The Permit Power Meets the Constitution

Iowa Law Review

Volumn 81, Issue 2, 1995, Pages 407-420

  Epstein, Richard A ^a  

^a NONE

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EID: 0029497372     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (27)

1. For one such collection of anecdotes powerfully stated on all manner of social ills, see Phillip K. Howard, The Death of Common Sense (1994).
2. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 451 (1937) (striking down municipal ordinance that required permission of city manager for leafletting and pamphletting).
3. See, e.g., United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (dealing with the dredge and fill permits needed under § 404 of the Federal Water Pollution Act of 1972 prior to engaging in any activities on a wetland).
4. 483 U.S. 825 (1987).
5. 114 S. Ct. 2309 (1994).
6. Lochner v. New York, 198 U.S. 45, 75-76 (1905) (Holmes, J., dissenting).
7. 96 S.W.2d 221 (Tex. 1936).
8. 53 N.H. 442, 449-50 (1873) (citing Exodus for the Hebrew support of a strict liability system thought to be inappropriate for nineteenth century America).
9. Id. at 448: Even if the arbitrary test [of Rylands v. Fletcher] were applied only to things which a man brings on his land, it would still recognize the peculiar rights of savage life in a wilderness, ignore the rights growing out of a civilized state of society, and make a distinction not warranted by the enlightened spirit of the common law: it would impose a penalty upon efforts, made in a reasonable, skillful, and careful manner, to rise above a condition of barbarism. It is impossible that legal principle can throw so serious an obstacle in the way of progress and improvement.
10. I have discussed this question at greater length in Richard A. Epstein, The Social Consequences of Common Law Rules, 95 Harv. L. Rev. 1717 (1982).
11. For the classic statement, see Baron Bramwell's masterful opinion in Bamford v. Turnley, 122 Eng. Rep. 27, 32-33 (Ex. 1862).
12. See Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992).
13. Just this transformation took place in Lucas, id., as the 1990 amendments to the Coastal Commission Act set up an obstacle course that, on its face, did allow some development to take place.
14. See Williamson County Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) (requiring variances to be sought before allowing judicial review). The Court's attitude toward its own quagmire is blasé in the extreme. The Court has stated that, "[A]fter all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired." United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127 (1985). The costs of delay are assumed to be zero, and this entire line of argument is in evident tension with First Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), which treats temporary takings of real property as compensable events under the takings clause.
15. For one application of this principle, see Wisconsin & Michigan Ry. Co. v. Powers, 191 U.S. 379 (1903) (Holmes, J.) (holding that a promised tax break could be revoked after the railway line had been built because the railroad had not obligated itself to build the railroad in the first place). The case turned on a narrow reading of the consideration requirement, which demanded that the undertakings on each side be "conventional inducements" for each other. Id.
16. For my analysis of this problem, see Richard A. Epstein, Bargaining with the State (1993).
17. For the early version of this critique, see Ronald H. Coase, The Federal Communications Commission, 2 J.L. & Econ. 1 (1959).
18. See Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (1973), with its elaborate system of permit provisions, and powerful criminal sanctions for their violation. For a recent dispute over the proper scope of the statute as it relates to the protection of habitat, see Sweet Home Chapter for a Great Oregon v. Babbitt, 17 F.3d 1463 (D.C. Cir. 1993), rev'd, 115 S. Ct. 2407 (1995).
19. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264 (1981).
20. William A. Fischel, Regulatory Takings 218-52 (1995).
21. 483 U.S. 825 (1987).
22. 114 S. Ct. 2309 (1994).
23. 223 Cal. Rptr. 28 (Cal. Ct. App. 1986).
24. For an explanation of how this might be so, see Epstein, supra note 16.
25. L.R. 3 H.L. 330 (1868).
26. See McLane v. Northwestern Gas Co., 467 P.2d 635 (Or. 1970); Brown v. Gessler, 230 P.2d 541 (Or. 1951).
27. Brown, 230 P.2d at 541.