Real Estate & Property Law

Harvard Law Review On The "Ceded Lands" Case

By Robert Thomas (inversecondemnation.com)

In its annual summary of the U.S. Supreme Court term, the Harvard Law Review addresses the Court's most important decisions, and this year includes the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1463 (2009). [Disclosure: we filed a brief in the case in support of the State, available here]. The case summaries are not attributed to a particular author, and are the product of the editorial board (student authors). The summary is available here (123 Harv. L. Rev. 302 (2009)).

The article argues that the Court should have given the Apology Resolution legal meaning, because doing otherwise "perpetuat[ed] an understanding of political rhetoric as meaningless and impotent."

If Congress viewed an apology as an essentially impotent act that merely expresses goodwill, then it would be hard to explain the resistance that proposed apologies consistently face. In fact, only Japanese internment, the Hawaiian overthrow, and slavery have received congressional apologies. Moreover, the Apology Resolution itself was not treated as uncontroversially empty rhetoric by Congress. Senator Slade Gorton worried that the Resolution was far from impotent, explaining, "[T]he logical consequences of this resolution would be independence." With equal dramatic flair, Senator Daniel Akaka described the Resolution as "finally acknowledg[ing] Queen Liliuokalani?s plea for justice."

123 Harv. L. Rev. at 311 (footnotes omitted).

Several thoughts. First, attempting to give meaning to political rhetoric seems like a fool's errand. Political rhetoric is, by definition, meaningless, because Congress has the power to do legally meaningful acts: if Congress wants to do something it can pass a law, not just talk about it. Second, pointing to resistance to the adoption of official apologies as an indication that Congress intends them to have meaning is nonsense. What Sen. Gorton objected to was not that Congress would ascribe meaning to the Apology Resolution, but that others would try to. Which is exactly what happened. And it took years of litigation and a unanimous Supreme Court to hold otherwise.

Finally, we're not sure what to make of the article's final sentence:

The Court should instead take seriously the possibility that congressional language may be legally significant, even where it is not, strictly speaking, used to create legal rights.

123 Harv. L. Rev. at 312. Is there a difference between "legally significant" language and an enforceable legal right? If there is, can someone explain it to us?

For just about everything you ever wanted to know about the ceded land case, including the opinion of the court, the briefs and oral argument summaries, visit our ceded lands case resource page.

Full post as published by inversecondemnation on December 09, 2009 (boomark / email).