Dreaming of Don Shula

My favorite team growing up was the Miami Dolphins … until they fired Don Shula in 1995, a decision that will live in infamy. In honor of the legendary Don Shula, the greatest coach in North American football history, the Miami Dolphins should bring back their old uniforms. Rest in peace 🐬 🏈 …

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Property rights in a pandemic

As a public service, below is a chronological and thematic compilation of my myriad blog posts relating to “the takings clause in the coronavirus age”:

Black-letter takings law:

  1. Property rights and the pandemic (April 21, 2020)
  2. Kelo and the coronavirus (April 27, 2020)
  3. Justice Holmes to the rescue (May 6, 2020)
  4. Kelo and the coronavirus, part 2 (May 6, 2020)
  5. Temporary takings (May 7, 2020).

Public policy and moral theory:

  1. My natural rights approach to coronavirus lockdowns (March 24, 2020)
  2. A takings model of the economic shutdown (March 25, 2020)
  3. How much? (March 26, 2020)
  4. Who pays? (March 27, 2020
  5. A property-rights approach to the pandemic (April 2, 2020)

Miscellany:

  1. Somin v. Guerra-Pujol, Round 1 (March 29, 2020)
  2. Somin v. Guerra-Pujol, round 2 (March 30, 2020)
  3. Somin v. Guerra-Pujol, round 3 (March 30, 2020)
  4. Handouts versus property rights, featuring a funny remix of the song “Savage” by Megan Thee Stallion (April 22, 2020)
  5. Free Shelley Luther! (May 7, 2020)

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Any questions?

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Political fan art

I featured a beautiful example of musical fan art in my previous post, and I have also explored the law and economics of literary fan art in one of my previous papers. Here, I would like to feature some “political fan art.” This poster of Dr Anthony Fauci (the only member of the president’s task force who I trust, by the way) is modelled after the famous 2008 “Hope” campaign poster featuring then-presidential candidate Barack Obama. Let’s just hope Dr Fauci doesn’t let us down the way Trump has!

Dr Fauci.png

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Musical fan art

I have written about “literary fan art” (check out my NYU law review article here), arguing that such forms of fan art are fair uses, but what about musical fan art (like the Japanese version of the song “Say So,” which I can’t get out of my head!)? Music industry suits (or as my friend and colleague Brian Frye would call them, “landlords”) would like us to believe that sampling and other unauthorized performances of copyrighted songs is illegal under copyright law, but the landlords/suits are wrong. As my friend and colleague Mike Schuster has shown, such practices expand the market for the original song. More details about the Japanese version of the song “Say So”–and Doja Cat’s priceless reaction when she heard it for the first time–are available here.

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Two cheers for the KBO!

KBO stands for the Korean Baseball Organization. ESPN2 is televising live ball games from the Korean peninsula, and I’m loving it!

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Takings as tort: what is the optimal level of public theft?

By public theft, I mean the common practice of all governments, small or large, to grab a chunk of our incomes (via taxes) or interfere with our property rights (via zoning and myriad regulations). Of course, the optimal level is not zero. At the very least, we need police to protect our safety and courts to protect our rights, and cops and judges do not usually work for free.

Moreover, the optimal level of public theft, whatever it is, is probably even higher when there is a “global pandemic.” But at the same time, the optimal level cannot be complete and indiscriminate confiscation, especially when face masks are readily available, right? I have been blogging about the takings clause in the coronavirus age since March of this year, and in reply to one of my posts, my good friend and legal colleague Salvador J. Antonetti makes the following excellent point (ellipsis in the original):

“Conceptually, the problem is that ‘government’ means all of us, so yes, we’d be paying ourselves, but then getting the funds to make those payments by … levying taxes on ourselves. All of us would be on both ends of the process. It’d be an endless circle that ends in a wash. I’m betting that no court will find that that’s what the Takings Clause requires.”

This conceptual argument offers the best refutation of my takings theory by far, but couldn’t the same be said about the trillions of dollars the Congress is currently spending to provide partial relief to non-essential business firms and employees? (Again, this is not a rhetorical question!) My deeper point is that if we are going to close down certain places in the name of public health, then the owners of those places are legally and morally entitled to just compensation—not as a matter of charity or loans or bailouts but as a matter of right.

Consider, for example, the following thought experiment. What if a government had issued a lockdown order in normal (non-pandemic) times? Would anyone doubt that such an order constituted a taking? So, why should the presence of a health emergency change our analysis of the takings clause?

To conclude, consider a different conceptual model of these pandemic lockdowns, one based on the case of Vincent v. Lake Erie Transportation Co., a famous torts case that is known to all first-year law students. The facts of this famous case are as follows: The crew of a steamship had tied their vessel against a private dock to avoid a bad storm. Although they were able to save their ship, it damaged the dock during the storm. The owner of the dock then sued the steamship owner to recover the damages to the dock, and the court ruled for the dock owner.

Conceptually speaking, how are the facts in this classic case any different from what local and state governments are doing to “non-essential” business firms when they close them down completely to stop the spread of a contagious virus? The government is, in essence, inflicting enormous economic losses on these firms for the greater good, right? Notice that I am not questioning the cost-benefit logic of these lockdown orders, and like a good Bayesian, I am willing to admit I might be wrong, so change my mind!

How do you lose property rights over something

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Temporary Takings

Let’s resume my series of blog posts on the takings clause in the coronavirus age. The one case to consider whether a coronavirus lockdown order constitutes a “taking” is the case of Friends of Danny DeVito v. Governor Wolf, available here, which was quickly decided by the Pennsylvania Supreme Court on April 13, 2020. (No, not that Danny DeVito! The DeVito in this case was a candidate running for local office. Because his campaign office was not an essential or “life-sustaining” organization under Governor Wolf’s order, it had to close down. In addition, a laundry, a golf course, a real estate office, and a private citizen joined the lawsuit on the plaintiffs’ side.)

In this recent case, the five plaintiffs challenged the constitutionality of a statewide executive order shutting down all “non-life-sustaining” business firms in the Commonwealth of Pennsylvania. (But are courts of law “life-sustaining” operations? The entire text of Governor Tom Wolf’s Executive Order is reprinted on pp. 5-7 of the court’s opinion.) The plaintiffs challenged the governor’s order on various constitutional grounds, but for brevity’s sake, I will focus on their takings claims here.

In brief, the Pennsylvania Supreme Court, erroneously in my view, dismissed the plaintiffs’ takings claim because Governor Wolf’s order was a temporary measure. The court reasoned as follows (p. 37):

“The Executive Order results in only a temporary loss of the use of the Petitioners’ business premises, and the Governor’s reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power ….”

But with all due respect to the learned judges, whether a given taking is temporary or permanent is irrelevant. Why? Because it is not the temporal duration of the taking that matters but rather the magnitude of the economic loss suffered by the property owner. In other words, even a temporary regulatory taking is a “taking” requiring just compensation if the property owner can pass the Penn Central test. (For a scholarly treatment of the law of temporary takings, see this excellent paper by Daniel Siegel and Robert Meltz.)

Admittedly, the Penn Central test is a hard test to pass, but alas, the court in the “Friends of Danny DeVito” case did not even bother to go through or apply the Penn Central factors. Assuming the plaintiffs in this case could have proved a significant decline in revenues after Governor Wolf’s order went into effect, then they would have had a strong takings claim, even though the executive order was only a temporary one. Simply put, the closer to zero their revenues post-lockdown, the stronger their case.

In my view, the plaintiffs in the “Friends of Danny DeVito” case made a strategic error when they brought their lawsuit, like when the great Magnus Carlsen moved his pawn to the h5 square in his second rapid game against Ding Liren last month. The plaintiffs were not really suing for compensation. Instead, they wanted the courts to strike down Governor Wolf’s order altogether. This move was a strategic blunder because there is no legal doubt that state governments have broad “police powers” to protect the health, safety, and morals of their citizens and residents.

What if one of the other plaintiffs, like the laundry or the golf course, had brought their own separate lawsuit, and what if they had only sued for “just compensation” instead of trying to strike down the governor’s order altogether? Would the outcome have been different?

Screen Shot 2020-05-07 at 11.24.02 AM

Move along … nothing to see here!

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