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Full-Text Articles in Law
Property-As-Society, Timothy M. Mulvaney
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 …
On Bargaining For Development, Timothy M. Mulvaney
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
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
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 …
Foreground Principles, Timothy M. Mulvaney
Foreground Principles, Timothy M. Mulvaney
Timothy M. Mulvaney
The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question. The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the …
Exactions For The Future, Timothy M. Mulvaney
Exactions For The Future, Timothy M. Mulvaney
Timothy M. Mulvaney
New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. …
Proposed Exactions, Timothy M. Mulvaney
Proposed Exactions, Timothy M. Mulvaney
Timothy M. Mulvaney
In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than …
Exactions For The Future, Timothy M. Mulvaney
Exactions For The Future, Timothy M. Mulvaney
Timothy M. Mulvaney
New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. …