Law Commons^™

A New Takings Clause? The Implications Of Cedar Point Nursery V. Hassid For Property Rights And Moratoria, Benjamin Alexander Mogren

William & Mary Bill of Rights Journal

In part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a …

Evaluating Emergency Takings: Flattening The Economic Curve, Robert H. Thomas

William & Mary Bill of Rights Journal

Desperate times may breed desperate measures, but when do desperate measures undertaken as a response to an emergency trigger the Fifth Amendment’s requirement that the government provides just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power”—a sovereign government’s power to regulate property’s use in order to further the public health, safety, and welfare—and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. After all, emergencies …

Property's Problem With Extremes, Lynda L. Butler

Faculty Publications

Western-style property systems are ill-equipped to deal with extremes--extreme poverty, extreme wealth, extreme environmental harm. Though they can effectively handle many problems, the current systems are inherently incapable of providing the types of reform needed to address extreme situations that are straining the fabric of societies--situations that are stressing the integrity of core societal and natural systems to the breaking point. The American property system, in particular, is problematic. The system has a long tradition of strong individual rights and relies primarily on the efficiency norm to operate and shape the incentives of rights holders. The economic model that now …

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …

Time For A Change In Eminent Domain: A “Dirt Farmer’S” Story Shows Why Just Compensation Should Include Lost Profits, Edward Walton

William & Mary Bill of Rights Journal

No abstract provided.

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

Reverse Exactions, Gregory M. Stein

William & Mary Bill of Rights Journal

When an owner applies for a permit to use property in a certain way, the government body with jurisdiction can either deny the permit, grant the permit outright, or grant the permit subject to conditions. These conditions—known as “exactions”—must meet two constitutional thresholds. First, there must be a close linkage between a problem the owner’s project will create or exacerbate, such as increased traffic caused by a proposed new shopping mall, and the exaction the government proposes, such as the dedication of land for a new right-turn lane. Second, the condition the government suggests must be proportional in magnitude to …

An Empirical Study Of Implicit Takings, James E. Krier, Stewart E. Sterk

William & Mary Law Review

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law “on the ground”—in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions over the period 1979 through 2012, attempts to fill that void.

This study establishes that the Supreme Court’s categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action other …

The Governance Function Of Constitutional Property, Lynda L. Butler

Faculty Publications

Contemporary takings scholarship has devoted much attention to the problem of regulatory takings and has largely assumed that physical takings are resolved under a clear but simplistic per se rule. Under that rule, modern courts automatically find a physical taking whenever government action causes a permanent physical invasion of property, regardless of the context or the importance of the public interest. Applying this bright-line rule has proved to be difficult because it ignores the nuances of physical takings situations and the complexities of modern property arrangements. Should the physical takings concept apply to a rent control law that limits the …

An Unintended Consequence Of Arkansas Game & Fish Commission V. United States: Expanding Takings Liability To What The Government Doesn’T Do, Jason Kane

William & Mary Environmental Law and Policy Review

No abstract provided.

Farming The Slums: Using Eminent Domain And Urban Agriculture To Rebuild Baltimore's Blighted Neighborhoods, Keith Buzby

William & Mary Environmental Law and Policy Review

No abstract provided.

The Role Of Causation When Determining The Proper Defendant In A Takings Lawsuit, Jan G. Laitos

William & Mary Bill of Rights Journal

No abstract provided.

"Property" In The Constitution: The View From The Third Amendment, Tom W. Bell

William & Mary Bill of Rights Journal

During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what the term “property” means in the United States Constitution. As a general legal matter, property includes not just real estate—land, fixtures attached thereto, and related rights—but also various kinds of personal property, ranging from tangibles, such as books, to intangibles, such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal …

Kelo, Conservation Easements, And Forever: Why Eminent Domain Is Not A Sufficient Check On Conservation Easements' Perpetual Duration, Derrick P. Fellows

William & Mary Environmental Law and Policy Review

No abstract provided.

An End-Run Around The Takings Clause? The Law And Economics Of Bivens Actions For Property Rights Violations, Arpan A. Sura

William & Mary Law Review

No abstract provided.

Charitable Deductions For Rail-Trail Conversions: Reconciling The Partial Interest Rule And The National Trails System Act, Scott Andrew Bowman, Danaya H. Rosenberg

William & Mary Environmental Law and Policy Review

This Article examines an undeveloped legal topic at the intersection of tax law and real property law: charitable deductions from income tax liability for donations of railroad corridors that are to be converted into recreational trails. The very popular rails-to-trails program assists in the conversion of abandoned railroad corridors into hiking and biking trails. However, the legal questions surrounding the property rights of these corridors have been complex and highly litigated. In 1983, Congress amended the National Trails System Act to provide a mechanism for facilitating these conversions, a process called railbanking. In essence, a railroad transfers its real property …

The Police Power And 'Public Use': Balancing The Public Interest Against Private Rights Through Principled Constitutional Distinctions, Christopher D. Supino

Student Award Winning Papers

No abstract provided.

Kelo's Moral Failure, Laura S. Underkuffler

William & Mary Bill of Rights Journal

Presented at the 2004 Brigham-Kanner Property Rights Conference.

Takings: An Appreciative Retrospective, Eric R. Claeys

William & Mary Bill of Rights Journal

Presented at the 2005 Brigham-Kanner Property Rights Conference.

The Demise Of Federal Takings Litigation, Stewart E. Sterk

William & Mary Law Review

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …

Time To Overturn Turney, Paul A. Lafata

William & Mary Bill of Rights Journal

No abstract provided.

Exactions And Burden Distribution In Takings Law, Carlos A. Ball, Laurie Reynolds

William & Mary Law Review

In the last several decades, there has been a marked shift in local government financing away from the use of general revenue taxes and toward nontax revenue-raising devices such as exactions. This Article argues that the Supreme Court, in its exaction cases, missed a golden opportunity to slow this troubling trend toward the greater privatization of local government financing. In addition, it explains how the Court's exaction cases are inconsistent with the goal of burden distribution as reflected in the Court's takings jurisprudence. The Article proposes that the constitutional standard applied to exactions be reformulated to account explicitly for burden …

"The Loss In My Bones": Protecting African American Heirs' Property With The Public Use Doctrine, April B. Chandler

William & Mary Bill of Rights Journal

No abstract provided.

Quieting The Clang: Hathcock As A Model Of The State-Based Protection Of Property Which Kelo Demands, Joshua E. Baker

William & Mary Bill of Rights Journal

No abstract provided.

Regulatory Takings And The Original Understanding Of The Takings Clause, Matthew P. Harrington

William & Mary Law Review

No abstract provided.

Foreword: Property Rights And Economic Development, Eric Kades

William & Mary Law Review

No abstract provided.

Everyone Benefits, Everyone Pays: Does The Fifth Amendment Mandate Compensation When Property Is Damaged During The Course Of Police Activities?, C. Wayne Owen Jr.

William & Mary Bill of Rights Journal

The Fifth Amendment of the United States Constitution, along with similar provisions in state constitutions, forbids the taking of private property by the government for a public use without just compensation. Despite this protection, many courts have denied takings claims made by innocent third party landowners when police officers caused damage to their property during the course of executing their official duties. These courts held that the damage was not for a "public use" in the narrow sense, and have refused to analyze the claims under takings jurisprudence. This narrow view of "public use" ignores the fact that society as …

The Morality Of Regulation, Loren A. Smith

William & Mary Environmental Law and Policy Review

No abstract provided.

Takings And Causation, Jan G. Laitos

William & Mary Bill of Rights Journal

Constitutional protection of private property is grounded in a conflict between two legal principles--the government's power to regulate private property for the common good and the Constitution's limit on this power in the Takings Clause. The Takings Clause's check on government power conforms to John Rawls's philosophy, which rejects the utilitarian beliefs that government may act to achieve* the "good" of maximizing human happiness and that government can force people to trade certain political liberties for an improved distribution of wealth. Under Rawls's theory, the principle of "justice as fairness" limits a government's ability to require some people to bear …

The Armstrong Principle, The Narratives Of Takings, And Compensation Statutes, William Michael Treanor

William & Mary Law Review

No abstract provided.