Hi again. Last time we looked at two cases that reflected the law's commitment to individual autonomy. To our right to have control over our own bodies and to that extent our own futures. This time I want to look at another body of law and two other cases that talk about other commitments the law makes. Let's start with a body of law that should be familiar to all of us, the US Constitution. The 5th Amendment to the constitution provides that the government when it takes life, liberty or property cannot do so without due process of law. And goes on to say that when the government does take property, private property for a public purpose, it will do so only upon paying just compensation. I want to talk for a moment about the commitment the Constitution makes to individual liberty and property. Two of the elements that are highlighted in the fifth amendment. If I were to ask you right now, if you had to guess, which is the more important, liberty or property which would you vote for? Go ahead, vote for one of them right now. I'm guessing that most of you voted for Liberty. After all, no one stood up during the founding of the country and said, give me property or give me death. And yet, let's play a little game that I like to call the Devil's Game to test our assumption of our commitment to liberty and property. Here's the game, I'll ask you to vote in a minute in a choice I'm going to give you, a devilish type of choice. I get to convict you of a felony. A serious crime and you will spend one year in solitary confinement in jail. You'll come out and although you'll be unharmed, you will have spent one year of your life in jail and it won't stop when you come out. There is tremendous stigma to being a convicted felon. You know this, you will not be able to vote for the rest of your life. It'll be hard, not impossible, to get a job, to go into graduate school, to get an apartment, all kinds of things. On the other hand when you come out of this year and with a felony record. I will give you $20 million tax-free. Here's my question, how many of you might, just might consider the deal. Just vote yes not if you necessarily will but if you might consider the deal and say no if you absolutely under no circumstances would look at the deal. Vote now. My guess is that more of you might have said yes than you might have thought, which raises a question which is, do we really think that property is subservient all the time to liberty? After all, for those of you that might consider the deal, you are willing to take raw property, cash. $20 million in exchange for what you and I might call core liberty. The government's ability to have put you away in prison for a year and to deprive you of all the benefits of liberty. The ability to write our own life stories and to have the choices that free people have. Afterwards, that convicted felony record would get in the way of. Those were liberty deprivations and to the extent, you were willing to consider making them tangible with money. It suggest that maybe property isn't quite a second class set of rights as is liberty than we might have thought. Here's an insight. Many of the founders of this country didn't think that property rights were necessarily second class rights either. Some of the founders actually thought property rights, the ability of free people to own property was one of the core, essential ingredients of liberty that made people free. And we wanted to be secure in this aspect of our lives, the ability to own property from the government hence, the Fifth Amendment. Given this commitment that the law makes to individual autonomy, the right to have liberty and property. I want you to consider two cases I had you look at. The first is called Mugler versus Kansas. It takes place in the late 19th century. After the Civil War, but around 1880. Mugler was a citizen of Kansas, and he purchased, when it was perfectly legal to do so, a brewery to make beer. And he did so. Somewhere in the late 1800s, the state of Kansas adopted a law outlaw, outlawing alcohol. It was like a state version of prohibition, that would later be adopted at a national level. Immediately upon passage of this law, Mugler's brewery became worthless. Because in order to protect the public morals as the citizens and the politicians of Kansas saw them, they had outlawed the one thing that Mugler made. He brought a claim claiming there had been a takings of his property requiring just compensation. It went all the way to the US Supreme Court and I had you look at that Supreme Court opinion. And the Supreme Court opinion said this, when government, any government acts to protect the public morals as it sees it, to protect the public welfare, it does so through something called the police power. The police power has nothing to do with police and the criminal law. It has to do with the ability of our elected legislators to adopt laws for the public welfare. And for better or worse, that's what Kansas had done when it adopted a prohibition like statute and prohibited breweries. Having done that, as an exercise, a legitimate exercise of the police power, the court held no taking had occurred. It is one of those exercises of a public commitment to which private property has to yield. After all, after the Civil War, which had ended just a few years before. It's not like Southerners who had been deprived of their property rights in slaves which existed prior to the Civil War were entitled to compensation after slavery was outlawed. Sometimes, private interests, including private property rights, have to give way to the overriding public interest, despite the commitment to property. Now fast forward, over 100 years later to South Carolina and the second case that I had ask to read. Lucas versus South Carolina Coastal Council. In this case the government of South Carolina had come to appreciate in the late 1980s that increasing sea level rise and storms were starting to erode the state of South Carolina's beaches much faster than previously thought. Accordingly it adopted a new set back line in front of which no new construction would be allowed in the public interest. Because we now know and South Carolina then knew that building on the beach seaward of this line interfered with all kinds crucial natural processes. Processes that kept barrier islands off the coast of South Carolina intact. Providing protection, say to the city of Charleston, South Carolina from storms that would occasionally come ashore battering the coast. Building too far into the beach close to the water, could interfere with these natural processes. David Lucas was a land developer who had spent years building hundreds of homes on a barrier island just of the coast of Charleston known as the Isle of Palms. He had purchased two lots for himself that now found themselves seaward of this new setback line. That meant he could not build on them. When he purchased, it was legal to build but now it was not. Because it was legal to build when he purchased. I mean, after all, everyone wants this don't we? We want a house right next to the water. He paid $500,000 per lot for each of those two lots. Yet, now that the set back line had been moved and these lots found themselves orphaned on the wrong side of the line, the state of South Carolina said he couldn't use his property. It's not different, is it from what happened in Kansas a hundred years earlier? To Peter Mugler. Who suddenly because of an active to legislature also couldn't use his property. This time, David Lucas brought a takings challenge. It went all the way to the US Supreme Court, that's the opinion we read. But the Supreme Court this time said there had been a takings, an interference with the private property rights of this beach developer such that the government would have to compensate him $500,000 per lot for imposing this restriction on his private property rights. The question is, how do we reconcile the tension? On the one hand between the result in Lucas, and the result 100 years earlier in Mugler. And how do we resolve the tension between the overriding idea that the government actually can interfere with our individual rights, even property rights, that we might value as much as liberty for the greater public good? How do we reconcile that with a pre-commitment to individual autonomy that seemed to animate the tort law that we looked at last time? There's no easy answer to this. In part because it's still being worked out. That's the real insight from this case. Lucas is of course the current law. It is a very narrow law, it only applies when a government deprives one of 100% of ones economic value of land, which the setback in South Carolina, did. If there is any other interference with private property rights, even interferences that might amount to depriving the property owner of 30, 40, 50, even 60 or 70% of the land's value, it isn't necessarily at takings. Sometimes, that amount of private interference has to give way to the greater good. But this time a line literally was drawn in the sand at least constitutionally and the taking was found. The real tension in this case is how do we reconcile the result of, this case, not only with Mugler but the idea that sometimes the public really does demand for the public interest a change in private ordering. We might be exactly at that spot now at the coast. You don't have to have read much to have read about rising sea levels and the effect they have at the coast. Do you know over 50% of the American population lives at the coast? Many of them so close to the ocean that they could be drastically effected over the next century with these rising sea levels that cause erosion under normal circumstances and can cause incredibly destructive damage when exacerbated by storms. In fact in South Carolina one year after the South Carolina legislature adopted the setback requirement it was like nature seconded the insight that the legislature had because in 1999 Hurricane Hugo. One of the first of massive storms that began to batter the Southeastern United States came ashore and came ashore almost with a bulls-eye right at Charleston. Right at the very spot where the Lucas case took place, reinforcing the idea that the legislature really didn't know what it was doing. And that sometimes, there has to be a reordering of private property rights to affect the greater public good. The point at this moment is not that we work this out. It's that we recognize that the law itself, almost like the beach, is in flux. Not just in trying to work out under what circumstances, individuals rights have to give way to the greater public rights, but how to simultaneously make sure that the public has a way to get what it needs so that social welfare improves, or in this case, environmental protection improves. While on the other hand, respecting individual rights including property rights, one of the cornerstones on which this country was founded. That's attention that one finds in the law. That itself is interesting and is a springboard for a whole variety of possible legal solutions that might be able to accommodate both interests. But that is the subject for other lectures. For now though we just have a sense of two areas of the law. The battery law that we looked at the first time. And the property rights takings law that we looked at this time to get a sense of how legal interests are defined and problems involving them worked out. That's all for me. I hope you enjoyed these two video sessions. And I'll look forward to hearing from you and hearing about your successful career at Carolina.
