Law Commons^™

One Of The Safeguards Of The Constitution: The Direct Tax Clauses Revisted, James W. Ely Jr.

Vanderbilt Law School Faculty Publications

James Madison's insistence that the apportionment rule governing the imposition of direct taxes by Congress was a constitutional safeguard highlights a puzzle that has plagued constitutional law since the early days of the Republic. The Constitution does not bar Congress from imposing direct taxes, but twice provides that direct taxes "shall be apportioned among the several States which may be included within this Union, according to their respective Numbers." In times of crisis, notably during the War of 1812 and the Civil War, Congress levied direct taxes on real estate and slaves. It specified the aggregate amount to be collected …

Takings Federalization, Gerald S. Dickinson

Articles

Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …

A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf

UF Law Faculty Publications

Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases …

Energy And Eminent Domain, James W. Coleman, Alexandra B. Klass

Faculty Journal Articles and Book Chapters

This Article examines the growing opposition to the use of eminent domain for energy transport projects such as oil pipelines, gas pipelines, and electric transmission lines. Such projects were protected from the state legislative reforms that restricted eminent domain following the Supreme Court’s controversial decision in Kelo v. City of New London in 2005 but are now under increased scrutiny. This Article evaluates why U.S. energy transport projects have become so controversial and suggests how states and the federal government should evaluate the need for eminent domain for these projects and enact appropriate reforms. We first detail the significant changes …

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

Articles

Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …

Inclusionary Takings Legislation, Gerald S. Dickinson

Articles

This Article proposes an alternative post-Kelo legislative reform effort called “inclusionary takings.” Like inclusionary zoning legislation, inclusionary takings legislation would trigger remedial affordable housing action to mitigate the phenomenon of exclusionary condemnations in dense urban areas and declining suburban localities. An inclusionary takings statute would also mandate that local municipalities and private developers provide affordable housing in new developments benefiting from eminent domain takings. Such a statute may ameliorate the phenomenon of exclusionary condemnations in dense urban areas that displaces low-income families from urban neighborhoods. An inclusionary taking, like inclusionary zoning, in other words, requires affordable housing contributions from developers …

Seizing Family Homes From The Innocent: Can The Eighth Amendment Protect Minorities And The Poor From Excessive Punishment In Civil Forfeiture?, Louis S. Rulli

All Faculty Scholarship

Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind—property—and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.

The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under …

Passive Takings: State Inaction And The Duty To Protect Property, Christopher Serkin

Vanderbilt Law School Faculty Publications

As conventionally understood, regulatory takings doctrine protects property owners from the most significant costs of legal transitions. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be, and that governments can violate the Takings Clause by failing to act in the face of a changing world. This is much more than a minor refinement of takings law because government liability for failing to act means that, in at least some circumstances, the Takings Clause imposes an affirmative obligation on the government to protect property. This liability runs counter to …

Evictions, Aspiration And Avoidance, Brian E. Ray

Law Faculty Articles and Essays

In December 2011 four of the Constitutional Court’s five socio-economic rights cases turned on evictions.2 The Court decided three eviction-related cases in the 2012 term and two more in 2013.3 For a Court that averages fewer than 30 decisions per term 10 decisions in less than two and a half years is an extraordinary level of attention devoted to a single area of constitutional law.4 Does this sustained attention to eviction cases harbinger a significant development in the Court’s approach to the right to housing in FC s 26 and to socio-economic rights more generally? The cases provide some evidence …

Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong

Faculty Publications

This article fills a critical gap in the commentary by undertaking a rights-based analysis of the various issues that arise in cases involving large-scale international litigation, focusing in particular on the Brussels I Regulation and what may be called ‘individual participatory rights’. In so doing, the discussion considers the nature and scope of individual participatory rights in collective litigation as well the ways in which these rights should be weighed and considered. Although the analysis is set in the context of European procedural law, this discussion is of equal relevance to parties outside the European Union, either because they will …

Courts, Capacity And Engagement: Lessons From Hlophe V. City Of Johannesburg, Brian E. Ray

Law Faculty Articles and Essays

The case was one of the first applying the Constitutional Court’s holding in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another, (2) BCLR 150 (CC) (1 December 2011) (Blue Moonlight) that municipalities have an independent obligation to plan and budget for the emergency accommodation needs of people evicted from private property. The City also was the defendant in that case, and so its repeated failures to accommodate the occupants in Hlophe demonstrated a broader failure to implement the planning, budget and policy requirements that flowed from Blue Moonlight. Judge Satchwell recognised this and issued …

Cross-Border Collective Redress In The European Union: Constitutional Rights In The Face Of The Brussels I Regulation, S. I. Strong

Faculty Publications

This article considers the various issues associated with the creation of a system of collective relief in a region that has traditionally been hostile to the provision of large-scale private litigation. In so doing, the discussion focuses on the clash between certain constitutional rights relating to the ability of the plaintiff to choose the time, place and manner of bringing suit and the European Union’s primary form of legislation concerning cross-border procedure, Council Regulation 44/2001 on jurisdiction and on recognition and enforcement of civil and commercial judgments, commonly known as the Brussels I Regulation.

The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern

All Faculty Scholarship

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …

The Mismatch Between Public Nuisance Law And Global Warming, David A. Dana

Faculty Working Papers

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting …

Exclusionary Eminent Domain, David A. Dana

Faculty Working Papers

This Article explores the phenomenon of "exclusionary eminent domain" – the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality, whether or not exclusion itself was the purpose of the condemnation. All condemnations exclude the condemned owner (and his or her tenants, if any) from the condemned property. Exercises of what I am calling "exclusionary eminent domain" are doubly exclusive because the displaced residents are unable to afford new housing in the same neighborhood or locality as their now-condemned, former homes. In exclusionary eminent domain, …

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

19 pages.

"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Faculty Scholarship

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

Brief Of Lone Wolf, Principal Chief Of The Kiowas, To The Supreme Court Of The American Indian Nations, S. James Anaya

Publications

No abstract provided.

Hungarian Legal Reform For The Private Sector, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller

Faculty Scholarship

Hungary is in the midst of a fundamental transformation toward a market economy. Although Hungary has long been in the forefront of efforts to reform socialism itself, after 1989 the goals of reform moved from market socialism toward capitalism, as the old Communist regime lost power and the idea of widespread private ownership gained acceptance. The legal framework – the "rules of the game – is now being geared toward encouraging, protecting, and rewarding entrepreneurs in the private sector.

This Article describes the evolving legal framework in Hungary in several areas: constitutional, real property, intellectual property, company, foreign investment, contract, …

Bargaining In The Shadow Of Eminent Domain: Valuing And Apportioning Condemnation Awards Between Landlord And Tenant, Victor P. Goldberg, Thomas W. Merrill, Daniel Unumb

Faculty Scholarship

Who has a constitutionally protected "property" interest when the government condemns land subject to a lease? Is it the landlord? The tenant? Or do both parties have property rights that entitle them to compensation? Further, how should the size of the total condemnation award be determined? Should we value the property rights of the landlord and the tenant separately and sum? Or should we value the entire parcel as if it were an undivided fee simple and apportion the award between the landlord and the tenant? If the condemnation award is based on the value of a fee simple and …

Economic Analysis Of Liberty And Property: A Critique, Peter N. Simon

Publications

No abstract provided.

Reed V. Campbell, Individually And As Administrix Of The Estate Of Ricker, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Exclusionary Land Use Controls And The Takings Issue, Robert R. Wright

Faculty Scholarship

No abstract provided.

United States V. Sioux Nation Of Indians, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Constitutional Rights And Land Use Planning: The New And The Old Reality, Robert R. Wright

Faculty Scholarship

No abstract provided.