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Full-Text Articles in Law
Property's Problem With Extremes, Lynda L. Butler
Property's Problem With Extremes, Lynda L. Butler
Faculty Publications
Western-style property systems are ill-equipped to deal with extremes--extreme poverty, extreme wealth, extreme environmental harm. Though they can effectively handle many problems, the current systems are inherently incapable of providing the types of reform needed to address extreme situations that are straining the fabric of societies--situations that are stressing the integrity of core societal and natural systems to the breaking point. The American property system, in particular, is problematic. The system has a long tradition of strong individual rights and relies primarily on the efficiency norm to operate and shape the incentives of rights holders. The economic model that now …
Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler
Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler
Faculty Publications
This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …
A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker
A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker
Faculty Publications
The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …
The Governance Function Of Constitutional Property, Lynda L. Butler
The Governance Function Of Constitutional Property, Lynda L. Butler
Faculty Publications
Contemporary takings scholarship has devoted much attention to the problem of regulatory takings and has largely assumed that physical takings are resolved under a clear but simplistic per se rule. Under that rule, modern courts automatically find a physical taking whenever government action causes a permanent physical invasion of property, regardless of the context or the importance of the public interest. Applying this bright-line rule has proved to be difficult because it ignores the nuances of physical takings situations and the complexities of modern property arrangements. Should the physical takings concept apply to a rent control law that limits the …
The Future Of Transferable Development Rights In The Supreme Court, Linda A. Malone
The Future Of Transferable Development Rights In The Supreme Court, Linda A. Malone
Faculty Publications
No abstract provided.
Inverse Liability Of The State Of Wisconsin For A De Facto "Temporary Taking" As A Result Of An Administrative Decision: Zinn V. State, Alemante G. Selassie
Inverse Liability Of The State Of Wisconsin For A De Facto "Temporary Taking" As A Result Of An Administrative Decision: Zinn V. State, Alemante G. Selassie
Faculty Publications
This Note examines Zinn v. State, a Wisconsin Supreme Court decision, which held that plaintiff stated a claim for inverse condemnation against the State of Wisconsin when, as a result of an erroneous quasi-judicial decision by the DNR, plaintiff lost the use of her property for a little longer than a month. This Note takes the position that Zinn represents the growing tendency among courts to enlarge the scope of fact situations in which they will find a taking. Given this tendency, and given that the substantive test in Wisconsin of what constitutes a taking is identical whether a taking …
Legal Concepts In Cases Of Eminent Domain, Joseph M. Cormack
Legal Concepts In Cases Of Eminent Domain, Joseph M. Cormack
Faculty Publications
No abstract provided.