Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Touro University Jacob D. Fuchsberg Law Center (8)
- University of Maine School of Law (3)
- Seattle University School of Law (2)
- Chicago-Kent College of Law (1)
- Cleveland State University (1)
-
- Northwestern Pritzker School of Law (1)
- Notre Dame Law School (1)
- Pepperdine University (1)
- The University of Akron (1)
- University of Arkansas at Little Rock William H. Bowen School of Law (1)
- University of Montana (1)
- University of Oklahoma College of Law (1)
- Vanderbilt University Law School (1)
- Washington and Lee University School of Law (1)
- Publication Year
- Publication
-
- Touro Law Review (8)
- Maine Law Review (3)
- Seattle University Law Review (2)
- Akron Law Review (1)
- Chicago-Kent Law Review (1)
-
- Cleveland State Law Review (1)
- Northwestern University Law Review (1)
- Notre Dame Law Review (1)
- Oklahoma Law Review (1)
- Pepperdine Law Review (1)
- Public Land & Resources Law Review (1)
- University of Arkansas at Little Rock Law Review (1)
- Vanderbilt Journal of Entertainment & Technology Law (1)
- Washington and Lee Law Review (1)
Articles 1 - 24 of 24
Full-Text Articles in Law
Give Or Take—Is The Droit De Suite A Taking Without Just Compensation?, Jeremy Cohen
Give Or Take—Is The Droit De Suite A Taking Without Just Compensation?, Jeremy Cohen
Pepperdine Law Review
The Constitution mandates Congress to protect the arts and sciences directly by creating an exclusive right called copyright. However, visual artists such as painters, sculptors, and photographers in the United States still cannot participate in the significant profits from the secondary sales of their copyrighted works at public and private auctions. In over eighty countries worldwide, the droit de suite, also known as the Artist Resale Royalty (ARR), grants visual artists such royalties. Unfortunately, the United States currently lacks such a royalty, despite multiple unsuccessful attempts by Congress to pass federal legislation. Although California enacted its own version of the …
“Public Use” Or Public Abuse? A New Test For Public Use In Light Of Kelo, Taylor Haines
“Public Use” Or Public Abuse? A New Test For Public Use In Light Of Kelo, Taylor Haines
Seattle University Law Review
The Takings Clause of the Fifth Amendment has long been controversial. It allows the government to take private property for the purpose of “public use.” But what does public use mean? The definition is one of judicial interpretation. It has evolved from the original meaning intended by the drafters of the Constitution. Now, the meaning is extremely broad. This Note argues that both the original and contemporary meaning of public use are problematic. It explores the issues with both definitions and suggests a new test, solidified in legislation instead of judicial interpretation.
Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy
Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy
Maine Law Review
In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …
Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy
Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy
Maine Law Review
In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …
President Trump's Big Beautiful Wall: Discrimination, Eminent Domain, And The Public Use Requirement, Meghan K. Tierney
President Trump's Big Beautiful Wall: Discrimination, Eminent Domain, And The Public Use Requirement, Meghan K. Tierney
Chicago-Kent Law Review
At a press conference held in Trump Tower New York City on June 16, 2015, Donald Trump announced his candidacy for President of the United States by promising to expand the border wall along the Southern United States. President Trump has insisted that his only reasons behind completely separating the United States from Mexico are to curtail illegal immigration and curb drug cartel activity, but many argue that his statements indicate a much more sinister motive based in racial discrimination. The public use requirement of the Fifth Amendment Takings Clause allows the federal government to take private land for the …
Please Don't Stop The Music: Using The Takings Clause To Protect Inmates' Digital Music, Amber M. Banks
Please Don't Stop The Music: Using The Takings Clause To Protect Inmates' Digital Music, Amber M. Banks
Vanderbilt Journal of Entertainment & Technology Law
In prisons across the country, inmates are encouraged to participate in digital media programs. One in ten correctional facilities in the US has digital media programs in which inmates purchase both a device-such as an MP3 player or tablet-and content or services for the device-such as digital music-from a third-party vendor. Although fee structures vary, the facility or the state corrections department usually receives a commission on the revenue generated from inmates' purchases, thereby profiting off of each purchase that an inmate makes. As their contracts with third-party vendors end, state correctional departments may change vendors, either in search of …
The Public Trust Doctrine: The Development Of New York’S Doctrine And How It Can Improve, Steven Fink
The Public Trust Doctrine: The Development Of New York’S Doctrine And How It Can Improve, Steven Fink
Touro Law Review
No abstract provided.
Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier
Maine Law Review
In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Supreme Court held that a moratorium on development imposed during the process of devising a comprehensive land use plan did not constitute a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. The scope of Tahoe-Sierra, and thus its ultimate impact on Supreme Court takings jurisprudence, had been severely narrowed and redefined by the courts since the landowners first alleged a taking over fifteen years before the issue was ultimately decided by the Supreme Court. It is important to note that this …
Murr V. Wisconsin, Nathan A. Burke
Murr V. Wisconsin, Nathan A. Burke
Public Land & Resources Law Review
In Murr v. Wisconsin, the Court redefined how to determine private property for a regulatory taking under the Fifth Amendment. Previously, courts have primarily relied on state property principles to determine the relevant unit of property for a regulatory takings claim. However, in this case, the Court adopted a three-factor standard to determine the landowner’s reasonable expectations regarding the treatment of their property. By relying on these factors rather than only on state laws, the Court created a litigation-specific definition of property that could potentially differ from state property boundaries. The three-factor standard may also give the government an …
Stop The Reach: Solving The Judicial Takings Problem By Objectively Defining Property, Steven C. Begakis
Stop The Reach: Solving The Judicial Takings Problem By Objectively Defining Property, Steven C. Begakis
Notre Dame Law Review
The future of judicial takings may rest on the ability of the Court to define property in a robust and objective way. Property has essential characteristics that make it easily identifiable, the most significant of which are the rights to exclude and use. However, even when a property right does not fit within a neat categorical definition, should that right have a long, well established pedigree in state court precedent, that property right is similarly within the capacity of the reviewing court to identify. And once it is determined that, prior to the judgment, the petitioners possessed a clearly defined …
Taking Patents, Gregory Dolin, Irena D. Manta
Taking Patents, Gregory Dolin, Irena D. Manta
Washington and Lee Law Review
The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The …
I'M In The Pursuit Of Your Property: How The Government Disguises A Taking, Amanda Miller
I'M In The Pursuit Of Your Property: How The Government Disguises A Taking, Amanda Miller
Touro Law Review
No abstract provided.
Private Property, The Takings Clause And The Pursuit Of Market Gain, Charles H. Clarke
Private Property, The Takings Clause And The Pursuit Of Market Gain, Charles H. Clarke
Akron Law Review
This Article proposes a fair return model for the takings clause. This conception of the clause has been an operating principle of welfare capitalism for decades. The Article rejects the model of laissez faire capitalism that once dominated the landscape of the nation's constitutional system and may come back again.
The Politics Of The Takings Clauses, Mila Versteeg
The Politics Of The Takings Clauses, Mila Versteeg
Northwestern University Law Review
A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain …
Supreme Court, New York County, Uhlfelder V. Weinshall, David Schoenhaar
Supreme Court, New York County, Uhlfelder V. Weinshall, David Schoenhaar
Touro Law Review
No abstract provided.
The Art Of Stripping: How The Government Applies The Takings Clause To Strip You Of Your Property, Toni Kong
The Art Of Stripping: How The Government Applies The Takings Clause To Strip You Of Your Property, Toni Kong
Touro Law Review
No abstract provided.
The "Parcel As A Whole" In Context: Shifting The Benefits And Burdens Of Economic Life - Or Not, Edward J. Sullivan, Karin Power
The "Parcel As A Whole" In Context: Shifting The Benefits And Burdens Of Economic Life - Or Not, Edward J. Sullivan, Karin Power
Touro Law Review
No abstract provided.
The Rebirth Of Federal Takings Review? The Courts’ “Prudential” Answer To Williamson County’S Flawed State Litigation Ripeness Requirement, J. David Breemer
The Rebirth Of Federal Takings Review? The Courts’ “Prudential” Answer To Williamson County’S Flawed State Litigation Ripeness Requirement, J. David Breemer
Touro Law Review
This article reviews recent federal court decisions that have loosened the state litigation ripeness barrier to federal takings review based on its “prudential” character. Part II provides relevant background on Williamson County and the development of the state litigation rule. It explores the logic underlying the rule and the problems it causes in application. Part III reviews the judicial shift away from a jurisdictional understanding of the state litigation rule—under which compliance with the rule is a prerequisite to a court’s power to hear a takings claim—to a prudential view in which application of the state litigation rule lies within …
The Common Law Foundations Of The Takings Clause: The Disconnect Between Public And Private Law, Richard A. Epstein
The Common Law Foundations Of The Takings Clause: The Disconnect Between Public And Private Law, Richard A. Epstein
Touro Law Review
No abstract provided.
Still An Issue: The Taking Issue At 40, Patricia E. Salkin
Still An Issue: The Taking Issue At 40, Patricia E. Salkin
Touro Law Review
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 …
A Congressional Call To Arms: The Time Has Come For Congress To Enforce The Fifth Amendment's Takings Clause, Mark W. Smith
A Congressional Call To Arms: The Time Has Come For Congress To Enforce The Fifth Amendment's Takings Clause, Mark W. Smith
Oklahoma Law Review
No abstract provided.
Regulatory Taking Doctrine In Washington: Now You See It, Now You Don't, Richard L. Settle
Regulatory Taking Doctrine In Washington: Now You See It, Now You Don't, Richard L. Settle
Seattle University Law Review
Within a recent two-month period, the Washington Supreme Court issued decisions in two major regulatory taking cases, Orion Corporation v. State, and Allingham v. City of Seattle. In both cases, land use regulations were challenged on the basis of the taking clauses of the federal and state constitutions. This Article analyzes and critically assesses Orion's ambitious doctrinal initiative in light of the Allingham enigma and charts a tentative course toward more coherent regulatory taking doctrine. A pervasive and hopeful theme of the Article is that a latent, largely unarticulated or misstated doctrine exists, just waiting for explicit judicial …
Zoning Law In Arkansas: A Comparative Analysis, Robert R. Wright
Zoning Law In Arkansas: A Comparative Analysis, Robert R. Wright
University of Arkansas at Little Rock Law Review
No abstract provided.
Eminent Domain Date Of Valuation In Ohio, John Lombardo
Eminent Domain Date Of Valuation In Ohio, John Lombardo
Cleveland State Law Review
This article is devoted to analyzing the interpretations and applications that Ohio courts have given to the mandate of "just compensation." Particular emphasis will be given to the date of valuation of this "just compensation," and the relevance of a change in market value of the property to be taken due to activity or delay of the appropriating authority in the area of the taking prior to the date of taking.