Vol. 9 No. 3 (March 1999) pp. 113-115.

 ENVIRONMENT, PROPERTY AND THE LAW: FEDERAL AND STATE DECISIONS AND JOURNAL ARTICLES by Ronald Rosenberg (editor). New York: Garland Publishing Inc, 1997. 3 volumes (1192 pages). Cloth $225.00. ISBN 0-8153-2696-3.

 Reviewed by Dr. Elizabeth Fisher, Faculty of Law, University of Southampton.

 In the recent Australian comedy film The Castle, the Australian Federal government attempts to compulsory acquire a suburban house for the expansion of an airport. It is a case of the conflict between liberal private property rights and the public interest in having a better airport. The family, who adore their cosy urban home – their "castle", get their incompetent local lawyer, who has no knowledge of constitutional law (and is unable to read roman numerals), to argue their case in court. When asked by the judge what their action is based on, he looks bewildered and (paraphrasing) he states "The constitution, the vibe of the constitution."

This collection of material gives substance to that "vibe" in the context of American constitutional law. The focal point for analysis is obviously the takings clause, which is included in the Fifth Amendment and states "Nor shall private property be taken for public use, without just compensation." This deceptively simple proposition has given rise to not only a confusing and intricate mass of case law but also a deeply theoretical debate about the appropriate balance between the common good and private property interests.

The takings clause was originally drafted by the liberal Madison and was intended as a simple safeguard against overly enthusiastic government action done pursuant to the Republican notion of the public interest. With the expansion and evolution of government regulation, the tension between these two factors has been both heightened and made more complex. In particular, the growth of environmental regulation in the last three decades with its emphasis on species and habit preservation has provided new challenges for takings law. These changes have forced both courts and commentators to address both the nature and purpose of the clause. What is the nature of rights in property that should be protected by the clause? What should be defined as a "taking"? What is the legitimate exercise of police powers on the part of government? Is a bright line judicial rule for the application of the clause ever possible? Is the clause as Michelman suggests concerned with "demoralisation costs"? Should the clause be supplemented with legislation to make its application more certain? Moreover, all these questions must require an analysis of the theories of the state, which lie behind any discussion in relation to takings law.

This three-volume collection brings together a selection of material that addresses many of these issues. It contains an introduction by the editor (and another by the series editor), a range of Federal and state decisions, a series of articles and a selection of Federal and state legislation. On the whole it is an interesting and though provoking compilation which would be an asset to any library and an excellent starting point for research in the area.

Rosenberg’s introduction to this collection is an inspiring prelude. It places the subject matter swiftly in its philosophical, jurisprudential and political context. It signposts a number of key issues and provides an excellent guide to the Federal case law. With that said and in light of its usefulness, the introduction was painfully short, in too small typescript and did not provide any real insight into the secondary literature.

The case law selected is a satisfying and representative collection. One of the long identified problems in this area of law is that the case law, despite the best efforts of the judges, tends to be ad hoc and fact specific. Any rules which are put forward seem to provide little guidance in how a particular case should be decided. Cases are included in full. This is useful in a field with a number of dissenting judgments. The collection also stretches back to 1915 so the reader can fully appreciate that takings law is not "static" and has evolved with changing conceptions of the state.

The balancing act between private property and the public interest tends to throw up two closely interrelated questions for courts. First, where is and should the line between legitimate government regulation of property and regulation of property amounting to "takings" under the Fifth Amendment be drawn. Most of the history of the doctrine has seen the courts treat this as a "nuanced" balancing test between competing interests (e.g., PENN CENTRAL TRANSPORTATION CO. V. NEW YORK CITY 438 US 104 (1978)) in which a set formula was rarely laid down and rarely helpful. In recent cases, however, the courts have attempted to develop more of a bright line rule: see, for example, the judgment of Justice Scalia in LUCAS V. SOUTH CAROLINA COASTAL COUNCIL 505 US 1003 (1992). This demand for certainty and precision is consistent with the shift by the Supreme Court after 1987 towards greater protection of private property rights.

The second question is of course exactly what constitutes the "bundle of rights" associated with property which on being "taken" require just compensation. This naturally requires interpretation of these terms. Justice Holmes decision in PENNSYLVANIA COAL COMPANY V. MAHON 260 US 393 (1922) opened up this whole issue for analysis. Like the question above, the definitions given will heavily depend on the court’s presumption of what the role of the state should be. The cases included in this collection not only present a reasonably comprehensive introduction to these issues but also provide a good starting point for further research.

The difficulty of the case law has given rise to a demand for legislative intervention and the collection includes both examples of this as well as the Committee reports relating to a number of recent congressional proposals. These reports are themselves very useful and give a political backdrop to the issue. The problem, however, is that there is no explanation concerning exactly why certain material has been included. Even a short paragraph would be enough to give the novice a context for the material.

In regards to the secondary material I have some misgivings. Here a more determined editorial hand that arranged the articles under subject headings could have been of assistance. Rather, what we get is a series of pieces, which, while interesting in their own right, do not form a coherent debate. This is not necessarily the editor’s fault. As Farber notes there are "slim prospects for any theory of takings". Some articles relate to specific cases while others are more jurisprudential and still others more doctrinal. It seems however, that the articles have been ordered on the basis of alphabetic sequence (except not exactly) which has resulted in Treanor’s very interesting historical analysis coming at the end with Sax’s enlightening 1964 article. This makes the material difficult to read for someone unacquainted in detail with the literature.

Compilations are always difficult – they are limited by the overall publisher’s requirements, by problems of material availability and the Noah’s Ark conundrum – how do you fit a rich and varied literature which spans a long period into three volumes? What is sadly lacking in this collection is any deft management of the material so as to present the issues in a more orderly manner. It may be that the editor felt reluctant to impose any structure on the material in light of the complex nature of the debate. It also may not be in keeping with the overall series philosophy. Without such guidance, however, except in regards to the Federal case law, it is difficult to get a grip on the literature. This is particularly so when the editor’s introduction hints at some interesting and thought provoking ideas.

Despite these drawbacks this is still a useful collection and I would recommend it as a starting point for someone interested in but with little knowledge of the area. This is not only for those in the United States, but in other jurisdictions where these issues are just starting to become more high profile. At least, with this in their law libraries no students should ever have to argue that the issue of private property, environment and the constitution has something to do with a "vibe".


Copyright 1999 by the author.