I suppose I will have more developed thoughts on this later, but does anybody have any thoughts on the implications of the McCreary (PDF) and Van Orden (PDF) for Roy Moore, the Alabama Justice who got kicked out of office for insisting on displaying the Commandments? I think he should have obeyed the court order to take his Commandments down when he was told to rather than conducting insurrection from the bench, but now that the Court has ruled, is it clear how they would have ruled on the merits of Moore's display?

I've opened comments.

Hillel Levin over at PrawfsBlawg joins in to pooh-pooh those who fetishize the incorporated 5th Amendment:

And if you think that there ought to be a law against this kind of taking . . . pass one.

Tom Goldstein and Marty Lederman theorize about the original opinion assignments in the Court's February sitting. Rehnquist and Kennedy each have two, Scalia has none, and he has comprehensive dissents in both McCreary and Spector so it seems likely that he has lost one of the two majorities.

I had originally assumed (without reading Spector carefully) that Scalia lost Spector, but I do think that reading the parts of his dissent that have four votes make it look a lot like a majority opinion. More thorough excavation may reveal insights.

Incidentally, while there is much talk and theorizing about which members of the current court would make a good consensus-builder if elevated to Chief, I wonder if anybody has done the empirical work here. Has anybody looked back at sitting-by-sitting opinion assignments through the past decade and tried to reason out, from opinion assignments, which Justices have "lost" majority opinions and how many? That might be a valuable bit of data.

At the moment, this AP story on the Ten Commandments cases contains the following claims: "In that 5-4 ruling [Kentucky] and another decision involving the positioning of a 6-foot granite monument of the Ten Commandments on the grounds of the Texas capitol, Justice Sandra Day O'Connor was the swing vote. The second ruling, likewise, was by a 5-4 margin."

But wait. Later in the story, about the Texas ruling: "Rehnquist was joined in his opinion by Scalia, and justices Anthony Kennedy and Clarence Thomas. Breyer filed a separate opinion concurring in the result."

Notice, as will probably become plain soon, that O'Connor's vote utterly fails to "swing" between the two cases, contra what were apparently the story-writer's expectations.

The contributions from Professors Posner and Becker about the ongoing fight over Kelo prompts me to point out that there are two different ways in which "fair market value" undercompensates for the actual values people place on their homes.

1: Since courts are rightly reluctant to engage in too much excavation of subjective valuations, certain hard-to-quantify values simply go ignored. These include not only some moving and transition costs, the costs of lost social capital as one moves away from one's neighbors, the opportunity costs of time spent litigating and fighting these issues, and the loss of the psychic value of permanence, and so on. These really ought to be compensated, and it might be worth simply adopting a statutory rule that "just" compensation is 20% or so above FMV.

2: But there are other subjective values people place on their homes too, and it is not obvious that even in a Beckerian world or Epsteinian end-state that we would want to compensate all of them. People, after all, have notoriously thorny utility functions. Consider, for example, somebody who simply hates and despises eminent domain, a libertarian partisan who will derive intense disutility from the thought that the government gets its way; it might take millions and millions and millions of dollars to compensate for this person's "subjective value", and it will take some more complicated work to figure out what his "just" compensation is. Ditto the person who simply hates development, and so on. I take it(?) that very few people who believe in eminent domain in the first place think that the eminent-domain-haters deserve extra money to compensate them for their hatred.

Fine, say the economists and political scientists. We should simply ramp up "just" compensation to be an appropriate premium above FMV, and we should ignore those psychic costs that are simply related to a hatred of eminent domain or government projects, or whatever. The trouble with this is that it means that even an ideal-compensation-world, we will have rent-seeking problems unless there is robust public-use enforcement, and that rent-seeking leads to all of the usual inefficiencies, abuses, and pathologies. It may be that those problems are no worse here than in governance generally, but given the unique immobility of real property, I suspect that they will be.

UPDATE: It occurs to me that another problem with FMV compensation, although it is not related to the above analysis, is the regulatory/real takings divide. It's a well-known trick to enact regulations that reduce the FMV of a plot of land before then proceeding to condemn it with eminent domain. Since regulatory takings go largely un- and under- compensated, this gives you a discount on the eminent domain check; the government can then repeal the restrictions for free. Indeed, being able to massage restrictive regulations off of a piece of property is part of how one makes real money as a real estate speculator. In theory, many (all?) states have judicial review to fight this regulate-down-then-condemn trick, but I don't know of any place that does it effectively, or even knows how to.

UPDATE TWO: I have a new post, "Two More Undercompensation Problems"