Law Commons^™

At A Crossroads In The Charm City: Northern Central, United Railways And Power Politics At The Dawn Of Twentieth Century Baltimore - Northern Central Rr Co. V. United Railways & Electrinc Co. 105 Md. 345, Andrew R. Mccarty, David S. Warner

Legal History Publications

In June 1905, attorneys for the Northern Central Railway Company filed suit in Baltimore Superior Court against the United Railways and Electric Company. The suit charged that United Railways owed Northern Central for a portion of the expenses incurred by Northern to repair two bridges in the City of Baltimore, Maryland. Northern Central’s railroad lines ran under the bridges and United Railways’ streetcar lines ran across them. The amount claimed was relatively small for a company the size of the Northern Central and the possibility of collecting somewhat remote even if the case were decided in its favor. However, the …

The Track Record On Takings Legislation: Lessons From Democracy's Laboratories, John D. Echeverria, Thekla Hansen-Young

Georgetown Environmental Law & Policy Institute Papers & Reports

This report by the Georgetown Environmental Law & Policy Institute, entitled "The Track Record on Takings Legislation: Lessons from Democracy's Laboratories," examines the experiences of Florida, Oregon, and several other states with legislation implementing the property rights agenda. The report is the first comprehensive effort to systematically identify and evaluate the on-the-ground consequences of so-called takings "compensation" laws. The major findings of the report are that the takings agenda has undermined community protections by forcing a roll back of existing legal rules and/or by exerting a chilling effect on new legislative activity, special interests such as developers and timber companies …

Takings Constraints: Mechanisms To Minimize The Uncompensated Increment And Limit The Government’S Power To Take Property., Colin P. Parent

Colin P Parent

The breadth of takings scholarship has left useful ideas diluted amongst an ocean of theories. This article addresses that problem by creating a clear and useful taxonomy for takings constraints by which takings theories can be categorized and analyzed. These new categories are (1) “compensatory restraints” on how much government must compensate property owners, (2) “categorical constraints” which absolutely limit which property can be taken and for what purposes, and (3) “processes constraints” which limit how property is condemned.

Furthermore, this article suggests that compensatory restraints are appropriate to minimize economic harms, and categorical constraints are only appropriate to minimize …

The Limits Of Backlash: Assessing The Political Response To Kelo, Ilya Somin

Ilya Somin

The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of economic development, generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted post-Kelo reform legislation to curb eminent domain. This Article is the first comprehensive analysis of the legislative response to Kelo. It challenges the validity of claims that the political backlash to Kelo will provide the same sort of protection for property owners as would a judicial ban on economic development takings. Most …

A Positive Theory Of Eminent Domain, Eric Kades

Eric A. Kades

Law Of The Land – Year In Review, Patricia E. Salkin

Scholarly Works

This column reviews trends and interesting cases in land use law as reported on “Law of the Land” during the last half of 2007. “Law of the Land” is a blog created to be of interest to land use lawyers, planners, developers, professors, and students. The blog is updated daily with a review of a recent land use case decided by a state or federal court. In addition, the site has reported on relevant gubernatorial executive orders, offered book reviews, and occasionally starts a discussion on current events issues, such as climate change and has led to robust debate about …

The Policy Power And "Pubic Use": Balancing The Public Interest Against Private Rights Through Principled Constitutional Distinctions, Christopher Supino

West Virginia Law Review

No abstract provided.

Constitutional Limitations On The Ability Of States To Rehabilitate Their Failed Electric Utility Restructuring Plans, James M. Van Nostrand

Seattle University Law Review

This Article will review the constitutional limitations that come into play when a state seeks to rehabilitate its failed electric utility restructuring plan. Under the Constitution, utilities are entitled to earn a reasonable return on the assets devoted to public service. A situation in which retail rates are frozen may result in denial of a compensatory return if the electric utility is incurring higher costs to generate or procure its power supply. This is the traditional "takings" argument based on the Fifth Amendment to the Constitution, as applied to the states under the Fourteenth Amendment. Apart from this commonly asserted …

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 …

Issue Brief: Overcoming Legal Barriers To The Bulk Sale Of At-Risk Mortgages, Michael S. Barr, James A. Feldman

Other Publications

This memorandum argues that the sale of loans and loan pools to new owners would help to stabilize housing prices, and that such a modification to the REMIC rules would be desirable and well within Congress’ constitutional authority. Furthermore, it would not lead to successful legal claims by investors in securitized loan pools under the Just Compensation or Due Process clauses, which provide the primary constitutional protections for property interests.

"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 …

Bargaining With The State, Robert D. Cooter

Robert Cooter

According to the economic theory of bargaining, each party to a voluntary agreement must receive at least the amount that he can get on his own (“threat value”), plus a share of the surplus from the bargain. Courts frequently monitor bargains between citizens and the state. To protect citizens, the courts should focus on the fairness and efficiency of the threat points of the citizens. Unfortunately, courts often focus on the terms of the agreement, not the threat points. The wrong focus leads courts to impose rules that block bargains that would benefit both parties. I analyze an example where …