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Regulatory Takings: A Chronicle Of The Construction Of A Constitutional Concept, Garrett Power
Regulatory Takings: A Chronicle Of The Construction Of A Constitutional Concept, Garrett Power
Garrett Power
In the American constitutional system the sovereign has the power to enact “regulations which are necessary to the common good and general welfare.” But the Fifth Amendment to the United States Constitution proscribes that : “No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.” And the question of whether a sovereign regulation has “taken” private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles …
Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
Erin Ryan
As climate change, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But energy reform efforts may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule and ushered in the New Federalism era in 1992. This dry technicality also poses ongoing regulatory obstacles in such critical interjurisdictional contexts as stormwater management, climate regulation, and disaster response. Such is the enormous power …
The Assault On Classical Legal Thought In Colombia (1886-1920), Jorge Gonzalez-Jacome
The Assault On Classical Legal Thought In Colombia (1886-1920), Jorge Gonzalez-Jacome
Jorge Gonzalez-Jacome
The topic of this paper is the tensions among classical legal thought (CLT) and other modes of legal thought in Colombia between 1886 and 1920. My main claim is that, during this period, CLT was attacked by a version of traditionalism and by a social-based legal thought. The former was evident in the constitutional discussions around the 1886 Colombian Constitution, while the latter became apparent in the interpretation of the Civil Code in areas such as property, contracts and torts. My goal is to tell a story that gives a sense of the fall of CLT as a process crossed …
Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan
Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan
Donald J. Kochan
From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …