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Articles 1 - 7 of 7
Full-Text Articles in Law
The State Of Exactions, Timothy M. Mulvaney
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
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
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 …
When Deciding Whether To Allow A Taking Of Property We Need To Ask What We Want Property Rights To Do, Douglas C. Harris
When Deciding Whether To Allow A Taking Of Property We Need To Ask What We Want Property Rights To Do, Douglas C. Harris
Douglas C Harris
In recognition of the dangers inherent to a regime that enables a majority of owners to terminate the individual property interests of a dissenting minority, the Strata Property Act requires that strata corporations secure court confirmation of dissolution votes. Not surprisingly, the shift to a lower dissolution threshold, the rapidly rising land values in British Columbia’s urban centres, and the increased costs of maintaining aging buildings, have precipitated a growing number of dissolution votes and a steady flow of applications to the British Columbia Supreme Court (BCSC) to confirm the votes.
Owning And Dissolving Strata Property, Douglas C. Harris
Owning And Dissolving Strata Property, Douglas C. Harris
Douglas C Harris
Strata or condominium property creates multiple privately owned lots or units within an association of owners. Dissolving strata property involves winding-up the association and terminating the private interests. As a result, the non-consensual dissolution of strata property involves the taking of property from those owners who oppose dissolution. The owners of individual lots become co-owners of the land formerly within the association, but the non-consenting owners have their property interests in separate lots taken from them. Beginning with the observation that non-consensual dissolution of strata property results in a taking of property, this article analyzes British Columbia’s move to facilitate …
State Constitutional General Welfare Doctrine, Gerald S. Dickinson
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 …
Energy And Eminent Domain, James W. Coleman, Alexandra B. Klass
Energy And Eminent Domain, James W. Coleman, Alexandra B. Klass
Faculty Journal Articles and Book Chapters
This Article examines the growing opposition to the use of eminent domain for energy transport projects such as oil pipelines, gas pipelines, and electric transmission lines. Such projects were protected from the state legislative reforms that restricted eminent domain following the Supreme Court’s controversial decision in Kelo v. City of New London in 2005 but are now under increased scrutiny. This Article evaluates why U.S. energy transport projects have become so controversial and suggests how states and the federal government should evaluate the need for eminent domain for these projects and enact appropriate reforms. We first detail the significant changes …