Here's your must-read for today, the latest journal article from Michael Berger, "Theft, Extortion, and the Constitution: Land Use Practice Needs an Ethical Infusion," 38 Touro L. Rev. 755 (2022).
Here's the Abstract:
There are many ways in which property owners/developers interact with regulators. To the extent that texts and articles deal with the ethical duties of the regulators, they tend to focus on things like conflicts of interest. But there is more. This article will examine numerous other ways in which regulators may run afoul of ethical practice in dealing with those whom they regulate.
And if that isn't enough to grab you, there's this:
There may be more to the issue than how to act in narrow circumstances. For one thing, there is the idea that government and the governed need to deal with each other on a level playing field. As one court put it:
It has been aptly said: “If we say with Mr. Justice Holmes, ‘Men must turn square corners when they deal with the Government,’ it is hard to see why the government should not be held to a like standard of rectangular rectitude when dealing with its citizens.”Moreover, there are some peculiarly land use related questions that have a core of ethical content and that receive too little attention as ethical issues. For example, as the U.S. Supreme Court once put it, in explaining the need for just compensation when private property is taken for public use:[t]he political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice.So, there is at least one parameter: ethics is a part of the Fifth Amendment, and it prohibits “confiscation” of private property. That seems a good place to start. This article will highlight a few of the larger ethical issues stemming from that beginning.Id. at 756-757 (footnotes omitted).
Be sure to check it out.
