Law Commons^™

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

UF Law Faculty Publications

Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council -- the modern U.S. Supreme Court's seminal regulatory takings decision -- this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own -- forming what this Article calls the new …

Political Institutions, Judicial Review, And Private Property: A Comparative Institutional Analysis, Daniel H. Cole

Articles by Maurer Faculty

Since Madison, jurists of all ideological stripes have more or less casually presumed that constitutional judicial review is absolutely necessary to protect private property rights against over-regulation by political bodies. During the twentieth century, this presumption led directly to the institution of regulatory takings doctrine.

Recently, the economist William Fischel and the legal scholar Neil Komesar have raised important questions about, respectively, the utility and the sufficiency of constitutional judicial review for protecting private property. This article supports their arguments with theoretical and historical evidence that constitutional judicial review (1) is not strictly necessary for protecting private property rights, and …