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Full-Text Articles in Law

Maralex Resources, Inc. V. Barnhardt, Bradley E. Tinker Apr 2019

Maralex Resources, Inc. V. Barnhardt, Bradley E. Tinker

Public Land & Resources Law Review

In Maralex Resources v. Barnhardt, Maralex and property owners brought an action to protect private property from BLM inspections of oil and gas lease sites. The Tenth Circuit looked at the plain meaning of a congressional statute and held in favor of Maralex, finding that BLM lacked authority to require a private landowner to provide BLM with a key to inspect wells of their property. The Tenth Circuit held BLM has the authority to conduct inspections without prior notice on private property lease sites; however, it is required to contact the property owner for permission before entering the property.


An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk Oct 2016

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …


Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan Dec 2014

Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan

Donald J. Kochan

This Article presents a framework for reason giving requirements in administrative law that includes a demand on agencies that reasons be produced contemporaneously with agency decisions where multiple constituencies (including regulated entities) and not just the courts (and judiciary review) are served and respected as consumers of the reasons. The Article postulates that the January 2015 decision by the U.S. Supreme Court in the case of T-Mobile South, LLC v. City of Roswell may prove to be groundbreaking and stir this framework to the forefront of administrative law decisionmaking. There are some fundamental yet very understated lessons in the T-Mobile …


The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake Sep 2010

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily …


Slides: Rethinking Western Water Law: Restoring The Public Interest In Western Water Law, Mark Squillace Jun 2009

Slides: Rethinking Western Water Law: Restoring The Public Interest In Western Water Law, Mark Squillace

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

20 slides


Protecting Private Property With Constitutional Judicial Review: A Social Welfare Approach, Daniel H. Cole, Peter Z. Grossman Jan 2009

Protecting Private Property With Constitutional Judicial Review: A Social Welfare Approach, Daniel H. Cole, Peter Z. Grossman

Articles by Maurer Faculty

This article uses a social welfare approach to determine if and when the institution of constitutional judicial review of property regulation and expropriation is efficient. A model is proposed in which property rights protection is a component of social costs. Constitutional judicial review is assumed to either add to or subtract on net from those costs, affecting social welfare generally. It will be shown that under realistic conditions, reflected in real instances, that constitutional judicial review might not enhance economic efficiency or overall social welfare. We show that the efficiency of constitutional judicial review is likely to vary within the …


Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond Jun 2007

Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

8 pages.

Includes bibliographical references

"Sally Fairfax, UC-Berkeley, Helen Ingram, UC-Irvine, and Leigh Raymond, Purdue University" -- Agenda


Political Institutions, Judicial Review, And Private Property: A Comparative Institutional Analysis, Daniel H. Cole Jan 2007

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 …


Due Process Land Use Claims After Lingle, J. Peter Byrne Jan 2007

Due Process Land Use Claims After Lingle, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Supreme Court held in Lingle v. Chevron U.S.A. Inc. that challenges to the validity of land use regulations for failing to advance governmental interests must be brought under the Due Process Clause, rather than the Takings Clause, and must be evaluated under a deferential standard. This Article analyzes and evaluates the probable course of such judicial review, and concludes that federal courts will resist due process review of land use decisions for good reasons but not always with an adequate doctrinal explanation. However, state courts can use due process review to provide state level supervision of local land use …


Public Ruses, James E. Krier, Christopher Serkin Jan 2004

Public Ruses, James E. Krier, Christopher Serkin

Articles

The public use requirement of eminent domain law may be working its way back into the United States Constitution. To be sure, the words "public use" appear in the document-and in many state constitutions as well, but the federal provision applies to the states in any event-as one of the Fifth Amendment's limitations on the government's inherent power to take private property against the will of its owners. (The other limitation is that "just compensation" must be paid, of which more later.) Any taking of private property, the text suggests, must be for public use. Those words, however, have amounted …


Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier Jan 1999

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Faculty Scholarship

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …


Judicial Review Of The Compensation Law In Hungary, Peter Paczolay Jan 1992

Judicial Review Of The Compensation Law In Hungary, Peter Paczolay

Michigan Journal of International Law

This article analyzes the Hungarian Constitutional Court's decisions regarding a specific problem of property rights, namely the Compensation Law. It does not attempt to examine the details of broad subjects such as property rights or privatization.


Standards For Judicial Review Of Forest Plans: Will The Courts Not See The Forest For The Trees, Wells D. Burgess Jun 1987

Standards For Judicial Review Of Forest Plans: Will The Courts Not See The Forest For The Trees, Wells D. Burgess

The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10)

50 pages.

Contains 2 attachments.


Public Interest Review Of Water Right Allocation And Transfer In The West: Recognition Of Public Values, Douglas L. Grant Jun 1987

Public Interest Review Of Water Right Allocation And Transfer In The West: Recognition Of Public Values, Douglas L. Grant

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

37 pages.

Contains references.


Economics Of Public Use, Thomas W. Merrill Jan 1986

Economics Of Public Use, Thomas W. Merrill

Faculty Scholarship

The fifth amendment to the United States Constitution, as well as most state constitutions, provides that private property shall not be taken "for public use" unless just compensation is paid. American courts have long construed this to mean that some showing of "publicness" is a condition precedent to a legitimate exercise of the power of eminent domain. Thus, when a proposed condemnation of property lacks the appropriate public quality, the taking is deemed to be unconstitutional and can be enjoined. In practice, however, most observers today think the public use limitation is a dead letter. Three recent decisions, upholding takings …


Withdrawals Of Public Lands Under The Federal Land Policy And Management Act, David H. Getches Jun 1984

Withdrawals Of Public Lands Under The Federal Land Policy And Management Act, David H. Getches

The Federal Land Policy and Management Act (Summer Conference, June 6-8)

17 pages.


Wilderness And The Public Lands, John D. Leshy Jun 1984

Wilderness And The Public Lands, John D. Leshy

The Federal Land Policy and Management Act (Summer Conference, June 6-8)

18 pages (includes chart).


Agenda: The Federal Land Policy And Management Act, University Of Colorado Boulder. Natural Resources Law Center Jun 1984

Agenda: The Federal Land Policy And Management Act, University Of Colorado Boulder. Natural Resources Law Center

The Federal Land Policy and Management Act (Summer Conference, June 6-8)

Conference organizers and/or faculty included University of Colorado School of Law professors James N. Corbridge, Lawrence J. MacDonnell, David H. Getches and Charles F. Wilkinson.

This important piece of legislation, passed by Congress in 1976 following many years of extensive study and debate, directs the activities of the nation's major land manager--the Bureau of Land Management. The FLPMA conference will bring together a distinguished group of experts to review the law itself, to consider the effectiveness with which it has been implemented, and to discuss the key issues which have arisen under its implementation.


Interest Representation And The Federal Land Policy And Management Act, Michigan Law Review May 1982

Interest Representation And The Federal Land Policy And Management Act, Michigan Law Review

Michigan Law Review

The role of the BLM under the FLPMA, this Note argues, is accurately captured in the "interest representation" model of administrative law; judicial review under this model serves to vindicate the "participation rights" of parties interested in public lands management. Part I places the FLPMA in the context of other recent congressional reform efforts and attempts to justify heightened judicial scrutiny of the BLM's activities. To protect citizens' participation rights, it concludes, courts should recognize a limited right to initiate the planning and management provisions of the FLPMA. The Act, in other words, should be interpreted to comprehend "agenda forcing" …


The Mineral Leasing Act Of 1920, Patrick H. Martin Jul 1980

The Mineral Leasing Act Of 1920, Patrick H. Martin

Federal Lands, Laws and Policies and the Development of Natural Resources: A Short Course (Summer Conference, July 28-August 1)

39 pages (includes sample forms).

Pages M-26; M-36; M-38; and M-40 do not contain pagination or content, and were not scanned.

Contains references (page M-1).


Assessment Of Real Property For Taxation, Kenneth K. Luce Jun 1937

Assessment Of Real Property For Taxation, Kenneth K. Luce

Michigan Law Review

A taxpayer's suit to have the assessment on his real property lowered raises some of the oldest and most troublesome problems in the law of taxation. Invariably both the taxpayer and the government are in position to present convincing evidence and forceful argument regarding the fairness of the assessment. Moreover, to the lawyer the problems of appellate review involved in the taxpayer's suit are exceedingly complex. Except in the case of the public utility, the administrative process usually begins with the fixing of the assessment by the local assessing official. From his decision the taxpayer may in most jurisdictions appeal …