June 29, 2005

Threatening Justice Souter?

by Sean Sirrine

There has been lots of discussion of Logan Darrow Clements' attempt to use eminent domain to take Justice Souter's home. I actually posted about it over at Dagny's Law Blog and found the idea amusing, but non-sensible. What Clements is doing is reprehensible and stupid, but not illegal.

Professors Randy Barnett and Glenn Reynolds seem to agree it is funny, but professors Eric Mueller and Dave Hoffman have another idea; it's illegal.

Well, I have to jump in here and say that the action that Clements is taking is in no way illegal, and Mueller and Hoffman's posts, though correct in asking for more respect for Justice Souter, are a bit misplaced.

First of all, any of you out there that believe that somehow Clements is in the right need to read the opinions in Kelo again. In no way would this taking of Justice Souter's house stand up in a court of law. Why? Because it is directed at a particular person and a particular property, rather than an "overall plan" to help the area economically. So, even though it is legal for Clements to petition for building a hotel on Souter's land, it is a ridiculous and frankly ignorant attempt. He obviously hasn't run this by his lawyer, or if he has, his lawyer hasn't read Kelo.

However, claiming that it is illegal is almost as ridiculous. The only thing that Clements did that may have crossed the line is to publish Justice Souter's address. I find this reprehensible, but am unaware of any law that would make this illegal. If he were urging some attack on Souter and then published his address we'd be having a different conversation, but that isn't the case.

Dave Hoffman puts it this way:

It is, I think, the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare.

Come on Hoffman, that isn't at all how it is at all. It is more like if a mugger asked permission for Justice Scalia's wallet, on the grounds that through jurisprudence the Justice had deemed "asking" to make the act legal.

Clements act is inherently legal; he is attempting to use the political mechanism to further economic development in his town. (Albeit for his own reasons.) He got the idea from a case that Souter supported, and he thinks that he can show Souter why he was wrong in supporting this decision. (Even though we know Clements doesn't have a leg to stand on.) Like I said at the beginning, what Clements is doing is reprehensible and stupid, but not illegal.

[Update: For those of you who think this is an original idea, take a look here at Captain's Quarters. There is a quote from Mark Twain which reads:

"It does look as if Massachusetts were in a fair way to embarrass me with kindnesses this year. In the first place, a Massachusetts judge has just decided in open court that a Boston publisher may sell, not only his own property in a free and unfettered way, but also may as freely sell property which does not belong to him but to me; property which he has not bought and which I have not sold. Under this ruling I am now advertising that judge's homestead for sale, and, if I make a good a sum out of it as I expect, I shall go on and sell out the rest of his property."]

June 29, 2005 06:04 PM | TrackBack

Thoughts from ethics profs: http://www.legalethicsforum.com/

Posted by: j at July 1, 2005 02:01 PM
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