Please add this one to your podcast listening queue: the latest episode of Bound by Oath, produced by John Ross at the Institute for Justice. BBO isn’t a typical podcast, but more of an audio documentary as we have noted before. If you aren’t a subscriber, you really should be.
This episode focuses on regulatory takings, and the sleight-of-law that governments frequently employ to avoid the merits of takings claims, or perhaps worse yet to avoid paying compensation even after ordered to. Cases detailed include DeVillier, Agins, First English, Violet Dock Port, Ariyan. This episode is a great companion piece to BBO‘s episodes on Euclid (zoning), Pennsylvania Coal (reg takings), and Berman (Public Use).
Put on your “self-executing” hat and take a listen!
Here’s the description of the episode:
The Fifth Amendment says that the government must pay just compensation when it takes private property for public use, a command that, regrettably, is often treated as a mere suggestion. On this episode, we take a look at a variety of gambits and flim-flammeries that let the government take property without paying for it.
Featuring Michael Berger, Bob McNamara, and Professor Gideon Kanner. A special hat tip to John Ross for capturing Professor Kanner’s final interview. It is really good to hear his voice again.
Trigger warning: you may get a bit chapped listening to this episode because many of the tactics discussed are so outrageous. And yes, there are some great sound bytes there where it looks like the judges are giving government counsel a justifiably hard time.
But remember: in the end, much of the oral argument fireworks are tales of sound and fury, signifying nothing. Why do we conclude that? Compare the judges’ questions in oral argument with the outcome in their opinions, and we think you’ll agree. From Devillier to Ariyan to Agins, despite sounding tough in arguments, the courts end up shrugging their shoulders. In DeVillier for example, the Court should have torn Texas a new one for employing a transparently cynical switch-in-time that at best wasted everyone’s time. But as we know, the Court unanimously let Texas off the hook (enough so that it claimed to have won the case, and in the process gave other government advocates a blueprint to play the same games, and the green light to keep at it.
As long as courts continue to do that, instead of actually putting some force behind their finger-wagging oral argument questions, nothing will change.