Article

The Damagings Clauses

Twenty-seven state constitutions contain a clause prohibiting the “damaging” or “injuring” of property for public use without just compensation. Yet when compared to its relative, the Takings Clause of the Federal Constitution—which says that private property cannot be “taken” for public use without just compensation—the ways in which state courts interpret and apply their “damagings clauses” have remained opaque and virtually unstudied.

This Article recovers the hidden history of the state damagings clauses. It traces the clauses to the threats to private property posed at the turn of the twentieth century as a result of rapid infrastructural improvement. These state constitutional provisions were meant to fix perceived inequities resulting from strict application of takings law: many jurisdictions would not recognize a right to compensation when public works affected use rights and drastically devalued property but did not physically invade or appropriate it. Drafters envisioned the damagings clauses as a powerful bulwark for property owners whose livelihoods and homes were affected yet not touched by public works. However, as state courts were tasked with the brunt of the interpretive work, their rulings coalesced around a variety of doctrinal limitations that severely undercut the clauses’ potency. As a result, modern interpretations of the clauses mainly provide coverage in a variety of contexts where the offending activity would already qualify as a physical-invasion taking under most federal precedents.

This Article argues that the damagings clauses deserve broader applications in condemnation law. Damagings comprise a more limited and historically supported category than regulatory takings, for which courts have long awarded compensation. Moreover, courts already try to mandate compensation for some of these types of injuries by manipulating ordinary takings law, leading to unnecessary doctrinal confusion. As a new wave of infrastructural growth looms, it is time for professors and practitioners to return their attention to these forgotten provisions of the state constitutions.

Legal Innocence and Federal Habeas

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence—the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so. As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate. These cases raise similar concerns and implicate many of the same features of our criminal law system. By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.

“Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches

“Can we take a look inside your car?” More than half of all roadside searches begin this way. A consent search is a cop’s quickest and easiest way to look for evidence in a car, in a home, or on a suspect’s person. Perhaps because of that, it is not always clear in practice that answering no really means no. The Supreme Court has long held that consent searches must be completely voluntary or evidence stemming from that search may not be admitted against the suspect searched. This rule deters unconstitutional law enforcement tactics. But the Court has not provided the doctrinal tools to keep law enforcement in check. Appellate courts are currently free to review voluntariness only for “clear error” by the trial court, leading to a toothless review. This Note argues that voluntariness in consent searches must be reviewed de novo on appeal. This independent review doctrinally aligns with the Supreme Court’s criminal standard-of-review jurisprudence. In contrast, deferential review leaves criminal defendants with insufficient Due Process surrounding the waiver of constitutional rights. It allows individual trial courts, rather than appellate courts, to determine the substance of the law and allows similar facts to lead to different legal results. It thus leaves law enforcement officers with inadequate guidance on what the Fourth Amendment allows and demands. The inherent psychological pressure of being questioned by the police, cultural fear of law enforcement, and a pattern of discriminatory requests to search create situations likely to result in coercion. Although de novo review of voluntariness would lead to added burdens on the appellate docket, courts should grasp the nettle and take steps to unify the law.

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