belong to all and the earth to no one! Jean-Jacques Rousseau, Discourse on the Origin of Inequality. August von Haxthausen ( ) discovered common ownership of land in Russia, Georg Ludwig von Maurer proved it to be the social foundation from which all Teutonic races started in history, and, by and by, village communities were found to be, or to have been, the primitive form of society everywhere from India to Ireland. The inner organization of this primitive communistic society was laid bare, in its typical form, by Lewis Henry Morgan s ( ) crowning discovery of the true nature of the gens and its relation to the tribe. Karl Marx, COMMUNIST MANIFESTO, n.2 (1848). Anthropologically speaking, this is considered utter nonsense today. See, e.g., Richard Pipes, PROPERTY AND FREEDOM 116 (1999) ( The notion of primitive communism has no basis in fact: it is simply the ancient and, apparently, indestructible myth of the Golden Age dressed up in modern pseudo-scientific language. Anthropology has no knowledge of societies ignorant of property rights: in the words of E.A. Hoebel... property is as ubiquitous as man, a part of the basic fabric of all society. ). -3-