Property Rights

Will the Supreme Court Hear the Columbia University Eminent Domain Case?


Cato Institute legal scholar Ilya Shapiro highlights a big feature story from The Columbia Daily Spectator, Columbia's undergraduate newspaper, on New York's controversial decision to use eminent domain on behalf of the elite private university. As Shapiro notes, the Supreme Court is discussing today whether or not to hear property owner Nick Sprayregen's lawsuit challenging the eminent domain taking, and a decision is expected as early as Monday.

At least four justices will have to vote yes if the full Court is going to take the case. Unfortunately, the liberal bloc will likely vote no. Justices Ruth Bader Ginsburg and Stephen Breyer both joined Justice John Paul Stevens' disgraceful majority opinion in Kelo v. City of New London (2005), so there's little reason to think they're interested in limiting or overturning that unfortunate eminent domain precedent now. As for the new faces, Justice Sonia Sotomayor has her own dubious record when it comes to protecting property rights in the Empire State, and as a self-professed fan of judicial restraint, Justice Elena Kagan may not want to subject New York's practices to much judicial scrutiny.

But that still leaves five possible yeses. Justice Clarence Thomas will definitely want another shot at curbing eminent domain abuse. His Kelo dissent predicted exactly the sort of government malfeasance we're now witnessing in both the Columbia and Atlantic Yards cases in New York. Justice Antonin Scalia also dissented in Kelo, though it's possible his sense of judicial restraint will prompt him to let the 2005 precedent stand. Let's hope not.

Chief Justice John Roberts also has a selective respect for precedent, though he did hint at a critical view of Kelo during his Senate confirmation hearings. Justice Samuel Alito, on the other hand, is almost certainly a yes vote. When the Supreme Court declined to review the Atlantic Yards land grab in 2008, Alito took the unusual step of noting that he would have granted review. No other member of the Court shared their vote, so Alito's eagerness to do so suggests a strong preference for correcting the Kelo mistake.

Finally we have Justice Anthony Kennedy. He of course joined the majority in Kelo. But he also wrote a concurring opinion that made it clear that Kelo was not a blank check. As Kennedy wrote, "Transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause." As I've previously reported, Columbia University and New York's Empire State Development Corporation actively colluded in order to game the state's eminent domain system, making Columbia the exact sort of "favored private entity" that Kennedy warned about in Kelo. He now has the chance to prove that his concurrence was more than just empty words.

Stay tuned.

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  1. “He now has to chance to prove that his concurrence was more than just empty words.”


  2. While Kennedy said Kelo isn’t a blank check, it’s going to be fun to see how the USSC walks back one of their worst decisions without making it too obvious.

  3. Ivy league judges ruling against Columbia. I’ll believe it when I see it.

  4. Columbia is having a bit of a tough week – drug dealing frat boys (I repeat myself) incest professors and stealing people’s property…

    1. The first two incidences should not be crimes.

    2. I missed the incest professors story. Do link.

      1. Seconded.

      2. My thesis advisor referred to the situation where universities hire their own PhD graduates as faculty as “inbreeding”, but I don’t think that’s the scandal referred to here.

        Maybe you should try googling a two word phrase such as “columbia incest”.

      3. Professor accused of 3-year sexual relationship with daughter

        Icky but still shouldn’t be illegal. If convicted, he could get up to four years.

        1. At first, I read that as “Professor accused of sexual relationship with 3-year-old daughter”, and I wanted to reach through the screen and grab you and ask what the hell was wrong with you.

        2. Devil’s Contrarian|1.5.10 @ 10:09PM|#

          Whoa, whoa, whoa! Back up a minute. Now I can see these “civil union” laws do say what Mr. Bailey says they say, but what’s with this part?

          * The couple may not be close family members. A woman may not enter into a civil union with her mother, grandmother, daughter, granddaughter, sister, brother’s daughter, sister’s daughter, father’s sister or mother’s sister. A man may not enter into a civil union with his father, grandfather, son, grandson, brother, brother’s son, sister’s son, father’s brother or mother’s brother;

          Question: why’s that in there? It’s not like any of these people can breed. This whole section of law is already contrary to the Bible, so that’s obviously not the source for this restriction either. Why can’t a dude legally marry–er, have a “civil union” with–his brother, or a dame with her sister? Or, you know, any of these people mentioned with each other?

          What’s up with that? What’s so wrong about incest if nobody involved is capable of making babies? Don’t tell me any fairy tales about the “ick factor” either: anything involving a guy’s cornhole is pretty icky by most people’s standards too, but you notice that didn’t stop those Vermont freaks from passing these laws.

          On what grounds did they include this law against gay incest? Do you guys agree with this? Inquiring minds want to know!

          Marshall Gill|1.6.10 @ 8:12AM|#

          Interesting point. I though the prohibition on incest was a result of things like the “Hapsburg Jawline” which I am certain none of us want to see.

          It is strange. If two consenting adults should be able to form a civil union, why not those who are related?

          Wisconsinite|1.6.10 @ 1:43PM|#

          Here as interesting piece of Wisconsin Law:

          (1) No marriage shall be contracted… between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.

          Edwin|1.7.10 @ 3:55PM|#

          only in the libertarian community will you find people arguing against anti-incest laws. Unfortunately it makes the rest of us sane libertarians look bad

          Devil’s Contrarian|1.8.10 @ 4:09AM|#

          only in the libertarian community will you find people arguing against anti-incest laws. Unfortunately it makes the rest of us sane libertarians look bad

          Maybe so, but what is your sane, libertarian argument for laws against gay incest? Gay incest won’t give kids the
          “Hapsburg Jawline” because there aren’t going to be any kids from it. Gay incest may be pretty icky, but so is a lot of sex that isn’t against the law. So why should it be outlawed?

          Edwin|1.8.10 @ 10:19AM|#


          Devil’s Contrarian|1.8.10 @ 5:45PM|#


          Meaning: “Ick! Ick! Ick!”

          If you can’t come up with anything better than that, you’ll have to admit the law against gay incest makes no sense. For that matter, no law against any form of incest that can’t make babies makes any sense.

          So, are you conceding defeat?

          jeffrey soreff|1.9.10 @ 1:22PM|#

          So, in your view the caps lock key is the essential part of a sane, libertarian argument?

          Stan|1.9.10 @ 3:53PM|#

          He probably thinks this is Southpark.

          “You know, we believe in equality for everybody, and tolerance, and all that gay stuff, but dude, **** you!”

          Typical “libertarian” absurdity; if you don’t like where your own logic is taking you, shout louder and swear at the guy who’s calling your bluff. It works at DU.

          Jocon307|1.10.10 @ 2:55AM|#

          Good point about gay incest. Of course the reason why it is there is because gays want society to imbue them with normalcy.

          Furthermore, I don’t like the idea of the Vermont judge changing custody as a punishment to the parent. I don’t see how that can stand.

          I will also add that I think that Pennsylvania ruling is a disgrace.

        3. The man’s full name is David Lester Epstein.

          My source suggests a “Sara Pepper Epstein” or maybe “Rebecca A.” or “Amy F. Epstein”:

          It also dug up what seems to be his MySpace page:

          The undated profile photograph on this little-used page shows him holding two young daughters at a carnival:


          Paranoid yet? Here’s hoping none of you people ever do anything to draw this much attention to yourself…

  5. So, what’s the libertarian solution to the holdout problem?

    Oh, you don’t have one. I forgot.

    Bulldoze the whole darned place, starting yesterday.

    1. I always thought the solution was “do what you can with what you own and keep your fucking nose out of other people’s business”.

      Those people aren’t “holdouts”. They’re property owners. And they have the same rights that Ivey League Fuckwits have.

      1. You are right, they have the “same rights”. I would have no problem with them calling for eminant domain to be used if they were attempting to build a similar project and needed to boot out the last few holdouts.

    2. I’m unclear how “the holdout problem” is a problem for anyone but Columbia. Maybe they should move, which is what any other private party would have to do if they want to expand but none of their neighbors want to sell. There’s probably some wide swaths of land available in New Jersey.

      1. So one stubborn jackass can force a project to move miles out in the middle of nowhere to the only places left that have large swathes of open land?

        If you can’t see how this is FAR from optimal in many more ways than one, you need to pull your head out of whatever hole you have stuck it in. Oh wait. Admitting such would be admitting that markets are not gods and don’t always get the best answer.

        It really is funny watching you guys trying to defend the more absurd results that markets produce.

        1. You continue to believe that “The Holy Project ™” has some intrinsic right to be completed.

          It doesn’t.

          And I’ve told you before how someone thinking of launching a “The Holy Project ™” can mitigate the risk.

        2. One stubbon jackass = property owner attempting to maintain his way of life or his means of earning a living.

          That’s like saying Rosa Parks insisting on sitting at the front of the bus was “one stubborn jackass” holding up the transit system because she wouldn’t just make it fucking easier for the bus driver and move to the back of the bus where her black ass belonged.

          You’re a real piece of work, Chad.

          1. Thank you, Paul. This is the perfect comparison. I shall use it in the future, and pretend I came up with it myself.

            1. Wrong: Rosa, via her stubborness, turned a bad situation into a good one. The holdout is doing the reverse, and moving a project to a far-away location where it is far from economically or social optimal from any rational person’s point of view.

              1. Given race relations in 1950s Montgomery, keeping blacks and whites separate probably was socially beneficial.

                It was of course a horrific abuse of individual rights, but you don’t seem terribly concerned about such trifles.

        3. “So one stubborn jackass can force a project to move miles out in the middle of nowhere to the only places left that have large swathes of open land?”

          Exactly. If some mom and pop store is in the way of Walmart, then Walmart is justified in colluding with the local government to destroy the value of that land and then force that mom and pop to sell its land to Walmart at artificially lowered prices so they can build another big box store and sell cheap Chinese crap there. For the good of the citizens of that town.

          Why should a private organization’s project be held up because of some selfish people who just want not to be uprooted and forcibly ejected from their land? Have we already forgotten the lessons in humility and social responsibility our ancestors taught to the Native Americans?

          The nerve of these property owners is ridiculous. Here in America, we stand by the principle that the powerful, wealthy, and politically-connected deserve better treatment under the law. Their dreams and goals are big dreams and goals, and bigger is always better.

          1. Frankly, I don’t think “your” land is inalienably yours. You did not create it, and it is only yours because they government says it is. They can change the terms of that deal any time they wish, so long as they do it fairly.

            1. That has to be a spoof. Chad is never that forthright and honest about his beliefs.

        4. I could understand your position if a decent premium on the actual market price of the property had been offered.
          An amount of money where the owners of those businesses being forced out still have money left after they moved elsewhere and had to advertise heavily to attract customers at their new location.

          But that is not the case here. Those people are being defrauded.

          1. “I could understand your position if a decent premium on the actual market price of the property had been offered.”

            Such should be required in any case involving eminant domain. The homeowners or businesses being moved should have their moving costs covered just like Columbia treats its own internally transferred employees, businesses should get an advertising budget, and everybody should get at least a $10,000 check just for the bother they had to go through.

            However, a holdout can certainly hold out for much more than this. Hypothetically, they could hold out for 99.9% of the expected profits or value that Columbia and its partners expect to gain from this venture.

            1. That isn’t the case here. Columbia had budgeted a total of 33 million to buy up the property it did not already own. That Spayregen guy alone owns 160,000 square feet, and the average sales price on Manhattan was a notch above 500 $/square feet.

          2. Excuse me, how can you “understand” under those circumstances? Your position is that a property owner doesn’t have the right to refuse sale to a well-connected private interest if the offer is higher than market value. That’s nearly as vomitous as Chad’s position.

            1. No, that is not my position. My position is that if eminent domain is applied at all (and the Columbia university scenario clearly does not qualify), the property owner should receive a decent premium on the market value, and in addition all costs related to the move should be reimbursed.

    3. the Columbia solution is to bang your daughter.

      1. I guess “offer the holdouts enough money for their property that it’s worth it to move” is too complicated. It’s not like Columbia has $6.5 billion in the bank or anything.

        1. That was supposed to be in reply to Chad. Why I’m even bothering is another issue entirely.

        2. It is “complicated”, precisely because the holdouts are monopolists and can charge a monopoly price.

          But ignorant libertarians just hate it when markets fail, so you just have to pretend they don’t.

          1. Yes, Chad believes that having a “The Holy Project ™” can transform an otherwise blameless property owner into a “Evil, Monocle-Wearing, Tophat Capped Monopolist ™”.

          2. Poor little Columbia. What’s a the little guy to do?

          3. So markets fail when sellers won’t sell for a they buyer’s preferred price? I can’t buy gas for $1 per gallon, but that’s not a market failure.

            1. You should be able to buy for $1 a gallon, but those stubborn jackasses won’t sell for that. So time for a little ED action.

            2. No, they won’t sell for the MARKET price, because they can hold out for more. In other words, your theory fails.

              1. Market price is up to the seller. When the supply is small and the demand is huge, prices go way up.

              2. No, they won’t sell for the MARKET price, because they can hold out for more. In other words, your theory fails.

                The market price is up to the seller.

                Do you take the same attitude towards women, Chad? “I took you out for a dinner at a nice restaurant, that’s the MARKET price for sex. You’re holding out for more just because you can, you monopolist! The government must force you to have sex with me, since it’s all part of my scientific logical plan!”

                1. Appraisers determine market prices for a property whose owner isn’t selling all the time. Property tax levees, damage estimates for lawsuits, insurance, etc.

                  1. Appraisers determine market prices for a property whose owner isn’t selling all the time. Property tax levees, damage estimates for lawsuits, insurance, etc.

                    They determine the notional market price, but it’s a formal not real determination: the owner has not agreed to sell at that price.

                    Of course most of the time the appraisers are pretty good at telling you what range you will actually be able to get, but that does not establish the value to the current owner.

                    1. Given that eminent domain is necessary for narrow purposes such as building roads and utility systems, it seems that there does have to be a more objective way of finding the value of a property than “whatever the owner claims to be willing to sell it for.”

                    2. Right, it’s necessary for literally narrow, i.e. long and thin purposes. You can almost always draw (heh) a distinction between proper use of ED and abuse of ED on the basis of geometry. Somebody trying to run a thin passage for someone or something thru an area, OK; someone trying to square off a big lot for a big box, NG.

                2. It’s funny how you guys just HAVE to believe that whatever some holdout monopolist is able to charge is the “market” price. Apparently, you guys don’t even understand your own theory.

              3. Chad, the market price is the price where the buyer and the seller come to agreement. That’s the definition. As long as the seller hasn’t agreed you haven’t offered the market price.

                All that the traffic will bear, Chad, all that the traffic will bear.

                1. The market price is only reached IF A LONG LIST OF ASSUMPTIONS IS TRUE.

                  In this case, at least one is completely and utterly false, as there is only one seller.

                  So yes, some price may be reached, but it is not a market price. It is an anti-competitive monopoly price.

          4. So if one of the neighbors wants to build an expansion onto the back of their own building, but part of Columbia University’s property is in the way, do you support the state swooping in and seizing Columbia’s property to enable TheProject to go forward?

            1. It would depend on the details of the case, Tulpa. But I certainly support their ability to ask for eminant domain to be used.

    4. So, what’s the libertarian solution to the holdout problem?

      Mo’ money.

    5. I think wherever Chad lives should be public green space. If he doesn’t like it and tries to hold out, we’ll just use eminent domain to steal his place from him and force him to move someplace else.

      We’ll take that place by eminent domain, too.

  6. Will the Supreme Court Hear the Columbia University Eminent Domain Case?

    If Columbia University has a “plan”, then no.

    1. It can’t be C.U.’s, it has to be a gov’t agency’s.

  7. Those of us who have faced the threat of eminent domain know two things: It is a sobering experience and much of it seems manufactured, as in the case of Columbia U. and Atlantic Yards.

    More “taking” is on its way in New York and Pennsylvania, thanks to the rising interest in natural gas drilling in the gas-rich Marcellus Shale.

    With more drilling comes more pipelines and more underground gas storage fields ? and that (pipelines & storage fields) always means eminent domain.

    Alexandra Klass, Associate Professor of Law at the University of Minnesota Law School, wrote an article in 2008 titled, “The Frontier of Eminent Domain.” She raises the question: “Why aren’t Kelo activists also incensed over natural resource development takings?”

    Indeed. The excellent Institute for Justice of Kelo fame declines to intervene in energy/utility “takings” because, they told me, of the “public good” premise.

    The Institute should reconsider what support it can offer in this expanding “market” for eminent domain abuse.

    The stories are horrendous; energy companies and utilities are no better than Columbia and Bruce Ratner.

    But property owners can fight back. Our two-year battle against Houston-based Spectra Energy which seized our property rights for an underground gas storage field led to the development of a website which has begun to attract whistle blowers inside the energy industry. If you want to understand the adverse effects of this type of eminent domain, read this post:
    Spectra Energy

    Or here:

    Spectra Energy’s facility has had operational problems from the start, has received two Notice of Violations for “unlawful conduct” related to emergency shutdowns and emissions at its storage field in Bedford County, PA. Reports of contaminated water supplies are on the rise since they began operations.

    The ripple effects of eminent domain are never over.

    1. Mike, the only takings issues that generate news coverage, publicity and donations to organizations like the “Institute for Justice” are those that can be headlined “Little Old Lady Loses Lifetime Home.” Nobody cares if someone’s unimproved land in the boonies is taken for a railroad, high-power transmission line or natural gas pipeline. Our industrial economy was built on that kind of taking — something the Kelo zealots seem unaware of.

  8. So, what’s the libertarian solution to the holdout problem?

    Offer more money, or find a workaround.

    Was that really so hard?

    Oh, wait- I forgot; you are in love with grandiose megaprojects which have been planned by omnipotent superior bureaucratic intellects who know better than some stinky peasant how much his property is worth, or what “society” would consider the most highly valued use of his land.

    1. No. There is a libertarian way to understand eminent domain, and that is as a tool to increase freedom rather than to decrease it. It’s abotu freedom of movement.

      A few years ago I was discussing this with Blay Tarnoff. Too many libertarians have the facile idea that liberty can be reduced to property, including ownership of one’s own body. This is not a very bad first approximation, but is inadequate to a serious understanding. So, for instance, what if someone has you locked in a room? You have unfettered access to our own body, so you can’t be said to have had your ownership of your body violated. But what about your freedom of movement? Same thing if someone parks a car at the curb across your driveway; hey, they’re just taking their bit of the public right of way, huh? But that person is doing it in a way that impairs your right of way.

      Eminent domain is the solution to problems like that and the problem someone always brings up about what happens in a supposedly free society when the landowners around you conspire to lock you in and charge you exorbitant amounts to enter & exit.

      The trick is to apply eminent domain just sufficiently to unblock access without unduly disturbing property. Sometimes that requires only an easement, sometimes it requires permanent occupation of a strip of land.

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