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  #881  
Old Posted Sep 23, 2018, 5:04 PM
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But then what uses, exactly, are permitted by public trust doctrine? Most of the uses in the Obama Center are akin to those uses already common in our public parks. Museum, field house, underground parking, archives. Many of those improvements in our parks are also owned and/or operated by private entities.

Just as with the Lucas Museum, I fail to see how the Obama Center is materially different from the many other public institutions that exist in Chicago’s parks and, apparently, are entirely legal. How is it any different from the Peggy Notebaert Museum, to use a recent example?
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  #882  
Old Posted Sep 24, 2018, 12:18 AM
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One of the frustrations of our common-law system is that there's no list you can consult showing exactly what is and isn't allowed. Instead, common law evolves as society confronts new challenges, and we have to decide which precedents offer the proper analogy. As for the public-trust doctrine in Illinois, we know that lakebed can be sold to adjacent landowners to finance and allow for the construction of Lake Shore Drive, but can't be sold to the Illinois Central Railroad for a mere locomotive shop. It can't be sold to U.S. Steel for expansion of South Works, and can’t be sold to Loyola University for a college campus, even one with a public park along the lakeshore. (A similar sale to Northwestern in 1961 was never challenged). It can be leased for McCormick Place, and can be used for Soldier Field. The other museums in Burnham Park were built prior to the expansion of the doctrine in the 1960s, and so far as I know were never challenged.

The decision denying Loyola University public trust property suggests that a mere public purpose or generous public use policy isn’t enough to overcome the doctrine, and that control is as important as purpose. See Lake Mich. Fed. v. US Army Corps of Engineers, 742 F. Supp. 441 (N.D. Ill. 1990). The 297-year Lucas lease might have passed muster, but the city called the whole thing off rather than show the documents to the federal court.

Now none of this is relevant to the Obama Center, which (like Notebaert, DuSable, or Science & Industry) is not going on public trust land. We know from Paepcke v. Public Building Comm., 46 Ill. 2d 330 (1970) that there's no problem with a local park district turning over parkland for other public purposes, including schools, and that the determination is generally one for the legislature, not the courts. The Museums Act amendments passed in 2016 would seem to cover the matter. The Protect Our Parks lawsuit is apparently based on due process claims (I have not read the pleadings). As I've said before, I'm not optimistic about POP's chances.
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  #883  
Old Posted Sep 24, 2018, 2:41 PM
Notyrview Notyrview is offline
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Don't get blinded by the term natural law used in the cited law review article. Illinois Central is still good law, and I know of no Supreme Court cases questioning it. I find myself wondering if you've ever even read it.

Congress has only the specific powers enumerated in Article 1 Section 8. The Commerce Clause has been stretched quite a bit, but as noted in U.S. v. Lopez, 514 U.S. 549 (1995), that power is not infinitely elastic. But as a bedrock principle of federalism, Congress is irrelevant here. Since the State of Illinois lacks the authority to alienate the waters of Lake Michigan, it cannot delegate that authority to the City of Chicago; nor can it grant that authority to Congress.
Federalism is a bedrock principle until it's not. For the last 100 years, the Court has reversed the flow of powers as a necessity bc you can't have a weak federal government in a global economy; but more so than that, too often the states just get it wrong, e.g., segregation, pollution, anti-gay legislation, and even those things are tied to the reputation of the U.S. in a global economy.

If Congress really needed to alienate the waters of Lake Michigan, it could do so, and the Court would uphold it based on Commerce or some other powers. Because just like you say, the law is fluid, and these precedents are subject to changing circumstances. That part I really agree with you on. The law is only rational when interpreted vis-a-vis a specific set of facts/context.
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  #884  
Old Posted Sep 24, 2018, 5:43 PM
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^You seem determined to see this through the lens of the 20th century's expansion of the Commerce Clause when it's an entirely different question. It's not a matter of whether something is properly done by the states or by the feds; Illinois Central stands for the proposition that there are some things that even the sovereign may not do.

Illinois Central is settled law, relied on by decades of important environmental decisions. The only thing that could change that would be a constitutional amendment or a Supreme Court decision reversing Illinois Central.
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  #885  
Old Posted Sep 25, 2018, 4:23 AM
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IMO the Loyola decision was a mistake, the public benefit there was significant. But I also think Lake Shore Drive should be extended to the city limit in conjunction with more parkland, so apparently I’m crazy.

But anyway, sounds like you’re saying the Obama Center stands on firm legal footing, regardless of whether you agree with it in principle. So why are we arguing again?
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  #886  
Old Posted Sep 25, 2018, 1:40 PM
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I'm not arguing with you; I'm explaining why LouisVanDerWright is wrong when he says

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the State and City could have just changed the law to correct the loophole the parking lot fiends used
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  #887  
Old Posted Sep 25, 2018, 11:36 PM
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I'm confused, is there a legit chance that this project will get blocked, or is this thing a done deal for all intents and purposes?
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  #888  
Old Posted Sep 26, 2018, 4:04 AM
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I put the odds of POP's lawsuit succeeding at no more than 1 in 8, but I had similar predictions for FotP's lawsuit over the Lucas Museum.

There's some speculation that Mayor Emanuel's departure might permit a reëxamination of the site.
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  #889  
Old Posted Sep 26, 2018, 1:32 PM
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I put the odds of POP's lawsuit succeeding at no more than 1 in 8, but I had similar predictions for FotP's lawsuit over the Lucas Museum.

There's some speculation that Mayor Emanuel's departure might permit a reëxamination of the site.
You have made the point of FotP’s lawsuit against Lucas succeeding before, but you seem to forget that we will never know if that lawsuit would’ve won in court, as Lucas skipped town.
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  #890  
Old Posted Sep 26, 2018, 1:43 PM
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Yes, sometimes just turning the light on causes the cockroaches to scatter. Lucas fled town rather than let the judge see the lease agreement.
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  #891  
Old Posted Sep 26, 2018, 2:27 PM
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Hopefully this happens and quickly. That park is pretty dumpy and really needs a shot in the arm.
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  #892  
Old Posted Sep 26, 2018, 3:12 PM
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Does it, really? In what way? Have you actually walked through this part of Jackson Park recently? Wooded Island and the surrounding lagoon have been completely reconstructed in the last five years, and birds and birders flock there in spring and fall. The current athletic field is well-used. This area of the park is very popular with picnickers and African-American family gatherings.

If the recreational needs of Jackson Park need to be reassessed or improved, why not do that through the Jackson Park Framework Plan rather than announce three big projects (presidential center, new super golf course, Yoko Ono artwork) that don't have anything to do with each other and then try to juggle things like Cornell Drive around so they fit?
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  #893  
Old Posted Sep 26, 2018, 9:42 PM
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Golf Course aside... why not do it they way they are doing it by eliminating Cornell, bringing in a new art installation, and a new institution that will have international attraction that will only bring MORE visitors and MORE green space to the park?....

I guess change and progress are hard for you?

Oh, and I have walked through the park recently and enjoyed both the Wooded Island and the Yoko Ono installation...
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  #894  
Old Posted Sep 26, 2018, 9:58 PM
Notyrview Notyrview is offline
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^You seem determined to see this through the lens of the 20th century's expansion of the Commerce Clause when it's an entirely different question. It's not a matter of whether something is properly done by the states or by the feds; Illinois Central stands for the proposition that there are some things that even the sovereign may not do.

Illinois Central is settled law, relied on by decades of important environmental decisions. The only thing that could change that would be a constitutional amendment or a Supreme Court decision reversing Illinois Central.
It is simply your opinion that this case is binding. But if the facts and circumstances favored the governments position as completely reasonable and just downright good for the public at large, the court would almost surely carve out an exception. As you said yourself, the common law is messy, and that's because the essence of the common law is change. A court case from 1892 is obviously going to have some serious problems when applied to modern life and there's nothing to stop a thoughtful Court from revisiting its assumptions or interpreting it more narrowly.
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  #895  
Old Posted Sep 26, 2018, 10:01 PM
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Quote:
Originally Posted by Mr Downtown View Post
^You seem determined to see this through the lens of the 20th century's expansion of the Commerce Clause when it's an entirely different question. It's not a matter of whether something is properly done by the states or by the feds; Illinois Central stands for the proposition that there are some things that even the sovereign may not do.

Illinois Central is settled law, relied on by decades of important environmental decisions. The only thing that could change that would be a constitutional amendment or a Supreme Court decision reversing Illinois Central.
The "sovereign"? You mean the Queen?
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  #896  
Old Posted Sep 26, 2018, 10:10 PM
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The "sovereign"? You mean the Queen?
It's a legal/political term for whatever the dominant power in society is and it's loaded with some really fascinating questions about where power originates.
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  #897  
Old Posted Sep 26, 2018, 11:11 PM
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It's a legal/political term for whatever the dominant power in society is and it's loaded with some really fascinating questions about where power originates.
I'm quite sure TUP knows the definition quite well. His was a tongue and cheek response. [1]

I'll help you out now



​ [1]
meant to be understood as a joke, although it might appear to be serious:
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  #898  
Old Posted Sep 26, 2018, 11:16 PM
Notyrview Notyrview is offline
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I'm quite sure TUP knows the definition quite well. His was a tongue and cheek response. [1]

I'll help you out now



​ [1]
meant to be understood as a joke, although it might appear to be serious:
Are you drunk again? you always hit the return key too many times when you’re in a blackout
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  #899  
Old Posted Sep 27, 2018, 2:38 PM
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It's a legal/political term for whatever the dominant power in society is and it's loaded with some really fascinating questions about where power originates.
Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.
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  #900  
Old Posted Sep 27, 2018, 4:03 PM
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Originally Posted by Chi-Sky21 View Post
Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.
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