Brady on the "Damagings" Clauses

Maureen (Molly) E. Brady University of Virginia School of Law has posted The Damagings Clauses, which is forthcoming in the Virginia Law Review:

Twenty-seven state constitutions contain a clause prohibiting the “damaging” or “injuring” of property for public use without just compensation. Yet when compared to its relative, the Takings Clause of the federal constitution—which says that private property cannot be “taken” for public use without just compensation—the ways in which state courts interpret and apply their “damagings clauses” have remained opaque and virtually unstudied.

This Article provides the first comprehensive analysis of state damagings clauses. It traces the clauses to the threats to private property posed at the turn of the twentieth century as a result of rapid infrastructural improvement. These state constitutional provisions were meant to fix perceived inequities resulting from strict application of takings law: many jurisdictions would not recognize a right to compensation when public works affected use rights and drastically devalued property but did not physically invade or appropriate it. Drafters envisioned the damagings clauses as a powerful bulwark for property owners whose livelihoods and homes were affected yet not touched by public works. However, as state courts were tasked with the brunt of the interpretive work, their rulings coalesced around a variety of doctrinal limitations that severely undercut the clauses’ potency. As a result, modern interpretations of the clauses mainly provide coverage in a variety of contexts where the offending activity would already qualify as a physical-invasion taking under most federal precedents.

This Article argues that the damagings clauses deserve broader applications in condemnation law. Damagings comprise a more limited and historically supported category than regulatory takings, for which courts have long awarded compensation. Moreover, courts already try to mandate compensation for some of these types of injuries by manipulating ordinary takings law, leading to unnecessary doctrinal confusion. As a new wave of infrastructural growth looms, it is time for professors and practitioners to return their attention to these forgotten provisions of the state constitutions.

Weekend Roundup

• Over at JOTWELL's Property section, Shelley Ross Saxer (Pepperdine Law) has posted an admiring review of University of Virginia legal historian Maureen Brady's forthcoming article on "Damagings Clauses."

• Also in JOTWELL, from the Intellectual Property section, Mark McKenna (University of Notre Dame) praises "The Article of Manufacture in 1877," by Sarah Burstein (University of Oklahoma).  The article appeared in Volume 32 of the Berkeley Technology Law Journal (2017).

• Martha S. Jones, Johns Hopkins University, will deliver the keynote speaker at the Spring 2018 Commencement Ceremonies at the University of Michigan-Flint. 

• “So you want to synthesize filmmaking with legal history? Davidson has a course for that": John Wertheimer’s "Filming Southern Legal History" seminar.  More.

• Starting on April 16, Laney College in Oakland, CA, will host Herstory: The Legal History of Chinese American Women.  Drawn from the personal collection of Dr. Chiu Chang, the exhibit “features rare photographs and case descriptions of efforts by Chinese-American women to gain legal standing in the U.S.”

• ICYMI, last week the California Law Review hosted a symposium on Amanda Tyler's Habeas Corpus in Wartime (Oxford University Press).  

• Timothy Snyder's revelatory essay on Ivan Ilyin and his influence on Putin's Russia.  Chilling reading, after reports of Stephen Bannon's advice to the White House on executive privilege.

• From Krista Kesselring at the Legal History Miscellany blog: "Star Chamber Stories: Using Criminal Law to Criminal Ends in Early Modern London."

•  Our friends at the Max Plank Institute for European Legal History have announced Legal Journals of the 19th Century (Juristische Zeitschriften des 19. Jahrhunderts).  It provides “online access to a vast collection of legal journals . . .   Seventy-five journals were selected, compiled in uninterrupted series, supplemented with structural and meta-data, and published.”  More.

• At the Indian Constitutional Law and Philosophy blog: a recent online roundtable discussion of Ornit Shani's book, How India Became Democratic (announced on the blog here), featuring essays by Suhrith Parthasarathy, Anupama Roy, and blog host Gautam Bhatia, along with a response from the author.

• Today is the early registration deadline for the 2018 Policy History Conference. 

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.