Law Commons^™

Sidewalk Government, Michael C. Pollack

Michigan Law Review

This Article is about one of the most used, least studied spaces in the country: the sidewalk.

It is easy to think of sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of underappreciated conflict. The centrality of sidewalks in …

What’S Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris

University of Miami Law Review

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so.

In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head …

Shooting In The Park: Distinguishing Public From Private Property Under Georgia’S Firearms Carrying Laws, Mackenzie Miller

Law Review Blog Posts

Georgia’s recent expansion of concealed carry creates safety problems for public events within the state’s parks. Exploring Georgia’s gun laws, this Article examines possible loopholes and addresses growing concerns.

The U.S. Government Taking Under Eminent Domain: When Just Compensation Is Unjust (Comment), Michael Perez

The Scholar: St. Mary's Law Review on Race and Social Justice

The true effects of private takings do not occur in a vacuum and are not solely academic in nature. The consequence of losing property implicates loss of income, loss of value in residual property, and loss of familial land. The importance of protecting the rights of individual land-owners becomes increasingly apparent when analyzing the effect of the taking.

This comment will explore how the government’s taking of private property occurs—including how the government has loosened restrictions and procedural hurdles. The analysis will focus specifically on processes, policies, and statutes, created and used by the federal government to facilitate takings necessary …

Superfluous Judicial Activism: The Takings Gloss, Michael Allan Wolf

UF Law Faculty Publications

In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the “too far” test introduced by Justice Holmes in Pennsylvania Coal. The “Takings Gloss” is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, …

How Far Does Natural Law Protect Private Property, James W. Ely Jr.

Vanderbilt Law School Faculty Publications

This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century. The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical …

Property, Bas Van Der Vossen

Philosophy Faculty Books and Book Chapters

"This chapter discusses the nature and value of property rights. It will explain (1) what property rights are, (2) the relationship between private property and economic development, and (3) some objections to structuring societies around such rights. This discussion throughout focuses on the decentralizing nature of private property rights, asking what implications it has from a philosophical, but also social and political, point of view."

Theft, Extortion, And The Constitution: Land Use Practice Needs An Ethical Infusion, Michael M. Berger

Touro Law Review

There are many ways in which property owners/developers interact with regulators. To the extent that texts and articles deal with the ethical duties of the regulators, they tend to focus on things like conflicts of interest. But there is more. This article will examine numerous other ways in which regulators may run afoul of ethical practice in dealing with those whom they regulate

Scotus In The Strait Of Messina: Steering The Course Between Private Rights And Public Powers, Donald J. Smythe

Faculty Scholarship

The greatest challenge for any civilized society is to find the appropriate balance of rights and responsibilities between the individual and society. In the United States, the Supreme Court is the ultimate arbiter of the line between individual rights and governmental powers. The prerogatives and protections for private property rights help to define that line. The Supreme Court has developed two distinct bodies of constitutional jurisprudence bearing on the protections for private property, one under the doctrine of substantive due process and the other under the Takings Clause. But the appropriate balance has been difficult to achieve, and the Supreme …

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 …

The Eagle Theory, Thomas W. Merrill

Faculty Scholarship

This Article evaluates three interpretations of the Takings Clause capable of generating a regulatory takings doctrine. The first, the Epstein interpretation, puts primary emphasis on what it means to provide “just compensation” for takings; the second, the Penn Central interpretation, centers on what it means to “take” property; the third, which I call the Eagle theory, in honor of Steven Eagle, this year’s Brigham-Kanner prize recipient, focuses on when the government has taken “private property.” The Article argues that the Eagle theory has the most plausible basis in the original understanding of the Takings Clause, rests on a theory about …

Reconsidering The Strength Of The Boundary Line, Sarah Schindler

Sturm College of Law: Faculty Scholarship

I was thrilled when I discovered Property’s Edges, a recent article by David Dana and Nadav Shoked, who are both at Northwestern University School of Law. Their article sets up an extremely helpful framework to think about boundaries, borders, and the liminal spaces in between purely public and purely private. Specifically, Dana and Shoked suggest that property law distinguishes the borders of an asset from its center. Thus, we have (or should have) weaker rights of ownership in the edges of an asset, which are close to its boundary with private property, than we do at its core.

Reconciling Police Power Prerogatives, Public Trust Interests, And Private Property Rights Along Laurentian Great Lakes Shores, Richard K. Norton, Nancy H. Welsh

Michigan Journal of Environmental & Administrative Law

The United States has a north coast along its ‘inland seas’—the Laurentian Great Lakes. The country enjoys more than 4,500 miles of Great Lakes coastal shoreline, almost as much as its ocean coastal shorelines combined, excluding Alaska. The Great Lakes states are experiencing continued shorefront development and redevelopment, and there are growing calls to better manage shorelands for enhanced resiliency in the face of global climate change. The problem is that the most pleasant, fragile, and dangerous places are in high demand among coastal property owners, such that coastal development often yields the most tenacious of conflicts between public interests …

Maralex Resources, Inc. V. Barnhardt, Bradley E. Tinker

Public Land & Resources Law Review

In Maralex Resources v. Barnhardt, Maralex and property owners brought an action to protect private property from BLM inspections of oil and gas lease sites. The Tenth Circuit looked at the plain meaning of a congressional statute and held in favor of Maralex, finding that BLM lacked authority to require a private landowner to provide BLM with a key to inspect wells of their property. The Tenth Circuit held BLM has the authority to conduct inspections without prior notice on private property lease sites; however, it is required to contact the property owner for permission before entering the property.

Endangering Missouri’S Captive Cervid Industry, Lauren Hunter

Missouri Law Review

This Note seeks to explore the validity of regulations proposed by the Commission to prevent the spread of chronic wasting disease (“CWD”) – a fatal neurodegenerative disease – in cervids, such as white-tailed deer. Part II discusses the facts and circumstances surrounding the Missouri Supreme Court’s decision in Hill v. Missouri Department of Conservation. Part III dissects the delicate balance between private property interests and government interests, the scope of the Commission’s regulatory authority, as well as the driving forces behind the “right-to-farm” amendment to the Missouri Constitution. Part IV unpacks the court’s reasoning in Hill before concluding with a …

A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr

Glynn Lunney

To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article traces …

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Articles

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to "public" monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an …

Murr And Wisconsin: The Badger State's Take On Regulatory Takings

Marquette Law Review

None.

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 …

Property And Sovereignty, Information And Audience, Thomas W. Merrill

Faculty Scholarship

Morris Cohen’s classic essay, Property and Sovereignty, correctly discerned that political sovereignty and private property are alternative forms of government. Where it failed was in suggesting that the choice between these modes of governance is a matter of dialing one up and the other down. The relationship between political sovereignty and property is complex, and varies depending on the audience of property we have in view. With respect to some audiences – strangers and transactors – those who favor a strong system of property will want to enlist a generous measure of assistance from the political sovereign. With respect to …

Proactive Natural Disaster Recovery And Resilience In The Northeast: Should Governments Exercise Buyout Programs And, If Necessary, Eminent Domain, To Prevent Disaster?, Stellina Napolitano

Pace Environmental Law Review

In light of the devastation left behind by the three most recent natural disasters in the northeast region—Hurricane Irene, Tropical Storm Lee, and Superstorm Sandy—local and state governments are now implementing “buyout programs” in order to protect the future of beachfront and flood-prone communities. These programs may not be a perfect solution, so, while positions differ on whether to pursue taking private properties by use of eminent domain, it may be a favorable option in order to attain the ultimate goal of safety and resilience against future disaster. Section II of this paper will analyze the background and impacts that …

Paddling In Mr. Potter's Backyard: Navigating New York's Navigable-In-Fact Doctrine, Matthew Ingber

Touro Law Review

No abstract provided.

Liberty At The Borders Of Private Law, Donald J. Smythe

Akron Law Review

Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore, a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This Article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary …

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.

Introduction: Toward Voice And Reflexivity, Olivier De Schutter, Katharina Pistor

Faculty Scholarship

In their introductory chapter, De Schutter and Pistor argue that in light of increasing absolute and relative scarcity of land and fresh water there is urgent need to improve the governance of these and other essential resources. Emphasizing “essentiality” shifts the debate from allocative efficiency to normative concerns of equity and dignity. Essential resources are indispensable for survival and/or for meaningful participation in a given community. Their allocation therefore cannot be left to the pricing mechanism alone. It requires new parameters for governance. The authors propose Voice and Reflexivity as the key parameters of such a regime. Voice is …

The Property Rights Revolution That Failed: Eminent Domain In The 2004 Supreme Court Term, David Schultz

Touro Law Review

No abstract provided.

Takings Cases In The October 2004 Term, Leon D. Lazer

Touro Law Review

No abstract provided.

Still An Issue: The Taking Issue At 40, Patricia E. Salkin

Patricia E. Salkin

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 …

The Durability Of Private Claims To Public Property, Bruce R. Huber

Bruce R Huber

Property rights and resource use are closely related. Scholarly inquiry about their relation, however, tends to emphasize private property arrangements while ignoring public property — property formally owned by government. The well-known tragedies of the commons and anticommons, for example, are generally analyzed with reference to the optimal form and degree of private ownership. But what about property owned by the state? The federal government alone owns nearly one-third of the land area of the United States. One could well ask: is there a tragedy associated with public property, too? If there is, here is what it might look like: …

The Common Law Foundations Of The Takings Clause: The Disconnect Between Public And Private Law, Richard A. Epstein

Touro Law Review

No abstract provided.