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Constitutional Law

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Non-Enforcement Takings, Timothy M. Mulvaney Jul 2018

Non-Enforcement Takings, Timothy M. Mulvaney

Timothy M. Mulvaney

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …


Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann Jun 2018

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

Felix Mormann

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …


Still An Issue: The Taking Issue At 40, Patricia E. Salkin Jun 2014

Still An Issue: The Taking Issue At 40, Patricia E. Salkin

Patricia E. Salkin

In October 2013, with the launch of Touro Law Center’s new Institute on Land Use and Sustainable Development Law, the Touro Law Review held a symposium to commemorate the 40th anniversary of “The Taking Issue: A Study of the Constitutional Limits of Governmental Authority to Regulate the Use of Privately-Owned Land Without Paying Compensation to the Owners” (The Takings Issue), the Council on Environmental Quality’s seminal report by Fred Bosselman, David Callies and John Banta. For this symposium Touro Law Review assembled some of today’s leading luminaries to reflect on how the taking issue has evolved and to assess where …


The Frictions Of Federalism: The Rise And Fall Of The Federal Common Law Of Interstate Nuisance, Robert V. Percival Nov 2009

The Frictions Of Federalism: The Rise And Fall Of The Federal Common Law Of Interstate Nuisance, Robert V. Percival

Robert Percival

Prior to the erection in the 1970s of a comprehensive federal regulatory infrastructure to protect the environment, transboundary pollution disputes frequently were adjudicated by the U.S. Supreme Court, exercising its original jurisdiction over disputes between states. In a series of cases commencing at the dawn of the Twentieth Century, the Court served as a national arbiter of interstate pollution disputes. This paper reviews the history of the Supreme Court's use of these cases to develop a federal common law of interstate nuisance. The paper argues that while federal common law initially performed a zoning function by encouraging polluters to relocate …