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Times analyzes more "liberal" Court of Appeals under Lippman; eminent domain (and the role of Silver) get a pass

A New York Times article running tomorrow on the state Court of Appeals tries to make a point about Chief Judge Jonathan Lippman, but eminent domain--which might complicate the argument--gets ignored.

The article, headlined Judge Puts Liberal Imprint on New York’s Top Court, begins:
Gov. David A. Paterson nominated Jonathan Lippman to head the New York Court of Appeals in January 2009, making him the chief judge of the state. The choice was a gamble: the judge, a longtime court administrator, did not have a long history of deciding cases, and there was almost no record of his political views.

Now, a year in, the parameters of the Lippman court are coming into focus: he has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show. To get the rulings he wants, the decisions show, the new chief judge has built alliances case by case with each of the four judges who were nominated by the last Republican governor, George E. Pataki, cracking the conservative majority.
Looking more closely

I posted most of the following as comments on the Times's web site.

While the court may have moved to the left in certain areas, on the contentious issue of eminent domain--which now challenges ideological boundaries--the court most recently displayed great deference to the state, which is hardly a "left" position.

In the Atlantic Yards eminent domain case decided 6-1 last November in favor of the defendant Empire State Development Corporation, Lippman wrote the majority opinion. A key passage:
It may be that the bar has now been set too low -- that what will now pass as 'blight,' as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses. But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.
Judge Robert Smith wrote in dissent:
The whole point of the public use limitation is to prevent takings even when a state agency deems them desirable. To let the agency itself determine when the public use requirement is satisfied is to make the agency a judge in its own cause. I think that it is we who should perform the role of judges, and that we should do so by deciding that the proposed taking in this case is not for public use.
Next chance: Columbia case

The Court of Appeals will get another chance to address eminent domain in the spring when the Empire State Development Corporation appeals the surprising ruling for the plaintiffs in the case challenging eminent domain for the Columbia University expansion.

In a plurality opinion, Appellate Division Justice James Catterson called the blight designation "mere sophistry" and wrote: T
hus, the record makes plain that rather than the identity of the ultimate private beneficiary being unknown at the time that the redevelopment scheme was initially contemplated, the ultimate private beneficiary of the scheme for the private annexation of Manhattanville was the progenitor of its own benefit. The record discloses that every document constituting the plan was drafted by the preselected private beneficiary's attorneys and consultants and architects, from the General Project Plan, the Special District Zoning Text, the City Map Override Proposal, and the Land Use Restrictions to all phases of the environmental review. Even the blight study on which ESDC originally proposed to base its findings was prepared by Columbia's consultant AKRF, nominally retained by ESDC for the purpose, but which retention and use by ESDC was roundly condemned by this Court in Tuck-it-Away I.
There are many parallels with the Atlantic Yards case, so Lippman and colleagues will be challenged "to perform the role of judges," as Smith wrote.

Siegel on liberals and eminent domain

Norman Siegel, longtime head of the New York Civil Liberties Union, represents plaintiffs in the Columbia case.

In December, he said, "Liberals, generally, are not good on eminent domain. Liberals see government as an affirmative force to improve mankind. Liberals… do not respect property rights as they respect economic rights and social rights."

"Conservatives, as stereotypical statement, are distrustful of government, wind up being generally good on this issue, especially if they’re libertarian conservatives," he said. "It’s not unusual to see strange bedfellows, if you realize the common ground is distrust of government power."

So Siegel is a "liberal" challenging the "liberal" Lippman court and, as stated, that term may not apply all that well to eminent domain.

The Silver connection

One commenter pointed out that Lippman's appointment was engineered by Assembly Speaker Sheldon Silver, his boyhood friend. I observed that, if you want to follow the Silver trail, consider that the Assembly Speaker is a big supporter of Atlantic Yards.

Last February, the Village Voice's Wayne Barrett wrote a cover story on the Lippman appointment, picturing Silver as engineering it all.


  1. Norman,

    I don't think you have this quite right. A desire to entrust the state with more power is a "left" position." "Deference" to state's capacity for central planning is also a "left" position. A belief in eminent domain -- that government knows better than individuals -- stems from this worldview.

    New Deal liberals laid the intellectual groundwork for the ravaging of cities that began with the 1949 Housing Act, and then watched with horror as their good intentions went awry. One of most influential papers in favor of destroying neighborhoods and rebuilding them with government money was co-written by Alvin Hansen, the leading U.S. Keynesian economist.

    (The best history on how the New Deal led to Urban Renewal is Mark Gelfand's A NATION OF CITIES.)

    I'd love to see you delve more into the ideological roots of eminent domain.

    Jim Epstein

  2. Jim, I'll agree that liberals generally support eminent domain and that deference is a "left"--or, perhaps, more traditional liberal--position.

    I've written about that in the context of a post-Kelo conference.

    So I should have made my argument a bit more subtle.

    The article described the court as *moving* to the left on numerous issues.

    While curbing eminent domain is less a left issue than a libertarian/right one, in the context of New York and its enormous deference to state actors, I believe that *moving left* on eminent domain would entail some skepticism about the power of the state and some additional credence given to the individuals challenging the state.

  3. The liberal vs. conservative test doesn't work in eminent domain. Libertarian vs. statist comes closer to the mark, but it too is not entirely accurate.

    Today's liberals, in my opinion, are so besotted with the radical notion of taking property from its rightful owners that they are willing to turn on what they claim to be their favored population segment (the working and lower middle clas)and support a reverse Robin Hood (Hood Robin?) system that works in favor of large corporations.

    For a fuller discussion of this point see

  4. I think that Jim is more on target here, but in the wild and crazy world of NY politics and jurisprudence, eminent domain for corporate (real estate industry) gain seems to be favored by both "ideological" positions (and parties).

    In other words, left and right really have no meaning in NY state when it comes to eminent domain, or perhaps anywhere as Gideon explains.


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