June 27, 2007

The Volokh Conspiracy on Wilkie v. Robbins

By The Volokh Conspiracy on Wilkie v. Robbins

Three excellent posts from our friends at the Volokh Conspiracy discuss the consequences of the Robbins decision. First, Ilya Somin explains that "If protecting a constitutional right really is too burdensome for the government, the proper solution is a constitutional amendment curtailing the right in question – not a judicial decision refusing to protect the right because the Court believes that doing so would inconvenience the government too much."

Then Jonathan Adler has this post on "Barring Bivens Actions for Property Owners." Excerpt:

The claim that a deliberate campaign of harassment intended to extort a constitutionally protected property interest is not distinguishable from a government official's "legitimate zeal on the public's behalf in situations where hard bargaining is to be expected” rings hollow. Under what circumstances would legitimate "hard bargaining" by a federal employee include the repeated commission of illegal and tortuous acts, and harassment that extended to efforts to videotape a landowner's guests "even while the guests sought privacy to relieve themselves." I am very sympathetic to the need for line-drawing, lest the approval of a Bivens action produce a rash of meddlesome litigation, but the facts alleged in this case are far from any reasonable line demarcating what actions should be redressable.

And then there's this post, "Wilkie and the 'War on the West.'" Excerpt:

Robbins waited to sue until it was clear he faced a "death by a thousand cuts," at which point he sought relief for the entire harassment campaign. With this avenue closed, the only option for Robbins and other landowners in his position is to litigate and appeal each and every federal action, no matter how piddling or small, that is potentially adverse to the landowner's interests. Indeed, the potential for administrative relief for some of the actions about which Robbins complained was one of bases for the majority's holding. Now that the Court has completely [blocked] a landowner's ability to seek relief for a series of deliberate actions, there could be an escalation of legal conflict between landowners and government agencies, and it is hard to see how this would be in anyone's interest.

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