Quotes of the day

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience…. To be ‘cured’ against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.

Frequently a [proposition] will [present itself], so to speak, in sheep’s clothing: [its undesirable consequences are] not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

Scalia, J. dissenting in Morrison v. Olson


Quote of the day

An excellent and concise explanation of why the First Amendment, and freedom of speech more broadly and more generally, matters to me:

Much of the Court’s opinion is devoted to deprecating the closed mindedness of our forebears…. Closed minded they were–as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly.

Scalia, J. dissenting in United States v. Virginia

It’s taken years of following SCOTUS particularly, and the legal sphere more generally, for me to realize that of all the issues out there, freedom of speech is the one I care about most. Without it, we can’t actually argue about all the other issues that matter, persuading each other, learning from each other, and so on. It is necessary for representative democracy to be able to freely discuss everything and attempt to persuade each other, for us to have any chance at sound policy. The late Justice Scalia gets it exactly right in this quote.

(Speech implications aside: I have no immediate opinion on the legal question in the case as I only discovered it today. For the policy question — which too many people will confuse with the legal question — I would agree with the case’s outcome.)

Rest in peace, Justice Scalia. I’ll miss your First Amendment votes, from flag burning to content neutrality and forum doctrine to (especially, for the reasons noted above) political speech (if not always), among the votes you cast and opinions you wrote. Others less inclined to agree with you might choose to remember you (or at least should remember you) as the justice whose vote ultimately struck down California’s Proposition 8, even as (especially as) you considered the legal question argle-bargle. As Cass Sunstein recognized, you were “one of the most important justices ever”, and the world of law will be worse without you.

(In the spirit of freedom of speech, I generally post all comments I receive, as written. I hope to do the same for this post. But if I must, I’ll moderate excessively vitriolic comments.)


In which I demonstrate Supreme Court fitness in property law comparable to that of Justice Breyer

I said previously that I had two law posts to make. Here’s the non-Mozilla-related post.


I’ve blogged about visiting the Supreme Court for oral arguments before. I had the opportunity to do so again for the extremely interesting week of January 13 earlier this year. I attended oral arguments concerning the Appointments Clause, assembly restrictions in Massachusetts, bankruptcy shenanigans, and railroad property law. A month ago, the first decision, in the property law case, Marvin M. Brandt Revocable Trust v. United States, was announced. I’m going to blog about it a little, because I think it’s cool and because of its impact on rail trails.

Before I do that, I’d like to note that the Marvin M. Brandt Revocable Trust v. United States article on Wikipedia is entirely my work (and my mistakes 🙂 ). (At present. Release the vandals in 3, 2, 1….) It’s the first article I’ve written start to finish. I’m more than a bit proud of that. And I’m particularly excited to have done it in such a cool area of law. 🙂


Back in the 1800s as the United States expanded toward the Pacific Ocean, it needed to be able to efficiently transport goods and people across that distance. At the time, the solution was railroads. So Congress passed acts incenting railroad creation by granting rights of way across federal land. After initially granting rights of way to specific, named railroads in separate bills, Congress streamlined the process in the General Railroad Right-of-Way Act of 1875. Under this act, any railroad meeting certain conditions could get a right of way, til those provisions’ repeal in 1976.

The facts

Fast-foward to (coincidentally) 1976. The United States granted a land patent (that is, a document making clear — “patent” — title to land) to Melvin Brandt for 83 acres in Wyoming, as part of a land swap. One limitation on the grant was that it was subject to a railroad right-of-way originally granted to the Laramie Hahn’s Peak & Pacific Railway Company under the 1875 Act. The grant mentioned no other limitations on the right-of-way.

LHP&P never really worked as a railroad, and it passed through several hands. In 2004 the ultimate owners legally abandoned it. What happened to the right-of-way? This is where things got complicated.

The United States wanted the right-of-way land, so it filed suit to quiet title in its favor to clear up ownership. The United States resolved claims with everyone along the way — except for Marvin Brandt, Melvin’s son.

Brandt’s position

Brandt argued that the right of way was an easement. An easement is a restriction on your ownership of land, that says some other person can enter into and (perhaps) use it for some particular purpose. So your house’s land may have an easement across it for a sidewalk, that allows people to go on the sidewalk, walk through, and briefly stop on it, and you have to accept that. You still own the land; you just don’t quite have free rein over it. (This is why you’re usually responsible for clearing snow off your sidewalk. It’s your land, your fault if someone slips and twists an ankle and it was reasonably foreseeable.) When an easement terminates, the land is unburdened by the easement. No physical property changes hands, the easement just doesn’t exist, and the land owner can again prevent entry and use of his land.

Brandt buttressed this argument by pointing to Great Northern Railway Company v. United States. In this 1942 case, the Supreme Court decided whether Great Northern could drill for oil and gas on an 1875 Act right-of-way. The United States said no, it couldn’t — the right-of-way was in the nature of an easement, only an easement had been granted, all signs (language, legislative history, early interpretation, Congress’s construction of it in subsequent acts) said it was an easement. The 1942 Court agreed. Open and shut case for Brandt, right? Yes and no.

The United States’s position

The United States argued that 1875 Act rights of way were a “limited fee made on implied condition of reverter”. Let’s unpack this gibberish. “fee” is roughly “ownership”, and “reverter” refers to what happens to the property after some condition (here, abandonment) holds. The United States thought railroad rights of way were an unusual sort of easement. Easements don’t typically let you come in and tear things up, but it’s necessary for railroads to dig, bore, build up, lay track, and so on. So these “railroad easements” were a fee in those regards. And in regard to reversion after abandonment, ownership reverted to the United States.

In light of Great Northern, this may sound ridiculous. But the United States found language in earlier cases, and to an extent in Great Northern, saying that railroad easements had “attributes of the fee”. And two cases predating Great Northern had treated 1875 Act rights of way as limited fees. The problem was, in those cases the Supreme Court had conflated 1875 Act rights-of-way with rights-of-way under acts before 1871. In 1871, Congress changed policy from basically giving railroads land, to only letting them lay tracks on it. Congress wanted to encourage settlement, not just the arbitrary enrichment of railroads (who had become incredibly huge land owners in the West). The Court conflated the two because, in at least one of the cases, neither side had filed briefs, and the Court made a legal mistake.

The United States argued that Great Northern didn’t really say 1875 Act rights of way were easements.

Oral argument

Oral argument was pretty interesting. I read half a dozen briefs and the lower court opinion in the case, so I was moderately prepared to follow argument. In some ways I was almost on par with the justices. Justice Breyer candidly admitted to fumbling with his recollections of A. James Casner‘s property law class, about which he briefly rambled (as is his wont — he’s known for rambling 🙂 ).

Oral argument generally trended against the United States. Sparks flew when the United States attorney began argument. Justice Alito bluntly told him the United States should receive a “prize for understatement” for “acknowledg[ing in its brief] that there is language in [] Great Northern and in the government’s brief in that case that lends some support to [Brandt’s] argument.” Alito recited the brief’s subject headings, all forcefully arguing that the right-of-way was an easement and only an easement.

The argument didn’t go much better from there on for the United States. Various justices wanted to know how much land would be affected by a judgment that these rights-of-way were easements — permitting takings claims for just compensation, especially when the land had already been taken by the United States. No answer was forthcoming, because the records had been taken so long ago and were so geographically distributed. Breyer in particular repeatedly asked if there were any other easement-but-not-always constructs in the common law of property.


The Court announced an opinion on March 10, just under two months after oral argument. Fast turnarounds typically indicate uncomplicated cases, and this was such a case. The justices divided 8-1 for Brandt, uncritically adopting his position. Chief Justice Roberts wrote the opinion, which began with a half-dozen pages of history of the West and particularly of LHP&P. (Definitely give it a read if you like Western history.) Roberts emphasized that the United States lost because it had won in Great Northern and faulted it for its “stark change in position”. He also asserted that 1875 Act railroad rights of way must be analyzed as common law easements — not a strange amalgam as the United States had argued.

Justice Sotomayor dissented alone. She argued that Great Northern had decided only one aspect of the property interest in railroad rights of way, and it hadn’t decided how reversion should play out. She also thought that railroad rights of way shouldn’t be analyzed under the common law, because of the extent to which they went beyond what normal easements allowed.

In the end the United States was roundly rebuked and defeated. Sometimes 8-1 decisions are a matter of some recognized, fundamental disagreement; see for example many of Justice Thomas’s solo dissents. But when a decision goes this way, in a case barely implicating deep jurisprudential disputes, you have to second-guess yourself a bit when you’re on the losing side. It’s one thing to lose with others agreeing with you. But when no one else sees it as you do, perhaps you’re the one who’s wrong.

Why did the United States pursue the case to a resounding loss? This particular case arose a bit weirdly. It was pushed by various property-rights groups, at the start. And for where it was raised, in the Tenth Circuit, existing circuit precedent said Brandt’s argument would lose, which it did. Brandt appealed to the Supreme Court, citing the circuit split: a good way to get your case heard, but no guarantee. What possibly tipped the balance was that the United States, despite winning, agreed the Court should hear the case. Why?

It looks to me like the United States got greedy. It saw an opportunity to wipe out the other circuits’ bad precedents, and it blinded itself to the weakness of its argument.


What happens to Brandt specifically? The case returns to the Tenth Circuit to respond to the decision, but it’s unclear to me what’s supposed to happen there. I’d think they’d just quiet title in Brandt and be done, but the Rails-to-Trails Conservancy says it’ll keep working in the Tenth Circuit to “narrow the ultimate impact of the Supreme Court’s ruling”. How they can work against a predetermined quiet title action, I don’t know. (It’s possible this is just a face-saving claim on their part.) And it’s possible the United States might just acquire the right of way using eminent domain. (Why not do that and avoid suit? Money, of course. If it owns the land, no just compensation to pay. If not, that’s money out of the government’s pocket.) So Brandt’s not quite out of the woods yet, pun probably intended.

But Brandt’s particular plight isn’t the important thing here. It’s all the other places where suddenly takings claims can go forward. No one knows how many of these there are. Statutes of limitations and estoppel will preclude many claims, but not all of them. It’s still an unresolved mess.


This touches a deeper concern. The United States acted here because it wanted to create rail trails, converting useless railroad corridors into bike trails. I like bikes. I like bike trails. But the law authorizing rail trails was enacted with flagrant disregard for the actual ownership of railroads in disuse. The CBO estimated the law wouldn’t cost a penny, but it now could cost $500 million, maybe more after this decision. We should demand a higher standard of Congress in the laws it passes.


Senate Joint Resolution 26, the Clean Air Act, and the consequences of inaction


Approximately three months ago I received this (presumably form-generated) email through a mailing list:

Our new senator, Scott Brown, is considering a resolution from Alaskan Sen. Lisa Murkowski — but written by a coal lobbyist — that would roll back Clean Air Act protections.

Sign the petition telling Sen. Brown that the people of Massachusetts support a strong Clean Air Act.

Check out this page at the Environment Massachusetts Web site:


I wrote a brief reply to the list and sender explaining the situation wasn’t as simple as claimed, responded to a short followup question, and called it a wrap. Reactions suggested that the information I communicated was new to many members of the list (all informed and intelligent people, I should note), and it occurred to me that my response might be worth publishing here. However, the resolution appeared dead on arrival, the quixotic creation of a minority senator. Editing and republishing didn’t seem worth the time, until now: S.J.Res. 26 is headed for a Senate floor vote tomorrow. To better inform readers of the full situation, I’ve taken my response, adjusted it for a broader audience, and included it here; I hope you find it informative.

Regulating greenhouse gases using the current Clean Air Act is a dangerous idea

(For readers seeing this via p.m.o: the planet software appears to strip a crucial part of the header for this section. The heading which should be displayed is “Regulating greenhouse gases using the current Clean Air Act is a dangerous idea”, not “Regulating greenhouse gases is a dangerous idea”.)

Regulating greenhouse gases under the current laws is a seductive idea with a large problem. Using current law is politically painless for Congress, avoids legislative delay, and tackles a pressing problem. The dilemma is that tackling greenhouse gases requires a scalpel, but current law provides only a hatchet. The Clean Air Act (link goes to the Act as amended through the 108th Congress) was quite patently never intended to regulate carbon dioxide, and it is wholly unsuited to the task.

The Clean Air Act’s pollution limits are nonsensical applied to greenhouse gases. Title I, Part A, §112(b) lists the initial set of hazardous air pollutants regulated by the Act. It does not contain carbon dioxide, methane, or the various other major greenhouse gases. The Act permits the EPA administrator to revise the list, but he should not do so lightly: certain consequences immediately follow per the Act’s text. The Act mandates a certain level of regulation of “major emitting facilities” of listed pollutants. What’s a “major emitting facility”? According to §169(1), it’s “any of the following [list of various industrial facilities] which emit, or have the potential to emit, one hundred tons per year” of listed air pollutants. Further, “Such term also includes any other source with the potential to emit two hundred and fifty tons per year or more of any air pollutant.” How do these limits compare in the extent of their effect to the original pollutants, and sources, conceived of by the Clean Air Act? My understanding (full disclosure: I can’t find my original source for this sentence) is that past regulation for historically-listed pollutants affected a few hundred energy-generation plants; these days it affects several thousand. But for carbon dioxide, a 100- or 250-ton limit is almost nothing.

The EPA estimates in a tailoring proposal concerning the Clean Air Act and greenhouse gases that applying the 100- and 250-ton limits with respect to GHGs would require the EPA to issue 140 times as many PSD permits as it does now. The requisite man-hours would be 250 times the man-hours spent issuing permits now. The EPA currently issues 280 PSD permits each year; a 140-fold increase would require many large office builds, larger churches, tens of thousands of farms, and many other entities to get permits.

It’s difficult to say the Clean Air Act was intended for this purpose, given the incredible disproportion between limits suitable for GHGs and limits set by the Act. The Clean Air Act concerned toxic chemicals and industrial pollution present in (relatively) small quantities, as the textual limits specifically indicate, not chemicals as abundant as carbon dioxide. Moreover, was the Clean Air Act designed for pervasive, non-localized pollutants like carbon dioxide? It seems unlikely, because regulation explicitly addressed “regions”, not the entire nation.

But the 140-fold increase applies only if you respect the law’s plain text. If you ignore the text and suppose 250 doesn’t mean 250, you can alleviate the problem to a degree. That’s what the EPA proposes in the aforementioned tailoring proposal. Instead of interpreting 100 tons to mean 100 tons, or 250 tons to mean 250 tons, the EPA proposes to interpret each as 10000 tons and 25000 tons, respectively.

The misinterpretation of pollutant limits by a factor of a hundred scales back impact considerably, but it is grossly out of alignment with the plain text of the Act. What if, say, Environment Massachusetts brings a lawsuit to correct this atextual interpretation? (Not all environmental groups are happy about this administrative sleight of hand.) The EPA’s argument is that the language of the Act shows this to be a plausible alteration. It’s certainly true that that might accord with the law’s original intent (although it’s difficult to speak of the intent of hundreds of congressmen from across the country). Nevertheless, are we governed by the divined intentions behind a law, or are we governed by the law’s plain text? Laws don’t say what we think they should have said, they say what they say; 100 and 250 ton limits rather than orders of magnitude larger was certainly no scrivener’s error.

The clear conclusion motivated by this conflict between statutory text and practical effect is that the Clean Air Act was never written to apply to pollutants such as carbon dioxide normally present in amounts far exceeding statutory limits. Thus, the Clean Air Act shouldn’t be read to cover GHGs.

But then you reach a problem: in Massachusetts v. EPA, 549 U. S. 497 (2007), the Supreme Court essentially held that the EPA was required to add GHGs to their list of pollutants. The EPA is therefore required to regulate greenhouse gases according to the Clean Air Act as it stands now. They have no choice in the matter, and their hands are tied in just how carefully, delicately, precisely, etc. they can regulate by the Act itself: in essence they must regulate as if new polluters were large industrial plants such as the Clean Air Act originally targeted.

Senator Murkowski’s resolution would lift the requirement that the EPA regulate greenhouse gases using laws not carefully designed to do so. Rather than dealing with a problem through a means wholly unsuited to it, Congress would remove this power and requirement to use it from the EPA (and only with respect to greenhouse gases — all other existing regulation would remain untouched), to then later replace it with legislation specifically tailored to the goal of combating GHGs.


The laws available to the EPA in pursuing regulation of GHGs are entirely unsuited to the purpose, requiring heavy-handed regulation of two orders of magnitude more entities than these laws have ever addressed before. A deliberate misreading of the Clean Air Act curtails the required regulation’s breadth, but that misreading is subject to challenge in courts. If that misreading is corrected, as it should be, we are in for a world of pain: permits cost hundreds of thousands of dollars and consume a few hundred man-hours of regulatory agency time — each. The EPA will be completely swamped if the Clean Air Act is applied, under Massachusetts v. EPA, according to the Act’s text.

The right thing to do to regulate greenhouse gases is to construct a regulatory regime specifically designed for them, and to strip authority over that problem from the Clean Air Act.


Leadership by example

From an analysis of preliminary Iraqi election results a month ago:

Many democracies, especially those that have been given their impetus by outside power, hold successful elections once or twice, then have their weak institutions perverted by “strong men” — by which is meant leaders that come to power legitimately then refuse to return it, either doing away with the institutions and practices of representative government or turning them into formulaic but meaningless (think East German elections) hypocricy [sic] that fool no one, least of all their own citizens.

When one considers mistakes of other countries, it makes George Washington‘s example all the more remarkable. Washington took the oath of office 221 years ago today to become the first President of the United States; approximately eight years later he gracefully left office, enabling a smooth and peaceful transfer of power to John Adams. This was not the first time he had set aside power for the good of all: he did likewise years before upon completion of the Revolutionary War, leaving public life rather than remain commander-in-chief or choose another position. (Contrary to popular belief, Washington did not decline a kingship. Moreover, that such an offer could have been credible is dubious given the sentiments in contemporary sources such as The Federalist Papers.)

If he does that, he will be the greatest man in the world.

King George III, upon hearing that Washington planned to “return to his farm” after winning the Revolutionary War

Happy First Inauguration, Mr. President.

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