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Buffalo Law Review

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Article

Abstract

In 2018’s Saint Bernard Parish Government v. United States, Federal Appeals Judge Timothy Dyk reversed a lower court decision finding that the federal government had violated the Fifth Amendment’s Takings Clause rights cherished by home-owning New Orleanians. The lower court maintained that such taking occurred via the Army Corps of Engineers’ building, maintaining, and failing to maintain the seventy-six mile long navigational channel known as the Mississippi River-Gulf Outlet (MRGO), which increased the surge storms of Hurricane Katrina. Though MRGO helped turn Katrina into a superstorm that devastated thousands of properties, Judge Dyk determined that the lower court’s takings analysis proved fatally flawed because it pivoted on government omission and failed to consider the totality of circumstances.

In line with my ongoing work in Community Constitutionalism, I study the art of a New Orleans-based collective called Blights Out, whose members have staged performances and actions that protest how people of color have been deprived of property post-Katrina. Through careful analysis of their billboards and engagements, I tease out two legal arguments made by the collective: First, that the government may wrongfully deprive the people of property through omission. Second, that the window of time within which such takings may be discerned proves much wider than that imagined by Judge Dyk’s description of the “totality of circumstances.” Depending on the work of popular constitutionalists and my previous study of the linkages between art and jurisprudence, I conclude that Blights Out’s legal thought offers a powerful rejoinder to Judge Dyk’s analysis, and offers important arguments for the future applications of takings law.

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