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Full-Text Articles in Law
A New Takings Clause? The Implications Of Cedar Point Nursery V. Hassid For Property Rights And Moratoria, Benjamin Alexander Mogren
A New Takings Clause? The Implications Of Cedar Point Nursery V. Hassid For Property Rights And Moratoria, Benjamin Alexander Mogren
William & Mary Bill of Rights Journal
In part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a …
Evaluating Emergency Takings: Flattening The Economic Curve, Robert H. Thomas
Evaluating Emergency Takings: Flattening The Economic Curve, Robert H. Thomas
William & Mary Bill of Rights Journal
Desperate times may breed desperate measures, but when do desperate measures undertaken as a response to an emergency trigger the Fifth Amendment’s requirement that the government provides just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power”—a sovereign government’s power to regulate property’s use in order to further the public health, safety, and welfare—and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. After all, emergencies …
Time For A Change In Eminent Domain: A “Dirt Farmer’S” Story Shows Why Just Compensation Should Include Lost Profits, Edward Walton
Time For A Change In Eminent Domain: A “Dirt Farmer’S” Story Shows Why Just Compensation Should Include Lost Profits, Edward Walton
William & Mary Bill of Rights Journal
No abstract provided.
Reverse Exactions, Gregory M. Stein
Reverse Exactions, Gregory M. Stein
William & Mary Bill of Rights Journal
When an owner applies for a permit to use property in a certain way, the government body with jurisdiction can either deny the permit, grant the permit outright, or grant the permit subject to conditions. These conditions—known as “exactions”—must meet two constitutional thresholds. First, there must be a close linkage between a problem the owner’s project will create or exacerbate, such as increased traffic caused by a proposed new shopping mall, and the exaction the government proposes, such as the dedication of land for a new right-turn lane. Second, the condition the government suggests must be proportional in magnitude to …
"Property" In The Constitution: The View From The Third Amendment, Tom W. Bell
"Property" In The Constitution: The View From The Third Amendment, Tom W. Bell
William & Mary Bill of Rights Journal
During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what the term “property” means in the United States Constitution. As a general legal matter, property includes not just real estate—land, fixtures attached thereto, and related rights—but also various kinds of personal property, ranging from tangibles, such as books, to intangibles, such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal …
The Role Of Causation When Determining The Proper Defendant In A Takings Lawsuit, Jan G. Laitos
The Role Of Causation When Determining The Proper Defendant In A Takings Lawsuit, Jan G. Laitos
William & Mary Bill of Rights Journal
No abstract provided.
Kelo's Moral Failure, Laura S. Underkuffler
Kelo's Moral Failure, Laura S. Underkuffler
William & Mary Bill of Rights Journal
Presented at the 2004 Brigham-Kanner Property Rights Conference.
Takings: An Appreciative Retrospective, Eric R. Claeys
Takings: An Appreciative Retrospective, Eric R. Claeys
William & Mary Bill of Rights Journal
Presented at the 2005 Brigham-Kanner Property Rights Conference.
Time To Overturn Turney, Paul A. Lafata
Time To Overturn Turney, Paul A. Lafata
William & Mary Bill of Rights Journal
No abstract provided.
Quieting The Clang: Hathcock As A Model Of The State-Based Protection Of Property Which Kelo Demands, Joshua E. Baker
Quieting The Clang: Hathcock As A Model Of The State-Based Protection Of Property Which Kelo Demands, Joshua E. Baker
William & Mary Bill of Rights Journal
No abstract provided.
"The Loss In My Bones": Protecting African American Heirs' Property With The Public Use Doctrine, April B. Chandler
"The Loss In My Bones": Protecting African American Heirs' Property With The Public Use Doctrine, April B. Chandler
William & Mary Bill of Rights Journal
No abstract provided.
Everyone Benefits, Everyone Pays: Does The Fifth Amendment Mandate Compensation When Property Is Damaged During The Course Of Police Activities?, C. Wayne Owen Jr.
Everyone Benefits, Everyone Pays: Does The Fifth Amendment Mandate Compensation When Property Is Damaged During The Course Of Police Activities?, C. Wayne Owen Jr.
William & Mary Bill of Rights Journal
The Fifth Amendment of the United States Constitution, along with similar provisions in state constitutions, forbids the taking of private property by the government for a public use without just compensation. Despite this protection, many courts have denied takings claims made by innocent third party landowners when police officers caused damage to their property during the course of executing their official duties. These courts held that the damage was not for a "public use" in the narrow sense, and have refused to analyze the claims under takings jurisprudence. This narrow view of "public use" ignores the fact that society as …
Takings And Causation, Jan G. Laitos
Takings And Causation, Jan G. Laitos
William & Mary Bill of Rights Journal
Constitutional protection of private property is grounded in a conflict between two legal principles--the government's power to regulate private property for the common good and the Constitution's limit on this power in the Takings Clause. The Takings Clause's check on government power conforms to John Rawls's philosophy, which rejects the utilitarian beliefs that government may act to achieve* the "good" of maximizing human happiness and that government can force people to trade certain political liberties for an improved distribution of wealth. Under Rawls's theory, the principle of "justice as fairness" limits a government's ability to require some people to bear …