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Environmental Permits: Public Property Rights In Private Lands And The Extraction And Redistribution Of Private Wealth, Jason S. Johnston
Environmental Permits: Public Property Rights In Private Lands And The Extraction And Redistribution Of Private Wealth, Jason S. Johnston
Notre Dame Law Review
Back in 1995, Professor Epstein famously termed such use of the permit power a “racket,” and as observed very recently by Dave Owen, still today many landowners and conservative critics would agree with the Supreme Court’s description of the process (in Nollan v. California Coastal Commission) as an “out-and-out plan of extortion.” However extortionate such deals may be, regulators with permit power may require landowners to bargain with them before developing their land or else face legal sanctions. This Essay explores in more detail how such bargaining has played out under two of the most important permit regimes in …
The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill
The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill
Notre Dame Law Review
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 …
Dynamic Property Taxes And Racial Gentrification, Andrew T. Hayashi
Dynamic Property Taxes And Racial Gentrification, Andrew T. Hayashi
Notre Dame Law Review
Many jurisdictions determine real property taxes based on a combination of current market values and the recent history of market values, introducing a dynamic aspect to property taxes. By design, homes in rapidly appreciating neighborhoods enjoy lower tax rates than homes in other areas. Since growth in home prices is correlated with—and may be caused by—changing neighborhood demographics, dynamic property taxes will generally have racially disparate impacts. These impacts may explain why minority-owned homes tend to be taxed at higher rates. Moreover, the dynamic features of local property taxes may subsidize gentrification and racially discriminatory preferences.
Valuation Blunders In The Law Of Eminent Domain, Richard A. Epstein
Valuation Blunders In The Law Of Eminent Domain, Richard A. Epstein
Notre Dame Law Review
In dealing with the valuation problem, I will bracket these estimation issues in order to look to different and disturbing types of difficulties in the valuation enterprise. The law of eminent domain starts with the implicit assumption that the government is in general a good actor whose motives and laudable and whose behavior does not need excessive judicial oversight. Hence the general norm of judicial deference often applies to valuation decisions. In the cases that I shall review, as well as others, a general pattern emerges, whereby all doubtful valuation questions that arise dealing with key problems are at best …