While most scholars are out to develop a "grand theory" for the Fifth Amendment's Takings Clause, Professor Christopher Serkin wants to apply a more fine-toothed comb and untangle the jurisprudence thickening around it. A simple proscription that comes at the end of the Fifth Amendment's list of "thou shalt not's" directed at the government, the Takings Clause provides, "nor shall private property be taken for public use, without just compensation." Serkin claims it should operate differently in different contexts. "For one, it should depend on the nature of the government doing the regulating," he says.
Serkin's interest in property law grew from his own roots in a state known for its progressive politics — Vermont, where an exception in the form of a strong libertarian bent emerges when it comes to private property. "Plus, I loved my property class in law school," he adds. Serkin earned his J.D. from the University of Michigan Law School and knew early on that he wanted to write. After clerking for a federal district judge in Vermont and a Second Circuit judge and practicing at Davis Polk for several years, he began teaching in the Lawyering Program at New York University School of Law, which led to a full-time position at Brooklyn Law School two years later.
Serkin's article in the New York University Law Review, in which he argues that the Takings Clause should apply differently to local governments than it does to state and federal governments, is drawing the attention of other scholars. "The party line is that the government must be forced to pay for takings. Many people argue that uncompensated harms are a negative externality, and can lead to over-regulation," he explains. "But my claim is that for small local governments, the opposite is true: Because they are risk-averse, the threat of takings liability is likely to cause under-regulation." As a result, he argues, local governments' actions should be judged differently.
As a follow-up to that argument, Serkin published an article in the Columbia Law Review (see abstract) that addresses the problem of how to apply that principle. "Courts shouldn't be doing this," he says. "Local governments themselves should be the ones deciding what sorts of penalties they will provide if zoning ordinances are changed to the detriment of property owners." He wrote this article in response to states' reactions to Kelo v. City of New London, a controversial 2005 U.S. Supreme Court case that allowed a municipality to condemn formally unblighted property and transfer it to a private entity for the purpose of economic redevelopment. "Kelo spawned a raft of state legislation that prohibits condemnations for economic redevelopment," Serkin points out. "My argument is that the state is the wrong scale of government to be making these decisions. States' response will have significant redistributive consequences, impacting a city like New York much more than a suburb where land assembly is easier."
His theories are based on a philosophical inquiry about the nature of the Takings Clause. "The purpose of offering property protection is to induce investment," Serkin says. "We should aim for a level of protection that will maximize investment while minimizing the cost of the regulatory action." That means the Takings Clause's property protections can be used as a tool to attract investment if they are used properly. It's the same motivation built into many bilateral investment treaties that are designed to induce foreign investment. "Small countries promise powerful ones that they will not nationalize the resources that companies want to invest in," he says. "I think we should do the same with local governments and the owners of real estate."
Serkin's next article will address the nature of the property being regulated. Courts typically do not distinguish — on the surface, anyway — between regulations that affect existing uses of property and those that affect future use. But they seem to want to, he says. "There's something special about existing uses." His goal: dig further into the assumptions that he says result in stronger protections for existing uses, so that courts can be clearer about what they are protecting and why. This could change the way courts apply the test for unconstitutional takings. At present, they do not expressly say that current uses are more valuable. "I'm working on exactly what is different about them," Serkin says.
Christopher Serkin | Abstract
Local Property Law: Adjusting the Scale of Property Protection
This article proposes that issues surrounding the protection of private property should be resolved at the local level, and that local governments should be allowed to select the property protection that they want to offer. Specifically, this article proposes state legislation to create a mechanism for local precommitments around the most contested takings and land use issues. The resulting local variation in property regimes would allow consumers — homeowners, developers, and any other property owners — to select the property protection they want by choosing where to live and invest. Implicit in this proposal is the idea that property protection can be viewed as a tool for attracting investment. Given the opportunity, local governments should offer property protection when the costs of that protection — in the form of increased compensation and decreased flexibility — are less than the benefits from increased investment.