Law Commons^™

Nollan V. California Coastal Commission: You Can't Always Get What You Want, But Sometimes You Get What You Need, Timothy A. Bittle

Pepperdine Law Review

No abstract provided.

Eminent Domain For The Seizure Of Underwater Mortgages, Sarah Thompson

University of Michigan Journal of Law Reform Caveat

Like many cities in the United States, Richmond, California suffered greatly from the recent mortgage crisis. The foreclosure crisis hit Richmond hard in 2009, when more than 2,000 homes in Richmond went into foreclosure. This figure is especially shocking given that there were 18,659 owner-occupied housing units in the city at that time. In 2012, the city saw an additional 914 foreclosures and a foreclosure rate of thirty out of 1,000 homes (well above the national average of thirteen of every 1,000 homes). Today, it is reported that nearly forty-six percent of homes in Richmond are “underwater,” meaning that what …

Administrative Mandamus As A Prerequisite To Inverse Condemnation: "Healing" California's Confused Takings Law , Sharon L. Browne

Pepperdine Law Review

This article addresses and reviews the distinctions in purpose and scope between actions for inverse condemnation and petitions for administrative writs, traces the blending of these two very different instruments by the California courts, and shows how this policy has subverted constitutional rights in California.

Taking The Wind Out Of The Government's Sails?: Forfeitures And Just Compensation, J. Kelly Strader

Pepperdine Law Review

No abstract provided.

Ethnic And Racial Minorities, The Indigent, The Elderly, And Eminent Domain: Assessing The Virginia Model Of Reform, Jim Bailey

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Peculiar Circumstances Of Eminent Domain In India, Priya S. Gupta

Osgoode Hall Law Journal

The question of a constitutional property regime governing eminent domain gave rise to nuanced and principled debates in the Constituent Assembly of India, which drafted the Indian Constitution between 1947 and 1950, and in subsequent Parliamentary meetings regarding constitutional amendments. However, these extensive deliberations resulted in a clause that only addressed the most superficial aspects of property rights in India. Similarly, the statutory frameworks that govern state acquisition of land, in particular The Land Acquisition Act, 1894, provide only another part of the puzzle. This paper starts earlier in history-at the inception of eminent domain in India-in order to put …

The Public Use Clause: Constitutional Mandate Or "Hortatory Fluff"?, Gideon Kanner

Pepperdine Law Review

No abstract provided.

Against Mushy Balancing Tests In Blight Condemnation Jurisprudence, Roderick M. Hills

Fordham Urban Law Journal

Professor Somin has written an incisive critique of the New York Court of Appeals’ decisions in Kaur and Goldstein, the gist of which is that the Court did not do enough to stop “highly abusive blight condemnations.” There are, however, two difficulties with the critique. First, as a matter of legalistic interpretation of the New York Constitution, the critique is not very persuasive. Second, as a matter of policy, Professor Somin’s proposal is unlikely to be adopted by any judge influenced by the same political process that lead to the condemnations that Professor Somin attacks.

The Market Value Rule Of Damages And The Death Of Irreparable Injury, Patrick Luff

Cleveland State Law Review

A fundamental principle of remedies is that the remedy should be sufficient to place the injured party in the position he would have occupied but for the wrong suffered. But law and equity come to very different conclusions about what remedy is sufficient to restore a plaintiff to his status quo ante when real property, rare property, and property with high sentimental but low market value are involved. Equity treats the loss of these items as irreparable injury, meaning that damages are not adequate to compensate the victim for their loss. But if the real property is seized in eminent …

The Wholesale Decommissioning Of Vacant Urban Neighborhoods: Smart Decline, Public-Purpose Takings, And The Legality Of Shrinking Cities, Ben Beckman

Cleveland State Law Review

This Note is principally concerned with those takings that arise from the State's exercise of eminent domain, either directly or through the State's designee. To put a finer point on it, this Note addresses the distinction that property-rights advocates have developed to delegitimize certain types of takings. This distinction divides condemnations into disfavored-yet-legitimate takings-the direct-government-use and common-carrier takings-and ostensibly illegitimate public-purpose takings. The property-rights movement unequivocally places economic-development takings in the illegitimate category. The status of blight-remediation takings is ambiguous but tends toward legitimacy.

Public Use, Public Choice, And The Urban Growth Machine: Competing Political Economies Of Takings Law, Daniel A. Lyons

University of Michigan Journal of Law Reform

The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. …

Residential Protectionism And The Legal Mythology Of Home, Stephanie M. Stern

Michigan Law Review

The theory that one's home is a psychologically special form of property has become a cherished principle of property law, cited by legislators and touted extensively in the legal scholarship. Influential scholars, most notably Margaret Radin, have asserted that ongoing control over one's home is necessary for an individual's very personhood and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting individuals in communities of close-knit social ties. Remarkably, the legal academy has accepted these theoretical accounts of the home without demanding a shred of empirical evidence. The misplaced belief in the …

Supreme Neglect Of Text And History, William Michael Treanor

Michigan Law Review

Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …

Property And Relative Status, Nestor M. Davidson

Michigan Law Review

Property does many things-it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies. This status-signalingf unction of property-withp roperty serving as an important locus for symbolic meaning through which people compare themselves to others-complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading …

One May V. The 800-Pound Gorilla: An Argument For Truly Just Compensation In Condemnation Proceedings, Allison Minton

West Virginia Law Review

No abstract provided.

Real Estate Law, Richard W. Gregory, Lindsey Dobbs Chase

University of Richmond Law Review

No abstract provided.

The Policy Power And "Pubic Use": Balancing The Public Interest Against Private Rights Through Principled Constitutional Distinctions, Christopher Supino

West Virginia Law Review

No abstract provided.

Privatizing Eminent Domain: The Delegation Of A Very Public Power To Private, Non-Profit And Charitable Corporations , Asmara Tekle Johnson

American University Law Review

In an age of privatization of many governmental functions such as health care, prison management, and warfare, this Article poses the question as to whether eminent domain should be among them. Unlike other privatized functions, eminent domain is a traditionally governmental and highly coercive power, akin to the government’s power to tax, to arrest individuals, and to license. It is, therefore, a very public power.

In particular, the delegation of this very public power to private, non-profit and charitable corporations has escaped the scrutiny that for-profit private actors have attracted in the wake of the U.S. Supreme Court’s decision in …

Eminent Domain: A Legal And Economic Critique, Nadia E. Nedzel, Walter Block

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Resolving The Intergenerational Conflicts Of Real Property Law: Preserving Free Markets And Personal Autonomy For Future Generations, Gerald Korngold

American University Law Review

This article argues that land allocation agreements (e.g., deeds, mortgages, covenants, easements, etc.) made today will have a profound and perhaps negative effect on owners in future generations. It shows that the current architecture of the land transaction system and related rules unduly favor current owners over successors, causing a negative impact on land markets and choices of future players. Moreover, the article demonstrates that current doctrine and theory do not provide adequate flexibility for future generations to deal with outmoded land allocation agreements, leading to inefficiencies and frustration of the personal autonomy of future owners. The article suggests a …

The Downlow On Kelo: How An Expansive Interpretation Of The Public Use Clause Has Opened The Floodgates For Eminent Domain Abuse, Eric L. Silkwood

West Virginia Law Review

No abstract provided.

Kelo V. City Of New London: A Reduction Of Property Rights But A Tool To Combat Urban Sprawl, Gregory V. Jolivette Jr.

Cleveland State Law Review

This Note will analyze the two opposing interests of property owners and of cities in the context of the Supreme Court's Public Use Clause jurisprudence and show that while the Court's decision in Kelo may have diminished property rights, the decision could render an overriding positive impact on combating urban sprawl. Part II defines urban sprawl and identifies some of its associated costs. Part III briefly describes Public Use Clause jurisprudence prior to the Supreme Court's ruling in Kelo. Part IV discusses the Court's opinion in Kelo and Justice Kennedy's concurrence. Part V examines the substantial criticism of Kelo and …

Condemned If They Do, Condemned If They Don't: Eminent Domain, Public Use Abandonment, And The Need For Condemnee Protections, Cristin Kent

Seattle University Law Review

This Comment is divided into six parts. Part II examines the historical and constitutional understandings and application of eminent domain and the public use requirement. Part III analyzes cases decided under the U.S. and Washington constitutions in which courts upheld condemnors' rights to abandon or fail to fulfill the public use of the condemned property. Part IV discusses cases outside of Washington in which courts have upheld the validity of takings even though the condemnor subsequently abandoned or failed to fulfill the public use. These cases illustrate the need for more substantive and procedural protections for condemnees. Part V argues …

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Michigan Law Review

This Article challenges a foundational assumption about eminent domain- namely, that owners are systematically undercompensated because they receive only fair market value for their property. In fact, scholars may have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. The Article examines three ways that "Takers" (i.e., nonjudicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high subjective value properties. (By way of illustration, Professor Garnett discusses evidence that Chicago's freeways were rerouted in the 1950s to avoid …

The "Public Use" Of Private Sports Stadiums: Kelo Hits A Homerun For Private Developers, Cristin F. Hartzog

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note briefly discusses the principle of eminent domain and the evolution of the Supreme Court's interpretation of the Takings Clause. Part II analyzes the application of the Court's interpretations of the "public use" requirement of the Takings Clause on the issue of whether it is proper for a state to exercise its power of eminent domain pursuant to a stadium development project. Finally, Part III offers a solution to the conflict between property owners' interests in keeping their land and cities' interests in creating economic growth.

The Kelo Threshold: Private Property And Public Use Reconsidered, Steven E. Buckingham

University of Richmond Law Review

No abstract provided.

Making Eminent Domain Humane, Ralph Nader, Alan Hirsch

Villanova Law Review

No abstract provided.

A Second Take: Re-Examining Our Regulatory Takings Jurisprudence Post-Tahoe, Robert W. Diubaldo

Fordham Urban Law Journal

This Note discusses the aftermath of the landmark case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agencey. This Comment first discusses the background of regulatory takings jurisprudence, from Justice Holmes' landmark Pennsylvania Coal opinion to the present. It further analyzes the recent Tahoe decision, focusing on both the strengths and weaknesses of the decision and its potential impact on the future of takings. Finally, the Comment offers a different analytical framework from which to analyze regulatory takings. Under this theory, courts would abandon the partial/total distinction, and instead focus on the actual loss from the landowner's point of view. …

Pliability Rules, Abraham Bell, Gideon Parchomovsky

Michigan Law Review

In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …

Property Law: The Uniform Conservation Easements Act: An Attorney's Guide For The Oklahoma Landowner, Erin Mcdaniel

Oklahoma Law Review

No abstract provided.