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Articles 1 - 8 of 8
Full-Text Articles in Law
Maintaining Government Accountability: Calls For A "Public Use" Beyond Eminent Domain, Gregory S. Knapp
Maintaining Government Accountability: Calls For A "Public Use" Beyond Eminent Domain, Gregory S. Knapp
Indiana Law Journal
No abstract provided.
Of All Things Made In America Why Are We Exporting The Penn Central Test?, Anthony B. Sanders
Of All Things Made In America Why Are We Exporting The Penn Central Test?, Anthony B. Sanders
Anthony B Sanders
Developing countries enter into bilateral investment treaties (BITs) in order to increase foreign direct investment (FDI). Ignoring this straight forward fact has lead to a great deal of confusion in the assessment of BITs and their protection of regulatory takings. This Article addresses the question of how a BIT should approach regulatory takings with the purpose of increasing FDI in mind. It explores the background of the United States Supreme Court’s Penn Central test and the test’s incorporation into the post-NAFTA round of U.S. BITs. Then, the Article examines whether an uncertain and flexible test such as Penn Central is …
A Whole New Ballgame: Coastal Restoration, Storm Protection, And The Legal Landscape After Katrina, Mark Davis
A Whole New Ballgame: Coastal Restoration, Storm Protection, And The Legal Landscape After Katrina, Mark Davis
Louisiana Law Review
No abstract provided.
The Politics Of Economic Development Takings, Ilya Somin
The Politics Of Economic Development Takings, Ilya Somin
Case Western Reserve Law Review
No abstract provided.
Money Or Nothing: The Adverse Environmental Consequences Of Uncompensated Law Use Controls, Jonathan H. Adler
Money Or Nothing: The Adverse Environmental Consequences Of Uncompensated Law Use Controls, Jonathan H. Adler
Faculty Publications
The conventional wisdom holds that requiring compensation for environmental land-use controls would severely limit environmental protection efforts. There are increasing reasons to question this assumption. Both economic theory and recent empirical research demonstrate that failing to compensate private landowners for the costs of environmental regulations discourages voluntary conservation efforts and can encourage the destruction of environmental resources. The lack of a compensation requirement also means that land-use regulation is underpriced as compared to other environmental protection measures for which government agencies must pay. This results in the "overconsumption" of land-use regulations relative to other environmental protection measures that could be …
Problem Of Equality In Takings, The , Nestor M. Davidson
Problem Of Equality In Takings, The , Nestor M. Davidson
Faculty Scholarship
The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest …
"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett
"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett
Journal Articles
This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided …
Construing The Canon: An Exegesis Of Regulatory Takings Jurisprudence After Lingle V. Chevron, Michael B. Kent Jr.
Construing The Canon: An Exegesis Of Regulatory Takings Jurisprudence After Lingle V. Chevron, Michael B. Kent Jr.
Michael B. Kent Jr.
Regulatory takings has long been considered one of the more confused areas of constitutional analysis. Since the Supreme Court's opinion in Penn Central Transportation Company v. City of New York, the law of regulatory takings has been characterized by varying analytical tests, competing theories, seemingly results-oriented decision-making, and a conflation with the law of substantive due process. In 2005, however, the Court made substantial strides in bringing some clarity to this area with its decision in Lingle v. Chevron U.S.A., Inc. In that case, the Court unanimously rejected the substantially advances test, demonstrating a rare willingness to discard prior precedent …