Copyright (c) 2009 All rights reserved. http://works.bepress.com/christopher_serkin Recent documents in Christopher Serkin en-us Sun, 31 May 2009 04:26:46 PDT 3600 http://works.bepress.com/christopher_serkin/10 http://works.bepress.com/christopher_serkin/10 Thu, 26 Feb 2009 11:29:06 PST Christopher Serkin http://works.bepress.com/christopher_serkin/9 http://works.bepress.com/christopher_serkin/9 Wed, 18 Feb 2009 07:15:16 PST Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply strict scrutiny to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act's extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should not give religious assemblies any extraordinary ability to resist condemnation. We offer two principal reasons for this proposal. First, the political economy surrounding condemnation is markedly different from that of zoning, so that broadening the law's protections beyond zoning to cover outright takings would be unnecessary and ineffective. Second, the costs of presumptively exempting congregations from condemnation are likely to be far higher than the costs of applying strict scrutiny to zoning. In conclusion, we identify an important implication of our argument for the law's core zoning provision - namely, our proposal invites local governments to circumvent RLUIPA by simply condemning religious property that they find difficult to zone because of the Act. On the one hand, this gives local governments a needed safety valve while, on the other hand, requiring them to pay just compensation to religious groups. Our proposal therefore suggests a powerful compromise. Christopher Serkin Land Use Planning Religion http://works.bepress.com/christopher_serkin/8 http://works.bepress.com/christopher_serkin/8 Tue, 17 Feb 2009 09:14:45 PST This Article identifies the various ways in which property law provides special protection for existing uses, explores the possible justifications for this protection, and argues that none of them support the strong protection that existing uses currently enjoy. Various land use doctrines, from zoning, to the vested rights doctrine, to amortization rules for prior non-conforming uses, all assume that the government cannot eliminate existing uses without paying compensation. The Article asks whether this result is compelled either by constitutional rules or by normative considerations. Neither the Takings Clause nor the Due Process Clause requires this level of protection for existing uses. Normatively, many of the obvious-seeming justifications dissolve on closer inspection. Concerns about reliance on government regulations, and underlying principles of fairness, are not conceptually different for regulations prohibiting future uses and regulations of existing uses. Nor is the extent of economic loss necessarily greater for one than the other, even though regulations of existing uses involve out-of-pocket costs, whereas regulations of future uses implicate forgone profits. In fact, none of the possible explanations for the special treatment of existing uses actually justifies their protection. This Article ultimately concludes that existing uses should not be entitled to any special judicial protection but instead should be subject to the same takings and due process analysis that applies to all regulations and government actions. Christopher Serkin Land Use Planning Property-Personal and Real http://works.bepress.com/christopher_serkin/7 http://works.bepress.com/christopher_serkin/7 Thu, 18 Oct 2007 08:27:33 PDT Whatever happened to the study of restitution? Once a core private law subject along with property, torts and contracts, restitution has receded from American legal scholarship. Hanoch Dagan's book "Unjust Enrichment: A Study of Private Law and Public Values" threatens to reverse the tide and make restitution interesting again. The book shows how we can examine commonplace words such as "value" and "gain" to extract the core social values embedded in the private law. The technicalities of unjust enrichment reveal compelling stories about property, personhood, and national ethos. In our review, we put Dagan's jurisprudential approach to the practical test of explaining restitution in postsocialist societies. We focus on Eastern Europe, where the Czechs put elderly people back in their childhood apartments, while the Hungarians offered compensation coupons for use in privatization auctions. Dagan's theory provides some order for the hodgepodge of national mythmaking, political accident, and cultural posturing that has surrounded the postsocialist restitution frenzy. His framework suggests some surprising insights, for example, that more aggressive restitution may prove less protective of private property rights. In turn, the Eastern European experience challenges Dagan's portrayal of the feel-good ethos of sharing by suggesting a more troubling take on the meaning of community. Christopher Serkin Chronology http://works.bepress.com/christopher_serkin/6 http://works.bepress.com/christopher_serkin/6 Thu, 18 Oct 2007 08:17:21 PDT Christopher Serkin Chronology http://works.bepress.com/christopher_serkin/5 http://works.bepress.com/christopher_serkin/5 Thu, 18 Oct 2007 08:13:44 PDT Christopher Serkin Chronology http://works.bepress.com/christopher_serkin/4 http://works.bepress.com/christopher_serkin/4 Thu, 18 Oct 2007 08:01:40 PDT The Fifth Amendment's public use requirement - a dead letter for decades - has recently been resurrected by the Michigan Supreme Court, overruling Poletown, and by the United States Supreme Court, granting certiorari in Kelo v. City of New London. At issue in these cases is the government's ability to condemn property from one private property owner and retransfer it to another, usually with a justification of more-or-less indirect economic benefits to the community. This Essay first argues the legitimacy of these government actions exists on a spectrum from true public uses, to public ruses that primarily benefit private interests but have some benefit to the public, to naked transfers that appear to be nothing but giveaways. This Essay argues, however, that the key to resolving these condemn-and-retransfer cases is not injunctive relief but instead a flexible approach to compensation. In particular, the Essay proposes valuing property taken for a public ruse using the government's own economic assumptions about this effect of the condemn-and-retransfer scheme, thus increasing compensation for the property owner and also increasing the government's incentive to make realistic economic predictions. For naked transfers, the Essay proposes gain-based compensation in order to put the government to the test that the condemnation will actually create some surplus public benefit. Ultimately, liability rule protection provides a better solution than property rule protection for condemn-and-retransfer cases. Christopher Serkin Chronology http://works.bepress.com/christopher_serkin/3 http://works.bepress.com/christopher_serkin/3 Thu, 18 Oct 2007 07:48:55 PDT Despite all the attention focused on the Takings Clause in recent years, the remedy for government takings of private property has been largely ignored. This Article examines different approaches to valuing takings. Until now, takings scholarship has focused primarily on the liability question: What government actions count as takings of private property? The remedy question, however, is equally important to the Fifth Amendment's protection of private property: When the government takes property, how should just compensation be assessed? It is settled law that compensation for takings is measured by the fair market value of the property taken, but this standard hides a number of important decisions - what the Article dubs valuation mechanisms - that can dramatically alter a property owner's recovery. These include, among others, choosing whether to value the property by the owner's loss or the government's gain; allocating development risk between the government and the property owner; and selecting a valuation date for the property. This Article identifies nine separate valuation mechanisms, examines their application in the case law, and argues that their application corresponds to different, substantive takings theories. Christopher Serkin Chronology http://works.bepress.com/christopher_serkin/2 http://works.bepress.com/christopher_serkin/2 Thu, 18 Oct 2007 07:45:41 PDT This Article argues that the Fifth Amendment's Takings Clause should apply differently to local governments than to higher levels of government. The Takings Clause is at the heart an increasingly contentious property rights debate. On one side are property-rights advocates who argue for expanding government liability for takings of private property. On the other are proponents of deference to government regulation. More often than not, the terms of the debate have focused on a traditional economic account of the Takings Clause. Property-rights advocates argue that expanding the compensation requirement is necessary to force the government to internalize the costs of its actions, ensuring that regulations will occur only where benefits exceed costs. Others, however, argue that governments respond to political and not monetary costs so that a compensation requirement will not influence government decision-making in any predictable way. Public choice theorists, in particular, argue that regulations are more likely to result from special interest group rent-seeking, while costs are passed on to taxpayers generally. Where the public choice theory critique applies, compensation will not serve as a meaningful check on regulatory incentives. This Article argues that the strength of the public choice critique rises and falls with the level of government. Local governments are largely majoritarian and specifically responsive to local homeowners. Because local governments also receive most of their revenue from local property taxes, forcing local governments to compensate under the Takings Clause will, in fact, force them to internalize the costs of their actions. However, local governments' regulatory incentives are subject to their own specific distortions. Local governments are risk averse so that the prospect of a large takings judgment may over-deter them from acting. Local government regulations also tend to impose significant positive and negative externalities on neighboring communities. This Article therefore proposes (1) ratcheting down compensation for takings by local governments to account for their risk aversion, and (2) creating a form of inter-governmental liability to allow local governments to capture the positive externalities of their actions and force them to pay for the negative externalities. Christopher Serkin Chronology http://works.bepress.com/christopher_serkin/1 http://works.bepress.com/christopher_serkin/1 Thu, 18 Oct 2007 07:38:55 PDT This Article proposes that local governments should be able to decide for themselves how to protect private property, and then be held to that choice as if it were a local constitutional pre-commitment. Specifically, the Article proposes state enabling legislation to create a mechanism for local pre-commitments around the most contested takings and land use issues, like the meaning of public use, the extent of just compensation, the diminution of value that triggers compensation, and others. The resulting local variation in property regimes would allow consumers - homeowners, developers, and any other property owners - to select the property protection they want by choosing where to live and invest. It would also allow local governments to use variation in property protection as a basis for inter-local competition. Implicit in this proposal is a view of property protection as a tool for attracting investment. Given the opportunity, local governments should offer property protection when the costs of that protection - in the form of increased compensation and decreased flexibility - are less than the benefits from increased investment. This cost-benefit calculus will apply differently depending on the characteristics and priorities of particular local governments. Christopher Serkin Chronology