In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court’s modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court’s framework for analyzing the penalization of chronic alcoholism and, given the Court’s changing stance, call into question the constitutionality of Virginia’s habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court’s Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court’s shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court’s proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia’s habitual drunkard statute under the Court’s changing jurisprudence.
Volume 104
Mining for Meaning: An Examination of the Legality of Property Rights in Space Resources
In November 2015, the Space Resource Exploration and Utilization Act of 2015 (“SREU Act”) became law. Private space companies hoping to mine asteroids for commercial gain rejoiced. For years, such private companies had struggled to obtain adequate funding and support for their revolutionary space missions due to a lack of legal certainty regarding property rights in space under the vague legal framework of the Outer Space Treaty (“OST”). The SREU Act purportedly eliminated this uncertainty by explicitly granting U.S. citizens property rights in any asteroid or space resource recovered for commercial purposes from space.
Nevertheless, much tension remains between this unilateral grant of property rights and the international obligations of the United States under the OST. This Note concludes that the SREU Act abrogates the United States’ international obligations and that the United States should have initiated discussions at the international level first to champion a more effective and long-lasting multilateral solution. Finally, this Note finds this abrogation to be all for naught, as the law itself fails to achieve its goal of providing the private space industry with the legal certainty it so desires and requires.
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.