Law Commons^™

Parks And Separation: How The Mississippi Legislature Decided Just Compensation In Bay Point Properties, Inc. V. Mississippi Transportation Commission, Kyle Usner

Mississippi College Law Review

At first glance, Bay Point comes across as the standard, run-of-the-mill eminent domain case: the government contracts with a citizen for an express easement over privately-owned land limited to a certain use; the government then exceeds the scope of that easement, resulting in a taking. Governmental taking is usually not anything outside of the norm. But with a potential seven billion dollars' worth of federally funded highway projects destined for Mississippi highway only a Presidential signature away from being approved, this decision is not one Mississippi landowners should ignore. Further, the crux of Bay Point lies with an issue of …

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay

Indiana Law Journal

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …

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 …

The Wolf In Sheep's Clothing: How Historical And Blight Designations In The Absence Of Constitutional Safeguards Can Render Property Rights Illusory, Kyle B. Teal, Dane L. Stuhlsatz

St. Thomas Law Review

This article summarily analyzes those more subtle forms of property rights infringement, including historical designations and blight designations, and it critiques laws in place that purport to grant local government the authority to assert such designations. This article also provides a summary of the causes of action owners aggrieved by unjust designations could bring in response, and critiques the flaws in those elective safeguards, which are prevalent even in property rights friendly jurisdictions such as Florida. It then proposes high-level solutions to enact legislation to limit fee exposure for property owners who bring inverse condemnation actions and Bert J. Harris …

Mitola V. Providence Public Buildings Authority, 273 A.3d 618 (R.I. 2022), Andrew Blackstone Colton

Roger Williams University Law Review

No abstract provided.

Property Law For The Ages, Michael C. Pollack, Lior Jacob Strahilevitz

William & Mary Law Review

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

The Dawn Of A Judicial Takings Doctrine: Stop The Beach Renourishment, Inc. V. Florida Department Of Environmental Protection, Brendan Mackesey

University of Miami Law Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), the U.S. Supreme Court granted certiorari to determine whether the Florida Supreme Court had violated a group of littoral property owners’ Fifth Amendment rights—or committed a “judicial taking”—by upholding the state of Florida’s Beach and Shore Preservation Act. Under the Act, the State is entitled to ownership of previously submerged land it restores as beach; this is true even though the normal private/state property line, the mean-high water line, is moved seaward, and the affected littoral owner(s) lose their right to have their property …

Whose Highest And Best? Including Economic Development And Individual Landownership In The Highest And Best Use Standard, Brigid Sawyer

Catholic University Law Review

Real property is a finite resource. As a result, two theories of land use most frequently in tension are economic development and individual land ownership. In tracing key places in American history where these two theories conflict, it is seen that economic development is often prioritized over individual land ownership. This Comment analyzes the connections between the Founding Era philosophy on property law, Native American land takings, and eminent domain takings and proposes a new definition of the highest and best use valuation standard, one that accounts for both economic development and individual land ownership. This new standard allows both …

Property Convergence In Takings Law, Maureen E. Brady

Pepperdine Law Review

Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations—for example, environmental regulations—certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property’s use and enjoyment. This feature of property …

Second Amendment Background Principles And Heller's Sensitive Places, Adam B. Sopko

William & Mary Bill of Rights Journal

Judges and commentators have widely acknowledge that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide "sensitive places" cases-- challenges to location-based gun laws-- in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that uses history and tradition in a principled way. This Article proposes a solution to address that problem.

An untapped source of guidance is the Court's takings jurisprudence. Interpreting their respective constitutional provisions, Justice Scalia observed …

Property Owners Look Out: The Train Is Coming, Natalie Crane

Seattle University Law Review

Over 4 million people currently live in the Puget Sound area in Washington state, and about 6 million people are expected to reside in the area by 2050. Additionally, Seattle renters faced a 71.2% increase in rent prices from 2010 to 2019. This data supports the need for much of the congested Seattle population to move outward and commute into the city for work. The implementation of a 116-mile system and other efforts to increase public transportation makes this need achievable and affordable.

This Comment focuses on the issue of just compensation in eminent domain; specifically, unique questions of compensation …

Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten

Ocean and Coastal Law Journal

In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …

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 …

U.S. Supreme Court Surveys: 2016 Term. Murr. V. Wisconsin: Identifying The Proper "Parcel As A Whole" In Regulatory Takings Cases, Bruce I. Kogan

Roger Williams University Law Review

No abstract provided.

Kelo V. City Of New London-Wrongly Decided And A Missed Opportunity For Principled Line Drawing With Respect To Eminent Domain Takings, Orlando E. Delogu

Maine Law Review

No eminent domain taking case in the last twenty-five years has excited the level of interest, attention, and debate as has Kelo v. City of New London. The Supreme Court’s decision has not quelled that debate. If anything the stridency, the emotional tenor, of the debate has increased. And in the few months since the decision came down, several dozen states (in the absence of any meaningful federal limitation on what constitutes “public use”) have proposed statutes or constitutional amendments that would limit their exercise of eminent domain (taking) powers. There is even talk of federal legislation to temper, to …

Public Stand-Off: The Wisconsin State Legislature V. Milwaukee Public Schools And Takings Of Public Property By Public Entities, Corey R. Hoze

Mitchell Hamline Law Review

No abstract provided.

Pipe(Line) Dreams Post-Denbury Green., Nicholas Laurent, Christopher Oddo

St. Mary's Law Journal

In Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, the Beaumont Court of Appeals articulated the test that should be applied when considering whether the condemnation of private property, which would result favorably for pipeline companies, should be allowed. In Denbury, the Beaumont Court of Appeals balanced the protection of private property rights against the need for true common carrier pipeline companies to condemn private property. The court held that in order to condemn private property, a substantial public interest must exist to justify such condemnation. The Texas Supreme Court, however, reversed the decision of the Beaumont Court of …

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 …

Condemning Clothes: The Constitutionality Of Taking Trademarks In The Professional Sports Franchise Context, Mitchell Diles

Washington and Lee Law Review Online

The resurgence in franchise free agency in the National Football League (NFL) potentially implicates the loss of a significant source of local identity and tradition for multiple cities. In January 2016, NFL owners approved the relocation of the Rams franchise from St. Louis, Missouri, to Los Angeles, California, by a vote of thirty-to-two. The owners’ vote also potentially implicates the relocation of the San Diego Chargers and the Oakland Raiders. Though applauded by numerous sports commentators, athletes, and fans, the vote reflects the failure of negotiations between the City of St. Louis and the Rams organization. The approval also sets …

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

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 …

The Use Of Eminent Domain For Economic Development In Baltimore, Maryland: Ten Years After Kelo, Elva E. Tillman

Maryland 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 …

Preventing Franchise Flight: Could Cleveland Have Kept The Browns By Exercising Its Eminent Domain Power?, Steven R. Hobson Ii

Akron Law Review

The purpose of this Comment is to analyze whether Ohio law would allow for such a taking, and to determine if such action would have solved the problem of keeping the Browns in Cleveland. In analyzing this issue and focusing on the difficulties that such a taking would create, it will be demonstrated that this taking probably cannot be achieved successfully, and that some congressional intervention is needed to rectify the franchise relocation problem.

Scalia, Property, And Dolan V. Tigard: The Emergence Of A Post-Carolene Products Jurisprudence, David Schultz

Akron Law Review

This Article proposes an analysis of Scalia's views on property rights and shows how the Justice has been important to, if not the leader in, the current rethinking of takings and land use jurisprudence." Also, this Article will engage in a more comprehensive reevaluation of the jurisprudence of the Carolene Products Era that is transpiring both off and on the Court. While previous works have examined Rehnquist's and his Court's views on property, as well as Scalia's views on expressive freedoms criminal due process, and church/state issues, there is no comprehensive discussion addressing Scalia's views on property rights. To accomplish …

Specific Relief For Ancient Deprivations Of Property, Shelby D. Green

Akron Law Review

I consider in this paper the extent to which courts rationally and on a principled basis can deny to aboriginal claimants, despite the ancientness of their claims, the specific relief of being restored to possession of their aboriginal lands where the case for such specific relief is otherwise made. The paper begins with a brief discussion of the foundations of property in the Western conception, then goes on to discuss the Europeans’ asserted title to indigenous lands and the various theories of aboriginal title that have emerged. It then explores the past and existing legal obstacles to the judicial resolution …

Picking Up The Remnants Post-Waller: Properly Limiting The Scope Of Uneconomic Remnant Claims In Wisconsin Eminent Domain Proceedings, Samuel A. Magnuson

Marquette Law Review

Statutory interpretation often requires a court to review the legislative intent behind the statute. However, this task is not always easily undertaken when the intent of the legislature is itself unclear. A recent Wisconsin Supreme Court case illustrates the difficulty in properly interpreting arguably ambiguous statutory language. Nevertheless, this Comment hopes to demonstrate that by examining the history of remnant theory, it should be clear that uneconomic remnant claims in eminent domain proceedings were intended to be limited to situations where the partial taking creates either a physical remnant or a financial remnant. Furthermore, this Comment argues that the Wisconsin …

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 …

Necessary Change: Re-Calculating Just Compensation For Environmental Benefits, Scott Salmon

Washington and Lee Journal of Energy, Climate, and the Environment

This Note is about the recent New Jersey Supreme Court case, Borough of Harvey Cedars v. Karan, and how other courts should adopt its holding of allowing all reasonably certain and calculable benefits to be considered in determining partial takings just compensation. Furthermore, it addresses the impact that the decision will have on environmental takings and its importance to the future of both property and environmental law.

Condemning A Residential Mortgage Loan: Is It An Extraterritorial Taking?, Michael M. Sandez

American University Business Law Review

No abstract provided.