Law Commons^™

Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley

Scholarly Articles

Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government …

U.S. Supreme Court Surveys: 2016 Term. Murr. V. Wisconsin: Identifying The Proper "Parcel As A Whole" In Regulatory Takings Cases, Bruce I. Kogan

Law Faculty Scholarship

No abstract provided.

Rights At Risk In Privatized Public Housing, Jaime Alison Lee

All Faculty Scholarship

Traditional public housing is dwindling. Federal policy has increasingly encouraged privatization, shifting stewardship of public housing out of the hands of government and into the hands of private, for-profit companies. Privatization in this context has both benefits and risks. A particularly compelling area of study is the attempt by lawmakers to conscript private contractors into serving public policy goals. Private landlords are obligated not merely to provide housing, but to conduct themselves in ways that promote the interests of vulnerable people. The case of public housing suggests that legislative mandates and contractual obligations are not enough to assure this outcome, …

Exactions For The Future, Timothy M. Mulvaney

Faculty Scholarship

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. …

Bringing Clarity To Title Clearing: Tax Foreclosure And Due Process In The Internet Age, James J. Kelly Jr.

Journal Articles

The foreclosure of property tax liens performs an essential economic function by reconnecting underutilized properties to the real estate market. To clear title in an efficient and just manner, local jurisdictions foreclosing on tax liens require clear, balanced procedures for the provision of notice to affected parties. In its 2006 decision in Jones v. Flowers, the U.S. Supreme Court found that the foreclosing jurisdiction's lack of direct follow-up on returned notice mailings denied the addressee due process because the foreclosing party did not take steps that would be chosen by one desirous of actually informing the property owner. In subjecting …

Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.

The Landscape Of Constitutional Property, Thomas W. Merrill

Faculty Scholarship

The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before …

Jam For Justice Holmes: Reassessing The Significance Of Mahon, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

When courts and commentators discuss Pennsylvania Coal Co. v. Mahon, they use the same word with remarkable regularity: famous. Mahon has achieved this fame in part because it was the occasion for conflict between judicial giants, and because the result seems ironic. Justice Oliver Wendell Holmes, Jr.--the great Lochner dissenter and a jurist generally considered a champion of judicial deference to legislatures in the sphere of economic decision-making--wrote the opinion striking down a Pennsylvania statute barring coal mining that could cause the surface to cave-in. Sharply dissenting from Holmes's opinion was his consistent ally on the Court, Justice Louis …

Understanding Mahon In Historical Context, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Despite its enormous influence on constitutional law, Pennsylvania Coal Co. v. Mahon is just such an opinion; the primary purpose of the author’s article Jam for Justice Holmes: Reassessing the Significance of Mahon is to clarify Holmes's intent by placing the opinion in historical context and in the context of Holmes's other opinions. While other scholars have also sought to place Mahon in context, his account differs in large part because of its recognition, as part of the background of Mahon, of a separate line of cases involving businesses affected with a public interest.

The author argues that at …

Conflicts Between Water Rights Administration And Water Quality Protection, Jan D. Laitos

Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3)

43 pages.

Economic Due Process And The Takings Clause, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The discussion which follows will examine the new verbalizations repeatedly employed in Supreme Court takings decisions of the past decade and the Court's enlistment of the just compensation requirement as a basis for undertaking substantive review of legislation. As an introduction, the distinctive historical roles and roots of the substantive due process and just compensation requirements will be reviewed.

The National Park System And Development On Private Lands: Opportunities And Tools To Protect Park Resources, Michael Mantell

External Development Affecting the National Parks: Preserving "The Best Idea We Ever Had" (September 14-16)

34 pages.

Contains footnotes.

Do Government Rights Prevail, Or Are Shoshone Indians Trespassers In Their Own Country?, Richard B. Collins

Publications

No abstract provided.

Constitutional Law - Due Process - Notice By Publication Is Constitutionally Inadequate In Tax Sale Proceeding, Martin A. Geer

Scholarly Works

In 1976 the Michigan Supreme Court’s determined in Doe v. State that procedural due process requires an owner of a significant interest in real property to be given notice of the state’s foreclosure petition and a meaningful opportunity for a hearing which he may challenge the state’s claim that property taxes remain unpaid without legal justification. This casenote examines the existing legal precedent during the Doe v. State decision, the Michigan Supreme Court’s decision and analysis, and the legislature’s actions following the decision.

Of "Liberty" And "Property", Henry Paul Monaghan

Faculty Scholarship

After a century of experience, we are now thoroughly accustomed to viewing the fourteenth amendment as imposing upon the experimentation otherwise permitted in our fifty separate "laboratories" limitations that do not materially differ from those fastened upon the national government by the bill of rights. The history of this evolution is far too well known to justify rehearsing here even in the barest outline. But it bears noting that few, if any, observers believe that the language of the amendment has played a significant role in this historical evolution. Here, as elsewhere, "[b]ehind the words ... are postulates which limit …