After the reading below, I have a high degree of confidence that I've
arrived at not only a defensible conclusion, but quite clearly the correct
one, as case law now stands.
I feel sufficiently comfortable with the conclusion that I'd be willing to
sign my name to them in an appellate brief or a law review article, once I
reduced the case excerpts and detailed arguments to a polished form. For me,
that represents a lofty level of confidence. When I publish something, I
don't ever want to have to respond to a reader who points out something that
seriously undermines my conclusions and that I missed in my research. I'm to
the point that I would have no reason to fear an opposing party or a
pre-publication reviewer or a post-publication reader calling my attention
to something I overlooked that really shifts the balance of the arguments,
or the weight of authority.
--
Bob Woolley
St. Paul, MN
[EMAIL PROTECTED]
"Restriction of free thought and free speech is the most dangerous of
all subversions. It is the one un-American act that could most easily
defeat us."
-- Justice William O. Douglas
------ Forwarded Message
From: Robert Woolley <[EMAIL PROTECTED]>
Date: Tue, 09 Aug 2005 01:57:31 -0500
To: <[EMAIL PROTECTED]>
Subject: my conclusion
I spent most of today finishing my reading on takings law as it relates to a
loss of the "right to exclude," which is the basis of the churches'
argument. This has included all of the relevant US supreme court cases, a
good smattering of various state supreme court and federal appellate cases,
several law journal articles, and chapters in treatises on constitutional
law and property law.
The result: I am even more convinced than before that the churches' claim on
this point is exceptionally weak.
Minor intrusions on a property owner's right to exclude others on whatever
grounds he wishes are really very common, and do not constitute a "taking"
under the 5th and 14th amendments. Nor is there are good reason to think
that the MN constitution's eminent domain provision should be read any more
extensively than the federal one. State supreme court cases holding that
states can infringe, by regulation, private property owners' right to
exclude, without constituting a "taking" by the government, reach back to at
least 1880.
One law review summed it up succinctly and, as far as I can tell,
accurately: "The courts have seldom, if ever, awarded compensation in a land
case that could not be characterized as a taking of all of a right, usually
to exclude or to profit." David A. Westbrook, ADMINISTRATIVE TAKINGS: A
REALIST PERSPECTIVE ON THE PRACTICE AND THEORY OF REGULATORY TAKINGS CASES
74 Notre Dame L. Rev. 717, 759
March, 1999
Court cases frequently speak of a "wholesale" loss of the right to exclude
others as being compensable under a takings analysis. Small degrees of
infringement on that right, when property is held out as being open to the
public (whether or not for profit) are constitutionally trivial. It is only
when the government requires private property to be opened to the public
that the loss of the right to exclude others is "wholesale," and thus a
taking under the 5th amendment.
Class dismissed.
--
Bob Woolley
St. Paul, MN
[EMAIL PROTECTED]
"War is an ugly thing, but not the ugliest of things. The decayed and
degraded state of moral and patriotic feeling, which thinks that nothing is
worth war, is much worse. The person who has nothing for which he is willing
to fight, nothing which is more important than his own personal safety, is a
miserable creature and has no chance of being free unless made and kept so
by the exertions of better men than himself."
-- John Stuart Mill
------ End of Forwarded Message
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