Professor of Law
Energy, Environment and Land Use Program
Christopher Serkin’s interest in the conflicts between individual property rights and government power has its roots in two very different environments. Serkin grew up in Marlboro, a small town in southern Vermont, where, he noted, “land and property issues are important to people, and a lot of thought and attention are given to development issues.”
He has spent much of his adult life in New York, where some of the same property laws apply, but to very different effect. As a result, his writing often focuses on the disparities that arise when property laws and regulations created in one context are imposed on another. “I’ve explored the ways in which we sometimes craft one-size-fits-all legal rules, and how badly those map onto New York on the one hand and my small hometown on the other,” he acknowledged. “In my scholarship I try very hard to be attentive to the local political dynamics that are at issue, because I think legal rules should respond to those local differences.”
Serkin also finds property rights compelling because they are often on the front lines in what he views as among the most important political battles across the spectrum of law—the balance between individual rights and government regulation. “In deciding how broadly private rights should be defended against government regulation, we essentially determine how much authority the government has to respond to the social problems of the day and how constrained it must be in its responses,” he said.
Serkin joined Vanderbilt’s law faculty in summer 2013 after teaching property and land use law for eight years at Brooklyn Law School, before which he spent two years teaching in New York University’s lawyering program for first-year students. He has also been a visiting professor at the University of Pennsylvania, New York University, and University of Chicago law schools. He earned his undergraduate degree in philosophy at Yale and then studied law at University of Michigan, where he was a Clarence Darrow Scholar and served on the Michigan Law Review. Serkin clerked in both federal district and appellate courts, and between clerkships practiced for two years at Davis Polk & Wardwell in New York as a litigation associate. During his second clerkship, Serkin realized his true calling was teaching.
Focusing on property and land use law allows Serkin to examine a pragmatic but often tangled system of rules, developed over centuries, through a sophisticated theoretical lens. “I’m interested in the point of intersection between private property rights and the power of the state,” he said. “The very existence of the regulatory state depends on the state’s ability to regulate our property. And the power of government to regulate our property implicates all sorts of issues, such as environmental protection and land use.”
“The very existence of the regulatory state depends on the state’s ability to regulate our property.”
His articles questioning various well-accepted aspects of longstanding property and land use law have attracted national attention since he began publishing in 2005. Serkin often addresses areas where he believes the underpinnings of land use law should be scrutinized more closely. His first major article, “The Meaning of Value: Assessing Just Compensation for Regulatory Takings” (Northwestern University Law Review, 2005), identified the substantive judgments hidden in fair market value determinations for assessing “just compensation” under the Takings Clause. He identified different mechanisms courts use—often without acknowledgment—to reach predictably different results, from deciding the timing of the valuation to including the impact of permissible but enacted regulations, among many others. Serkin then traced these various approaches to different underlying theories of property. His article illuminates how and why a seemingly mechanical doctrine actually implicates different conceptions of the property and property rights at the most theoretical level. “It is settled law that compensation or takings is measured by the fair market value of the property taken, but this standard hides a number of important decisions that can dramatically alter a property owner’s recovery,” he said.
Serkin also enjoys examining aspects of property law that have a long tradition of reflexive acceptance, such as the strong protection for existing property uses. In “Existing Uses and the Limits of Land Use Regulations” (New York University Law Review, 2009), he concluded that “existing (land) uses should not be entitled to any special judicial protection but instead should be subject to the same takings and due process analysis that applies to all regulations and government actions.” When it comes to protecting prospective development plans, Serkin noted, the law takes a nuanced approach that balances a number of considerations. “But once a use is in place, nuance ends and the protection becomes near absolute,” he said. “I think it’s valid to ask why current law provides more protection for a decrepit shack in the woods than to a developer’s plans to build a multimillion-dollar housing complex.” He argues that conventional takings jurisprudence should look beyond whether a use is in place to broader considerations of owners’ reasonable expectations.
His most recent work focuses on anti-entrenchment laws—rules that prevent governments from passing legislation that cannot be repealed. “These rules ensure that subsequent governments are free to revisit the policy choices of the past,” he said, “but local governments have become particularly adept at using private law mechanisms like contracts to make binding future commitments just when many states have dramatically restricted the power of eminent domain. In my view, this has the unintended and troubling consequence of reducing the government’s future policy flexibility in ways people haven’t noticed before.” In “Public Entrenchment Through Private Law” (Chicago Law Review, 2011) he observes, for example, that a local government cannot pass an unrepealable zoning ordinance, but it can achieve almost the same result by acquiring property and donating conservation easements to a third party. “Only the existence of eminent domain ensures policy flexibility in such situations,” he said.
In a piece he is currently working on, Serkin poses the provocative question of whether the government can violate the Takings Clause by inaction—specifically, by failing to protect private property. His question was sparked in part by the enactment of a recent North Carolina state law that prohibits property developers from using the latest scientific predictions of rising sea levels due to climate change in their development proposals. The law attracted national press coverage and was mocked on Comedy Central’s The Colbert Report. “If your science gives you a result you don’t like, pass a law saying the result is illegal. Problem solved!” comedian Stephen Colbert joked. Serkin cites a simpler example with a longer history—laws prohibiting owners of beachfront property from building protective sea walls. “At the time these laws were enacted, they weren’t problematic,” Serkin said. “But what happens when sea levels rise, and property owners are prohibited from defending their property? My challenge is to figure out if and when government omission can violate the Takings Clause.”
In one of his most provocative pieces, “Suing Courts” (Chicago Law Review, 2012), he and co-author Frederick Bloom focus on judicial property takings to explore the potential for what Serkin describes as “a new and unexpected mechanism of judicial accountability”: suing courts. In a recent and controversial decision, a plurality of the Supreme Court reasoned that a state court could violate the Takings Clause in its interpretation of state property law. Serkin and Bloom argue that state supreme courts cannot be wrong about the substantive content of property rights, because state courts are the final interpreters of state property law. But he and Bloom argue that the real purpose of the Takings Clause is to provide relief for property owners who are adversely affected by socially beneficial changes in the law. “Under current Takings doctrine, a state court has only two choices when considering a new rule: Reject it, or adopt it and let the burdens fall where they may,” Serkin explained. “Providing a damages remedy to property owners who have been asked to shoulder an unreasonable amount of the burden provides a third way, offering courts additional flexibility to change the law while easing the costs of legal transitions. We show how suing courts can simultaneously discipline judges and liberate them.”
At Vanderbilt, Serkin has joined the Energy, Environment and Land Use program, and teaches courses in Local Government Law and Property. He is one of four co-authors of a new casebook, Land Use Controls: Cases and Materials (Aspen), and is the author of a student-oriented book, The Law of Property (2013), part of the Concepts and Insights series for Foundation Press.
Outside of his teaching career, Serkin is vice president of the board of the Marlboro Music Festival, a chamber music festival his grandfather, famed pianist Rodolf Serkin, and great grandfather, violinist Adolf Busch, established with other family members in 1951. “My whole family is musical except me,” Serkin said. “Instead of practicing an instrument, I practice law.”