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Selected Works

2007

Property-Personal and Real

Articles 31 - 33 of 33

Full-Text Articles in Law

Countryside Access And Environmental Protection: An American View Of Britain's Right To Roam, Jerry L. Anderson Jan 2007

Countryside Access And Environmental Protection: An American View Of Britain's Right To Roam, Jerry L. Anderson

Jerry L. Anderson

In 2000, Britain enacted a broad "right to roam," which opened up millions of acres of private land to public access. Britain’s resurrection of the right to roam should cause other countries, such as the United States, to reconsider the values that support greater public access to the countryside. Given differences in our history, land ownership, and culture, not to mention our legal system, the United States is unlikely to emulate the CRWA. But the idea that the freedom to roam has trumped the right to exclude in Britain may encourage Americans to accommodate the public’s need for access in …

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Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster Dec 2006

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

Mark Fenster

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual’s property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation’s validity and the means by which the regulation attempts to meet the government’s objective. Lingle’s explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), …

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The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster Dec 2006

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

Mark Fenster

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

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