ADA suits against states struck down- what's next?

[Nathan Newman]

----- Original Message -----
From: "Lisa & Ian Murray" <seamus at accessone.com>
>"If the value of a parcel of land, for example, is determined in the first
>instance by an enormously complicated network of property, tort, and zoning
laws
>that regulate permissible uses of that parcel and neighboring ones, along
with
>numerous government policies that affect regional development and hence
demand
>[highways, mass transit, tax-subsidized mortgage rates, government
regulated
>insurance, macroeconomic policies that affect employment, and the like],
what is
>the prepolitical 'baseline' property value against which we declare one
>additional environmental regulation or one additional tax to be a theft of
>private property?" [Barbara Fried]

Ian,

I think this quote acts as if there is not a simple baseline being promoted
by conservatives, ie. the status quo when a corporation makes a particular
investment.  Regulations that are put in place before such an investment do
not require compensation, but any regulation must compensate those who
invested with expectations of profit based on lack of such regulations.

In fact, this is the standard promoted in Eastern Associated Enterprises
[June 25, 1998]

O'Connor for the Court argued that imposing liability for paying the health
care benefits of former mining employees on mine companies "interferes with
the claimant's reasonable investment-backed expectations" and "attaches new
legal consequences to [an employment relationship] completed before its
enactment."  Like the Ex Post Facto Clause in penal legislation, O'Connor
argued that "the Takings Clause provides a similar safeguard against
retrospective legislation concerning property rights."

This is an intellectually cogent if politically deadly position for
conservatives to defend.  And they are increasingly doing so through their
control of the Supreme Court.

-- Nathan Newman