Law Commons^™

A New Takings Clause? The Implications Of Cedar Point Nursery V. Hassid For Property Rights And Moratoria, Benjamin Alexander Mogren

William & Mary Bill of Rights Journal

In part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a …

Property And Local Knowledge, Malcolm Lavoie

Catholic University Law Review

Property rights play an important but largely under-appreciated role in channeling local knowledge into decisions about physical resources. Property devolves decision-making authority to a dispersed pool of owners, who are likely to be aware of local conditions relevant to their resources. As a result, property owners are often in a position to make better-informed decisions about the use of the resource than other parties. The homeowner who preemptively repairs an old roof, the retailer who offers a new product for sale, and the farmer who decides to switch crops are all decision-makers who are empowered through property rights to act …

Evaluating Emergency Takings: Flattening The Economic Curve, Robert H. Thomas

William & Mary Bill of Rights Journal

Desperate times may breed desperate measures, but when do desperate measures undertaken as a response to an emergency trigger the Fifth Amendment’s requirement that the government provides just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power”—a sovereign government’s power to regulate property’s use in order to further the public health, safety, and welfare—and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. After all, emergencies …

Under The River And Through The Common Law: Analyzing The Impacts And Propensity Of State Adoption Of The Ppl Montana Navigability-For-Title Standard, Jessica Kraus

William & Mary Environmental Law and Policy Review

No abstract provided.

U.S. Property Law: A Revised View, Kamaile A.N. Turčan

William & Mary Environmental Law and Policy Review

No abstract provided.

A Strange Land And A Peculiar Problem: Using Local Knowledge To Resolve Ambiguous Property Descriptions In Appalachia, William L. Spotswood

William & Mary Law Review Online

Conveying property in Appalachia can be somewhat like a box of chocolates: “You never know what you’re gonna get.” Carved by ancient rivers and winding streams, the seemingly never-ending “hollers” and hills of Appalachia can disorient even the best navigator. Couple the region’s rugged topography with an already ambiguous demarcation system, and properties once mapped by metes and bounds descriptions become impossible to re-create with any sort of certainty. Thus, though rooted in a desire for clarity, the combination of mountainous terrain and imperfect demarcation results in a property system riddled with ambiguity. Due to this inherent definitional problem in …

The Importance Of Viewing Property As A System, Lynda L. Butler

Faculty Publications

Can--or should--the American property system adapt to curb the excesses inherent in the dominant form of capitalism? Those extolling the virtues of privatization of resources would likely answer in the negative. Such a response would ignore the core functions and infrastructure of the American institution of property. This Article discusses the structure of property that enables property law to evolve over time, reacting to changing conditions, recognizing informal customs and usages, and otherwise taking into account important feedbacks. It explains how property provides an ordering system of concepts and principles that define and govern relations between a society and its …

The Future Of The Public Trust: The Muddied Waters Of Rockweed Management In Maine, Sarah M. Reiter, Dillon Post, Lisa Wedding, Aaron L. Strong

Ocean and Coastal Law Journal

Seaweeds, or more properly, intertidal macroalgae have never been easy to classify—by law or by science: they are not part of the animal kingdom, nor part of the plant kingdom (and scientific controversies about their phylogenetic placement abound), they are not completely on terra firma, nor completely submerged in ocean water. One such organism that exists at the space in between land and sea—the brown alga commonly known as Rockweed (Ascophyllum nodosum) presents an intriguing legal question with implications that extend far beyond the shoreline. Recently, in Ross v. Acadian Seaplants Ltd. , the Supreme Judicial Court of Maine (Court) …

Maximizing The Value Of America’S Newest Resource, Low- Altitude Airspace: An Economic Analysis Of Aerial Trespass And Drones, Tyler Watson

Indiana Law Journal

Recognizing that tort law is a unique area of law that was judicially created by rational human beings with an innate sense of economic justice, this Note seeks to apply positive economic theory—derived from ex post analyses of tort cases—to an ex ante analysis to predict how and to what extent the existing and proposed aerial trespass rules will further economic efficiency in the context of drones and airspace rights. Part I will provide (1) an overview of the Federal Aviation Administration’s (FAA) current regulatory framework and the development of the common law aerial trespass doctrine and (2) an overview …

Third-Party Interests And The Property Law Misfit In Patent Law, Sarah Rajec

Faculty Publications

Courts and scholars have long parsed the characteristics of patent grants and likened them, alternately, to real or personal property law, monopolies, public franchises and other regulatory grants, or a hybrid of these. The characterizations matter, because they can determine how patents are treated for the purposes of administrative review, limitations, and remedies, inter alia. And these varied treatments in turn affect incentives to innovate. Patents are often likened to real property in an effort to maximize rights and allow inventors to internalize all of the benefits from their activities. And courts often turn first to real property analogies when …

Property's Problem With Extremes, Lynda L. Butler

Faculty Publications

Western-style property systems are ill-equipped to deal with extremes--extreme poverty, extreme wealth, extreme environmental harm. Though they can effectively handle many problems, the current systems are inherently incapable of providing the types of reform needed to address extreme situations that are straining the fabric of societies--situations that are stressing the integrity of core societal and natural systems to the breaking point. The American property system, in particular, is problematic. The system has a long tradition of strong individual rights and relies primarily on the efficiency norm to operate and shape the incentives of rights holders. The economic model that now …

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …

Property's Constitution, James Y. Stern

James Y. Stern

Long-standing disagreements over the definition of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses establish individual rights that can be asserted only if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do …

The Non-Impact Of The United States Supreme Court Regulatory Takings Cases On The State Courts: Does The Supreme Court Really Matter?, Ronald H. Rosenberg

Ronald H. Rosenberg

No abstract provided.

Property Rights And Intrabrand Restraints, Alan J. Meese

Alan J. Meese

Intrabrand restraints limit the discretion of one or more sellers-usually dealers-with respect to the disposition of a product sold under a single brand. While most scholars believe that such contracts can help assure optimal promotion of a manufacturer's products, there is disagreement about the exact manner in which such restraints accomplish this objective. Many scholars believe that such restraints themselves induce dealers to engage in promotional activities desired by the manufacturer. Others believe that such restraints merely serve as "performance bonds," which dealers will forfeit if they fail to follow the manufacturer's precise promotional instructions. Some scholars reject both approaches, …

Property, Aspen, And Refusals To Deal, Alan J. Meese

Alan J. Meese

No abstract provided.

How To Write A Life: Some Thoughts On Fixation And The Copyright/Privacy Divide, Laura A. Heymann

Laura A. Heymann

No abstract provided.

The Pathology Of Property Norms: Living Within Nature's Boundaries, Lynda L. Butler

Lynda L. Butler

No abstract provided.

Property As A Management Institution, Lynda L. Butler

Lynda L. Butler

No abstract provided.

Private Land Use, Changing Public Values And Notions Of Relativity, Lynda L. Butler

Lynda L. Butler

No abstract provided.

Introduction: Comparative Property Rights, Lynda L. Butler

Lynda L. Butler

No abstract provided.

The Natural Property Rights Straitjacket: The Takings Clause, Taxation, And Excessive Rigidity, Eric Kades

Eric A. Kades

Natural property rights theories have become the primary lens through which conservative jurists and scholars view the Constitution’s main property rights provision, the Takings Clause. One of their most striking arguments is that progressive income taxation — applying higher tax rates to higher incomes — is an unconstitutional taking of wealthy taxpayers’ property. This has become part and parcel of well-established battle lines between conservative property rights advocates and their liberal counterparts. What has gone unnoticed is that the very same argument deployed against progressive taxation also deems regressive taxation — applying lower tax rates to higher incomes — an …

Foreword: Property Rights And Economic Development, Eric Kades

Eric A. Kades

No abstract provided.

Hohfeld And Property, Michael S. Green

Michael S. Green

No abstract provided.

Brigham-Kanner Property Rights Journal, Volume 8, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Federalism Dimension of Constitutional Property

October 4-5, 2018

Panel 1: The Federalism Dimension of Constitutional Property: A Tribute to Sterk

Panel 2: Background Principles of Common Law and Constitutional Property

Lunch Roundtable: Other Emerging Issues in Constitutional Protection of Property

Panel 4: The Constitutionality of Land Use Exactions

Contributing Author (Reveley)

A Georgist Perspective Of Petroleum Taxation, Joseph Leeson

Indiana Journal of Global Legal Studies

Over a century ago, the town of Arden, Delaware, was founded on a unique single-tax-community system that radically altered the popular concept of land ownership. This system was premised on concepts developed by a man few know today but who was a major figure in economics during the 1800s, Henry George. George's public finance theory has been described as having received "intermittent attention over the years, with many eminent names in economics making at least a passing comment, but it has seen comparably little action in the policy debate arena and has been largely ignored by the modern era of …

Time For A Change In Eminent Domain: A “Dirt Farmer’S” Story Shows Why Just Compensation Should Include Lost Profits, Edward Walton

William & Mary Bill of Rights Journal

No abstract provided.

The Backwards Gesture: Historical Narratives In Carol Rose's Property Scholarship, Daniel J. Sharfstein

Daniel Sharfstein

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Augmented Reality, Augmented Ethics: Who Has The Right To Augment A Particular Physical Space?, Erica L. Neely

Philosophy and Religion Faculty Scholarship

Augmented reality (AR) blends the virtual and physical worlds such that the virtual content experienced by a user of AR technology depends on the user’s geographical location. Games such as Pokémon GO and technologies such as HoloLens are introducing an increasing number of people to augmented reality. AR technologies raise a number of ethical concerns; I focus on ethical rights surrounding the augmentation of a particular physical space. To address this I distinguish public and private spaces; I also separate the case where we access augmentations via many different applications from the case where there is a more unified sphere …

Brigham-Kanner Property Rights Conference Journal, Volume 7, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Future of Regulatory Takings

October 12-13, 2017

Panel 1: The Future of Land Use Regulation: A Tribute to Callies

Panel 3: Property Rights in Water

Panel 4: The Denominator Problem and Other Emerging Issues in the Regulatory Takings Field