RE: Re: Re: Regional planning and property rights
I'm back to visit. How is everybody doing? I come back and you attack my beloved Takings Clause. What else have I missed? The concept of compensation for takings by eminent domain goes back to at least Roman times and I assume is generally uncontroversial as a general principle. Now, if the State decides not to actually use its power of eminent domain for a public end, but instead uses its regulatory powers to achieve the same end, and the consequence for the property owner is exactly the same as if the property was taken by eminent domain, why would not compensation be required. Is not the distinction merely formal? The Supreme Court decision dealt with a procedural question -- whether an interim moratorium on development pending a final decision is a per se taking or a balancing act is required. As is the habit of the modern Supreme Court, they like balancing tests, which gives judges discretion and encourages litigation, and which necessarily benefits the party with more wealth who is more able to finance litigation. In the area of land-use, such a circumstances almost always benefits the State as against individual landowners. An unfortunate result. David Shemano
RE: Re: Re: Re: Regional planning and property rights
alot of this stuff about absolute property rights has its intellectual underpinnings in John Locke, who saw property rights as existing in -- and therefore morally justified by -- the "state of nature," i.e., before the creation of a state. Of course the real-world underpinning is simple greed. -- JD -Original Message- From: Ian Murray To: [EMAIL PROTECTED] Sent: 4/24/02 8:39 PM Subject: [PEN-L:25392] Re: Re: Re: Regional planning and property rights - Original Message - From: <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Wednesday, April 24, 2002 8:02 PM Subject: [PEN-L:25390] Re: Re: Regional planning and property rights > The American Law on "takings" is a Frankinsteinian abortion of > distorted thinking that is spreading its tentacles beyond the US > into other countries by the extraterritoriality of US law. The idea > that property rights extends to the incorporation of expected profits > in perpetuity is a US phantamasma born only in the minds of US > perverted judges appointed by special interest property rights > owners. It has little (actually no) basis in historic economic > thought and the thought that the US could unilitaterally impose this > stupid interpretation of property law not only on its close economic > partners, such as Canada, but on the world, is obscene. That of > course, does not suggest that the US will not inflict its obscene > ideology on the rest of us. So what do we do? say? > > Paul Phillips, > Economics, > University of Manitoba Blame Thomas Cooley. "The limit...in these cases must be this: the regulations must have reference to the comfort, safety or welfare of society;...they must not, under pretence of regulation, take from the corporation any of the essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise." ['Constitutional Limitations', 1868] For a detailed look at how the doctrine was woven into economic thought and the shaping of the Institutionalist critiques of same one need only have a look at John Commons' 'The Legal Foundations of Capitalism.' International trade law has yet to have it's Morris Cohen and Robert Hale. Ian
Re: Re: Re: Re: Regional planning and property rights
Greider ("The Right and US Trade Law: Invalidating the 20th Century", The
Nation, October 15, 2001) clarified all this very nicely.
Bill
Ian Murray wrote:
>
> - Original Message -
> From: <[EMAIL PROTECTED]>
> To: <[EMAIL PROTECTED]>
> Sent: Wednesday, April 24, 2002 8:02 PM
> Subject: [PEN-L:25390] Re: Re: Regional planning and property rights
>
> > The American Law on "takings" is a Frankinsteinian abortion of
> > distorted thinking that is spreading its tentacles beyond the US
> > into other countries by the extraterritoriality of US law. The idea
> > that property rights extends to the incorporation of expected profits
> > in perpetuity is a US phantamasma born only in the minds of US
> > perverted judges appointed by special interest property rights
> > owners. It has little (actually no) basis in historic economic
> > thought and the thought that the US could unilitaterally impose this
> > stupid interpretation of property law not only on its close economic
> > partners, such as Canada, but on the world, is obscene. That of
> > course, does not suggest that the US will not inflict its obscene
> > ideology on the rest of us. So what do we do? say?
> >
> > Paul Phillips,
> > Economics,
> > University of Manitoba
>
>
>
> Blame Thomas Cooley.
>
> "The limit...in these cases must be this: the regulations must have reference to
> the comfort, safety or welfare of society;...they must not, under pretence of
> regulation, take from the corporation any of the essential rights and privileges
> which the charter confers. In short, they must be police regulations in fact, and
> not amendments of the charter in curtailment of the corporate franchise."
> ['Constitutional Limitations', 1868]
>
> For a detailed look at how the doctrine was woven into economic thought and the
> shaping of the Institutionalist critiques of same one need only have a look at John
> Commons' 'The Legal Foundations of Capitalism.'
>
> International trade law has yet to have it's Morris Cohen and Robert Hale.
>
> Ian
Re: Re: Re: Regional planning and property rights
- Original Message - From: <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Wednesday, April 24, 2002 8:02 PM Subject: [PEN-L:25390] Re: Re: Regional planning and property rights > The American Law on "takings" is a Frankinsteinian abortion of > distorted thinking that is spreading its tentacles beyond the US > into other countries by the extraterritoriality of US law. The idea > that property rights extends to the incorporation of expected profits > in perpetuity is a US phantamasma born only in the minds of US > perverted judges appointed by special interest property rights > owners. It has little (actually no) basis in historic economic > thought and the thought that the US could unilitaterally impose this > stupid interpretation of property law not only on its close economic > partners, such as Canada, but on the world, is obscene. That of > course, does not suggest that the US will not inflict its obscene > ideology on the rest of us. So what do we do? say? > > Paul Phillips, > Economics, > University of Manitoba Blame Thomas Cooley. "The limit...in these cases must be this: the regulations must have reference to the comfort, safety or welfare of society;...they must not, under pretence of regulation, take from the corporation any of the essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise." ['Constitutional Limitations', 1868] For a detailed look at how the doctrine was woven into economic thought and the shaping of the Institutionalist critiques of same one need only have a look at John Commons' 'The Legal Foundations of Capitalism.' International trade law has yet to have it's Morris Cohen and Robert Hale. Ian
