Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication
- Publication Type
Articles 1 - 16 of 16
Full-Text Articles in Law
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
Articles
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 ovcr 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 …
Due Process For Cash Civil Forfeitures In Structuring Cases, Timothy J. Ford
Due Process For Cash Civil Forfeitures In Structuring Cases, Timothy J. Ford
Michigan Law Review
On January 22, 2013, Tarik “Terry” Dehko sat down to pay the bills for his small Michigan grocery store when a federal agent entered his office. The agent told Dehko that the Internal Revenue Service (IRS) had executed a seizure warrant and taken the market’s entire bank account—more than $35,000. When Dehko asked how he could run his business without its bank account, the agent replied, “I don’t care.” The government did not charge Dehko with a crime that day. In fact, Dehko had never been charged with any crime in his life. Instead, the government waited until July 19 …
Emergency Takings, Brian Angelo Lee
Emergency Takings, Brian Angelo Lee
Michigan Law Review
Takings law has long contained a puzzle. The Fifth Amendment to the U.S. Constitution requires the government to pay “just compensation” to owners of private property that the government “takes.” In ordinary circumstances, this requirement applies equally whether the property is confiscated or destroyed, and it also applies to property confiscated in emergencies. Remarkably, however, courts have repeatedly held that if the government destroys property to address an emergency, then a “necessity exception” relieves the government of any obligation to compensate the owner of the property that was sacrificed for the public good. Although the roots of this startling principle …
Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin
Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin
Michigan Law Review
The purpose of the Fifth Amendment’s Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means …
Judicial Takings: Musings On Stop The Beach, James E. Krier
Judicial Takings: Musings On Stop The Beach, James E. Krier
Articles
Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their …
Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres
Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres
Michigan Journal of Race and Law
At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state …
Eminent Domain For The Seizure Of Underwater Mortgages, Sarah Thompson
Eminent Domain For The Seizure Of Underwater Mortgages, Sarah Thompson
University of Michigan Journal of Law Reform Caveat
Like many cities in the United States, Richmond, California suffered greatly from the recent mortgage crisis. The foreclosure crisis hit Richmond hard in 2009, when more than 2,000 homes in Richmond went into foreclosure. This figure is especially shocking given that there were 18,659 owner-occupied housing units in the city at that time. In 2012, the city saw an additional 914 foreclosures and a foreclosure rate of thirty out of 1,000 homes (well above the national average of thirteen of every 1,000 homes). Today, it is reported that nearly forty-six percent of homes in Richmond are “underwater,” meaning that what …
Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea
Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea
Michigan Law Review
Federalist No. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions. Just as the Constitution's protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. The majority position among historians today appears …
Public Ruses, James E. Krier, Christopher Serkin
Public Ruses, James E. Krier, Christopher Serkin
Articles
The public use requirement of eminent domain law may be working its way back into the United States Constitution. To be sure, the words "public use" appear in the document-and in many state constitutions as well, but the federal provision applies to the states in any event-as one of the Fifth Amendment's limitations on the government's inherent power to take private property against the will of its owners. (The other limitation is that "just compensation" must be paid, of which more later.) Any taking of private property, the text suggests, must be for public use. Those words, however, have amounted …
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Articles
The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Articles
Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Articles
Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …
Caste, Class, And Equal Citizenship, William E. Forbath
Caste, Class, And Equal Citizenship, William E. Forbath
Michigan Law Review
There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …
The Boundaries Of Private Property, Michael A. Heller
The Boundaries Of Private Property, Michael A. Heller
Articles
If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …
The Abolition Of Self-Help Repossession: The Poor Pay Even More, James J. White
The Abolition Of Self-Help Repossession: The Poor Pay Even More, James J. White
Articles
In this paper I propose to identify possible ways in which a court could uphold the constitutionality of section 9-503 without an explicit rejection of Fuentes v. Shevin. It is my thesis that Fuentes v. Shevin is probably an undesirable outcome, and that the application of the same doctrine to self-help repossession is certainly undesirable and would constitute due process gone berserk. My arguments will not be novel; each has been suggested by the courts that have considered this matter, or by the briefs of the lawyers who have argued these cases. I cannot even claim to have collected the …
Compulsory Construction Of New Lines Of Railroad, Kenneth F. Burgess
Compulsory Construction Of New Lines Of Railroad, Kenneth F. Burgess
Michigan Law Review
In the half century of public regulation of railroads in the United States, regulatory legislation has dealt primarily with functions incident to the operation of existing enterprises. The basic concept has been that railroad corporations as common carriers have voluntarily assumed obligations to the public which the public has a right to require to be performed.