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 …

Under The River And Through The Common Law: Analyzing The Impacts And Propensity Of State Adoption Of The Ppl Montana Navigability-For-Title Standard, Jessica Kraus

William & Mary Environmental Law and Policy Review

No abstract provided.

U.S. Property Law: A Revised View, Kamaile A.N. Turčan

William & Mary Environmental Law and Policy Review

No abstract provided.

A Strange Land And A Peculiar Problem: Using Local Knowledge To Resolve Ambiguous Property Descriptions In Appalachia, William L. Spotswood

William & Mary Law Review Online

Conveying property in Appalachia can be somewhat like a box of chocolates: “You never know what you’re gonna get.” Carved by ancient rivers and winding streams, the seemingly never-ending “hollers” and hills of Appalachia can disorient even the best navigator. Couple the region’s rugged topography with an already ambiguous demarcation system, and properties once mapped by metes and bounds descriptions become impossible to re-create with any sort of certainty. Thus, though rooted in a desire for clarity, the combination of mountainous terrain and imperfect demarcation results in a property system riddled with ambiguity. Due to this inherent definitional problem in …

The Importance Of Viewing Property As A System, Lynda L. Butler

Faculty Publications

Can--or should--the American property system adapt to curb the excesses inherent in the dominant form of capitalism? Those extolling the virtues of privatization of resources would likely answer in the negative. Such a response would ignore the core functions and infrastructure of the American institution of property. This Article discusses the structure of property that enables property law to evolve over time, reacting to changing conditions, recognizing informal customs and usages, and otherwise taking into account important feedbacks. It explains how property provides an ordering system of concepts and principles that define and govern relations between a society and its …

Third-Party Interests And The Property Law Misfit In Patent Law, Sarah Rajec

Faculty Publications

Courts and scholars have long parsed the characteristics of patent grants and likened them, alternately, to real or personal property law, monopolies, public franchises and other regulatory grants, or a hybrid of these. The characterizations matter, because they can determine how patents are treated for the purposes of administrative review, limitations, and remedies, inter alia. And these varied treatments in turn affect incentives to innovate. Patents are often likened to real property in an effort to maximize rights and allow inventors to internalize all of the benefits from their activities. And courts often turn first to real property analogies when …

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, …

Brigham-Kanner Property Rights Journal, Volume 8, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Federalism Dimension of Constitutional Property

October 4-5, 2018

Panel 1: The Federalism Dimension of Constitutional Property: A Tribute to Sterk

Panel 2: Background Principles of Common Law and Constitutional Property

Lunch Roundtable: Other Emerging Issues in Constitutional Protection of Property

Panel 4: The Constitutionality of Land Use Exactions

Contributing Author (Reveley)

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.

Brigham-Kanner Property Rights Conference Journal, Volume 7, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Future of Regulatory Takings

October 12-13, 2017

Panel 1: The Future of Land Use Regulation: A Tribute to Callies

Panel 3: Property Rights in Water

Panel 4: The Denominator Problem and Other Emerging Issues in the Regulatory Takings Field

Hohfeld And Property, Michael S. Green

Popular Media

No abstract provided.

The Schofield/Gunner Decisions And Episcopal Church Property-Splitting Litigation: Considering Proposed Improvements To The Litigation Process And The Neutral Principles Of Law Doctrine, Ten Years On, Timothy D. Watson

William & Mary Business Law Review

In recent years, the Episcopal Church in the United States has seen a spate of parishes leaving the Church. Many of these departing parishes have attempted to take property with them as they leave and continue to operate independently or realign themselves with a different denomination. The Episcopal Church maintains that this property is held by the parishes on behalf of the national Church, and has generally been successful in obtaining a return of the property through legal action. In deciding these suits, state courts have skirted carefully around the contours of ecclesiastical questions; many state courts, following the Supreme …

The Natural Property Rights Straitjacket: The Takings Clause, Taxation, And Excessive Rigidity, Eric Kades

Faculty Publications

Natural property rights theories have become the primary lens through which conservative jurists and scholars view the Constitution’s main property rights provision, the Takings Clause. One of their most striking arguments is that progressive income taxation — applying higher tax rates to higher incomes — is an unconstitutional taking of wealthy taxpayers’ property. This has become part and parcel of well-established battle lines between conservative property rights advocates and their liberal counterparts. What has gone unnoticed is that the very same argument deployed against progressive taxation also deems regressive taxation — applying lower tax rates to higher incomes — an …

Brigham-Kanner Property Rights Conference Journal, Volume 6, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Role of Property in Secure Societies

October 19-21, 2016

Panel 1: Land Titling, Inclusion, and the Role of Property Rights in Secure Socities

Panel 3: Property's Role in the Fundamental Political Structure of Nations

Panel 5: Eminent Domain and Expropriations as Wealth Redistribution Tools

Panel 6: Defining and Protecting Property Rights in Intangible Assets

Panel 7: Rising Seas and Private Property: Advocates and Academics Debate Format

Panel 8: Property Rights as Defined and Protected by International Courts

Property As A Management Institution, Lynda L. Butler

Faculty Publications

No abstract provided.

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 …

Real Bite: Legal Realism And Meaningful Rational Basis In Dog Law And Beyond, Ann L. Schiavone

William & Mary Bill of Rights Journal

No abstract provided.

Wake Effects, Wind Rights, And Wind Turbines: Why Science, Constitutional Rights, And Public Policy Issues Play A Crucial Role, Kimberly E. Diamond

William & Mary Environmental Law and Policy Review

Developers of onshore, utility-scale wind farms seek to purchase or lease parcels on which commercial wind turbines will be sited, carefully selecting each particular parcel based on its access to high wind speeds and unobstructed wind flowing across it in the free stream. Accordingly, a wind farm developer’s purchase or lease of a tract of land generally entails a large monetary investment and carries with it an investment-backed expectation that such land will be used for its originally intended purpose. Wind wakes, which disrupt the wind velocity in the free stream, cause downwind turbines to encounter diminished wind speeds and …

Brigham-Kanner Property Rights Conference Journal, Volume 5, William & Mary Law School

Brigham-Kanner Property Rights Journal

Property as a Form of Governance

October 1-2, 2015

Panel 1: Property as a Form of Governance

Panel 3: Of Pipelines, Drilling, & the Use of Eminent Domain

Panel 4: Property Rights in the Digital Age

Brigham-Kanner Property Rights Conference Journal, Volume 4, William & Mary Law School

Brigham-Kanner Property Rights Journal

Defining the Reach of Property

October 30-31, 2014

Panel 1: The Role of the Advocate in Defining Property

Panel 3: Balancing Private Property and Community Rights

Panel 4: Property Rights in Developing and Transitional Countries

Panel 3 Q&A: Discussion on Balancing Private Property and Community Rights

Land Use And Climate Change Bubbles: Resilience, Retreat, And Due Diligence, John R. Nolon

William & Mary Environmental Law and Policy Review

This Article examines events on the ground in several localities where climate change is lowering property values and analyzes how those changes in value can be reckoned with by regulators. It merges practices and principles of real estate transactions and finance with those of land use and environmental regulation.

Climate change is a planetary phenomenon whose environmental implications are far-reaching. Reports on climate change consequences increasingly focus on what is happening locally and presently, while speculation continues about long-term global consequences. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, …

Brigham-Kanner Property Rights Conference Journal, Volume 3, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Essence of Property

October 17-18, 2013

Panel 1: The Impact of a Leading Property Scholar: Defining the Essence of Property

Panel 2: Promoting Government Forbearance

Roundtable Panel: Implications of the Court's Recent Takings Cases

Panel 4: Property Rights in Times of Transition

Conflicting Property Rights Between Conservation Easements And Oil And Gas Leases In Ohio: Why Current Law Could Benefit Conservation Efforts, Nicholas R. House

William & Mary Law Review

First, this Note will establish why conservation easements and oil and gas leases are likely to conflict. Second, this Note will present two scenarios under which conservation easements and oil and gas leases might conflict and then demonstrate how current law sorts out the conflicting rights. Third, it will advance several arguments for how conservation easements should be adapted, identifying specific provisions that should be altered in light of the Internal Revenue Code and Ohio’s current legal structure. By doing so, this Note will elucidate how the oil and gas boom in Ohio offers conservation organizations a unique opportunity to …

Brigham-Kanner Property Rights Conference Journal, Volume 2, William & Mary Law School

Brigham-Kanner Property Rights Journal

Interdisciplinary Perspectives on Property

October 11-12, 2012

Panel 1: The Impact of a Leading Property Scholar

Panel 3: Property Rights in Times of Economic Crisis

Panel 4: Property's Moral Dimension

Property's Constitution, James Y. Stern

Faculty Publications

Long-standing disagreements over the definition of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses establish individual rights that can be asserted only if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do …

Cities, Property, And Positive Externalities, Gideon Parchomovsky, Peter Siegelman

William & Mary Law Review

Cities are the locales of numerous interactions that generate externalities—both negative and positive. Although the common law provides a vast array of mechanisms for limiting negative externalities, there is a striking absence of provisions for stimulating the production of positive ones. As a consequence, activities whose social benefits are greater than their private costs are not undertaken, with a resulting efficiency loss.

In this Article, we demonstrate how cities can develop commercial districts that allow for the capture of positive externalities by following the example of suburban malls. In malls, anchor stores provide positive externalities—additional customers—to neighboring stores. Anchors capture …

Informal Institutions And Property Rights, Lan Cao

Faculty Publications

No abstract provided.

Brigham-Kanner Property Rights Conference Journal, Volume 1, William & Mary Law School

Brigham-Kanner Property Rights Journal

Comparative Property Rights

October 14-15, 2011

Panel 1: Legal Protection of Property Rights: A Comparative Look

Panel 2: Reflections on Justice O'Connor's Important Property Rights Decisions

Panel 3: Property as an Instrument of Social Policy

Panel 4: Culture and Property

Panel 5: Property as an Economic Institution

Panel 6: Property Rights and the Environment