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A Million Little Takings


Drury D. Stevenson


South Texas College of Law

February 16, 2011

UPENN J. Law & Soc. Change, Vol. 14 (2011)

Abstract:     
IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics).

IOLTA takings also highlight a puzzling gap in our legal system between eminent domain law and administrative law. Eminent domain law tends to downplay the importance of procedure itself for government actions, often allowing states to proceed without regard to procedural due process as long as the victims of takings can bring inverse condemnation actions after the fact. Administrative law, in contrast, includes a long line of Supreme Court precedents that emphasize the importance of procedure itself as a component of due process and fairness; state infringements on the “property interests” of individuals can face reversal simply because an agency failed to provide a fair hearing beforehand.

The ensuing discussion also reaches three inherent tensions or puzzles with public funding of legal services for the poor: crowding-out effects, monopoly/single-payer system problems, and the moral hazard problems with providing free lawyers for the poor. This article addresses, apparently for the first time, these three (rather significant) concerns as they pertain to IOLTA or legal services in general. I offer some modest policy reforms in response to these issues.

Number of Pages in PDF File: 51

Keywords: takings, eminent domain, IOLTA, lawyers, attorneys, pro bono, poverty, legal aid, legal services, crowding

JEL Classification: D73, H41, H42, H71, H53, I38, K11, K19, K23, K49, L31, L33,

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Date posted: January 30, 2010 ; Last revised: September 29, 2013

Suggested Citation

Stevenson, Drury D., A Million Little Takings (February 16, 2011). UPENN J. Law & Soc. Change, Vol. 14 (2011). Available at SSRN: http://ssrn.com/abstract=1544497 or http://dx.doi.org/10.2139/ssrn.1544497

Contact Information

Drury D. Stevenson (Contact Author)
South Texas College of Law ( email )
1303 San Jacinto Street
Houston, TX 77002
United States
713-646-1897 (Phone)
HOME PAGE: http://www.stcl.edu
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