Law Commons^™

The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill

Faculty Scholarship

The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property?

The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis …

Property Transitions, Michael A. Heller

Faculty Scholarship

Time plays a key role in this book. The last two chapters discussed two reasons why time matters to the life of property: over time, owners effect voluntary changes to property in order to carry out their life plans and the state imposes involuntary changes (from the individual owner’s perspective) in response to changing circumstances, shifting needs and wants, and revised public goals. For the state to function – and to remain justified on liberal principles – the government must have this ability to adjust ownership. However, state-initiated transitions to ownership – implemented through governments’ police and takings powers – …

Property-As-Society, Timothy M. Mulvaney

Faculty Scholarship

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Faculty Scholarship

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

On Bargaining For Development, Timothy M. Mulvaney

Faculty Scholarship

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, …

Progressive Property Moving Forward, Timothy M. Mulvaney

Faculty Scholarship

In his thought-provoking recent article, “The Ambition and Transformative Potential of Progressive Property,” Ezra Rosser contends that, in the course of laying the foundations of a theory grounded in property’s social nature, scholars who participated in the renowned 2009 Cornell symposium on progressive property have “glossed over” property law’s continuing conquest of American Indian lands and the inheritance of privileges that stem from property-based discrimination against African Americans. I fully share Rosser’s concerns regarding past and continuing racialized acquisition and distribution, if not always his characterization of the select progressive works he critiques. Where I focus in this essay, though, …

Forced Sale Risk: Class, Race, And The "Double Discount", Thomas W. Mitchell, Stephen Malpezzi, Richard K. Green

Faculty Scholarship

What impact does a forced sale have upon a property owner's wealth? And do certain characteristics of a property owner such as whether they are rich or poor or whether they are black or white, tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale …

Land Assembly Districts, Michael A. Heller, Rick Hills

Faculty Scholarship

Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or "LADs." This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and …

Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher

Faculty Scholarship

In the summer of 2004, New Haven Mayor John DeStefano, Jr. announced plans to demolish the all-but-derelict New Haven Coliseum and replace it with a publicly financed redevelopment that would include a 300-room hotel. Critics of the plan immediately objected that the hotel-even if it were completed-was a poor public investment, that there was no demand for such a hotel, and that the money could be better spent elsewhere. Some critics pointed to New Haven's own checkered history of major development projects, especially the failed downtown mall and the famously catastrophic Oak Street redevelopment. As of February 2006, the city …

Six Myths About Kelo: Kelo V. City Of New London, Thomas W. Merrill

Faculty Scholarship

Kelo v. City of New London, 125 S. Ct. 2655 (2005), is unique in the modem annals of law in terms of the negative response it has evoked. The initial reaction by lawyers familiar with the case was one of lack of surprise. Within days, however, Internet bloggers, television commentators, and neighbors talking over backyard fences decided that Keio was an outrage. Even Justice Stevens sought to distance himself from his own majority opinion, declaring in a speech to a bar association that he thought the outcome was "unwise," and that he would not have supported it if he were …

The Misplaced Flight To Substance, Thomas W. Merrill

Faculty Scholarship

Courts and commentators have struggled for years to come up with a substantive test for what kinds of condemnations are for a "public use." Does public use mean government ownership and control of property after it is taken? This would preclude delegation of eminent domain to common carriers and utilities. Does public use mean public access to the property after it is taken? This would preclude using eminent domain to acquire facilities off-limits to the public, like prisons.

Faced with these problems of under-inclusion, courts have gravitated to the idea that public use means public purpose. The U.S. Supreme Court …

Property Law: 2001 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

2000 Survey Of Florida Law: Real Property, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

Survey Of Florida Law: Real Property, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Property Law: 1998 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

Property Law: 1995 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman, Manuel R. Valcarcel Iv

Faculty Scholarship

No abstract provided.

Property Law: 1994 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

Real Property: 1993 Survey Of Florida Law, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Real Property: 1992 Survey Of Florida Law, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Real Property Survey, Ronald B. Brown

Faculty Scholarship

No abstract provided.

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 …

Just Compensation For Lessor And Lessee, John D. Johnston Jr.

Faculty Scholarship

No abstract provided.

Recent Developments In Eminent Domain In Arkansas, Robert R. Wright

Faculty Scholarship

No abstract provided.