Law Commons^™

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay

Indiana Law Journal

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …

What Is The Optimal Basis For Imposing Government Liens?, Randall K. Johnson

Faculty Works

By presenting a detailed case study, which focuses on who gets subjected to government liens, this essay helps U.S. states to make more informed decisions. It seeks to do so by critically assessing Illinois’ historic approach to lien imposition and enforcement, in part, because this state had the most forced sales of real property in recent years. In addition, Illinois also generated the largest amount of related economic losses in the U.S. during that same time period. This state did so despite adhering to the old majority rule for turning over surplus value from such sales. That rule required creditors …

Theft Of The American Dream: New York City's Third-Party Transfer Program, Joseph Mottola

St. John's Law Review

(Excerpt)

On September 5, 2018, Paul Saunders discovered a notice on the front door of his mother’s home: it stated that the property, a Brooklyn brownstone owned by the family for over forty years, now belonged to a company called Bridge Street. His mother, seventy-four-year-old retired nurse Marlene Saunders, had been notified several months earlier that her home, valued at two million dollars, was in danger of being foreclosed because she owed New York City (the “City”) $3,792 in unpaid water charges. Her son had already paid the water bill, but when he contacted the water department, he discovered that …

Historic Preservation: Launched From Grand Central Terminal, But Derailing, Kraz Greinetz

Duke Journal of Constitutional Law & Public Policy Sidebar

In Penn Central Transportation Co. v. City of New York, the Supreme Court authorized the practice of historic preservation. Ruling that when a city designates a building as "historic" and therefore restricting its development, it is not a "taking" of private property that requires just compensation under the Fifth Amendment. Since that time, historic preservation has proliferated in America's cities. But it's time for another look. Since Penn Central was decided, the facts and law of property regulation in the United States have changed. And the decision, which was wrong from an originalist perspective when it was decided, has …

Takings Federalization, Gerald S. Dickinson

Articles

Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …

An Appeal To Heaven—The Timeless Plea For Nollan/Dolan Extension To The Sphere Of Legislative Exactions, Sam Sturgis

Mississippi College Law Review

“. . . [W]henever the legislators endeavour to take away and destroy the property of the people . . . they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience . . . .”1

In 1772, the colonists of Weare, New Hampshire, were given a choice: cede all white pine trees grown on their lands to the King of England or pay a hefty fine. It was an odious decree—one that struck at the very ideal of the American colonies. Imbued as they were with a sense of divine right to …

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …

Right Of Self, Mitchell F. Crusto

Washington and Lee Law Review

The exercise of free will against tyranny is the single principle that defines the American spirit, our history, and our culture. From the American Revolution through the Civil War, the two World Wars, the Civil Rights Movement, and up to today, Americans have embraced the fundamental rights of the individual against wrongful governmental intrusion. This is reflected in our foundational principles, including the Magna Carta, the Bill of Rights to the United States Constitution, the Reconstruction Amendments, the Nineteenth Amendment, and, more recently, in the Supreme Court’s recognition of fundamental individual rights within the Constitution’s penumbras. However, there is no …

State Rejection Of Federal Law, Thomas B. Bennett

Faculty Publications

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …

The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill

Notre Dame Law Review

The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property? The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis …

Property Convergence In Takings Law, Maureen E. Brady

Pepperdine Law Review

Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations—for example, environmental regulations—certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property’s use and enjoyment. This feature of property …

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

The State Of Exactions, Timothy M. Mulvaney

Faculty Scholarship

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of circumstances involving conditional land use permits in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent …

Property-As-Society, Timothy M. Mulvaney

Timothy M. Mulvaney

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …

A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr

Glynn Lunney

To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article traces …

State Constitutional General Welfare Doctrine, Gerald S. Dickinson

Articles

It is black-letter law that the U.S. Supreme Court’s takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court’s takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central to this Article’s reexamination. Instead, this Article’s narrative is federalism, its characters are state courts, and its script is state constitutions.

In the post-Kelo v. New London …

Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed …

Property-As-Society, Timothy M. Mulvaney

Faculty Scholarship

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …

On Bargaining For Development, Timothy M. Mulvaney

Timothy M. Mulvaney

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, …

Progressive Property Moving Forward, Timothy M. Mulvaney

Timothy M. Mulvaney

In his thought-provoking recent article, “The Ambition and Transformative Potential of Progressive Property,” Ezra Rosser contends that, in the course of laying the foundations of a theory grounded in property’s social nature, scholars who participated in the renowned 2009 Cornell symposium on progressive property have “glossed over” property law’s continuing conquest of American Indian lands and the inheritance of privileges that stem from property-based discrimination against African Americans. I fully share Rosser’s concerns regarding past and continuing racialized acquisition and distribution, if not always his characterization of the select progressive works he critiques. Where I focus in this essay, though, …

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Timothy M. Mulvaney

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

Florida Rock Industries, Inc. V. United States: Tipping The Scales In Favor Of Private Property Rights At The Public's Expense, Susan E. Spokes University Of Maine School Of Law

Maine Law Review

In Florida Rock Industries, Inc. v. United States the Court of Appeals for the Federal Circuit held that the denial of a federal wetlands permit under section 1344 of the Clean Water Act may constitute a compensable taking of private property under the Fifth Amendment to the United States Constitution. The court remanded the case to the Federal Court of Claims to determine the value of the property remaining after the permit denial, while warning the trial court that the existing record did not support a finding of the loss of all economically viable use of the property. The Federal …

The Law Of Taking Elsewhere And, One Suspects, In Maine, Orlando E. Delogu

Maine Law Review

The debate as to the meaning of the Taking Clause in the Fifth Amendment of the United States Constitution seems unending. This short, almost cryptic constitutional provision, “nor shall private property be taken for public use, without just compensation,” has over the years given rise to both court challenges and philosophic debate aimed at parsing out the meaning and parameters of this language. As the need for regulatory controls (imposed by every level of government) has increased, the number of challenges and the stridency of the debate has also increased. Moreover, these challenges have increasingly found their way to the …

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Maine Law Review

In his well-known article, Property, Speech, and the Politics of Distrust, Professor Richard Epstein—a leading contemporary voice in the fields of property theory and constitutional law—makes a simple but compelling argument. There has been, he argues, a mistake in “the dominant mode of thinking about property rights during the past fifty years [that] has been ... of constitutional dimensions.” This mistake, in Professor Epstein's view, is the refusal of the federal courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. Using free speech as his example, Professor …

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

Articles

Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …

The [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan

Donald J. Kochan

Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier

Maine Law Review

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Supreme Court held that a moratorium on development imposed during the process of devising a comprehensive land use plan did not constitute a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. The scope of Tahoe-Sierra, and thus its ultimate impact on Supreme Court takings jurisprudence, had been severely narrowed and redefined by the courts since the landowners first alleged a taking over fifteen years before the issue was ultimately decided by the Supreme Court. It is important to note that this …

Kelo V. City Of New London-Wrongly Decided And A Missed Opportunity For Principled Line Drawing With Respect To Eminent Domain Takings, Orlando E. Delogu

Maine Law Review

No eminent domain taking case in the last twenty-five years has excited the level of interest, attention, and debate as has Kelo v. City of New London. The Supreme Court’s decision has not quelled that debate. If anything the stridency, the emotional tenor, of the debate has increased. And in the few months since the decision came down, several dozen states (in the absence of any meaningful federal limitation on what constitutes “public use”) have proposed statutes or constitutional amendments that would limit their exercise of eminent domain (taking) powers. There is even talk of federal legislation to temper, to …

A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez

Maine Law Review

Takings doctrine is a mess. Let's just accept that and establish specialized federal and state "takings courts" to adjudicate takings claims. Takings claims arise when governmental conduct is alleged to detrimentally affect private property. Adjudication of takings claims may initially seem straightforward: the Fifth Amendment's Just Compensation Clause, as well as analogous state constitutional provisions, plainly provide that the government shall not take private property for public use without just compensation. In 1978, the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. Decades later, in 2005, the Court abrogated a test for takings that it had …