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Full-Text Articles in Law

Parks And Separation: How The Mississippi Legislature Decided Just Compensation In Bay Point Properties, Inc. V. Mississippi Transportation Commission, Kyle Usner Apr 2024

Parks And Separation: How The Mississippi Legislature Decided Just Compensation In Bay Point Properties, Inc. V. Mississippi Transportation Commission, Kyle Usner

Mississippi College Law Review

At first glance, Bay Point comes across as the standard, run-of-the-mill eminent domain case: the government contracts with a citizen for an express easement over privately-owned land limited to a certain use; the government then exceeds the scope of that easement, resulting in a taking. Governmental taking is usually not anything outside of the norm. But with a potential seven billion dollars' worth of federally funded highway projects destined for Mississippi highway only a Presidential signature away from being approved, this decision is not one Mississippi landowners should ignore. Further, the crux of Bay Point lies with an issue of …


The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay Jan 2024

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay

Indiana Law Journal

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …


Wrong Or (Fundamental) Right?: Substantive Due Process And The Right To Exclude, Jack May Dec 2023

Wrong Or (Fundamental) Right?: Substantive Due Process And The Right To Exclude, Jack May

Washington Law Review

Substantive due process provides heightened protection from government interference with enumerated constitutional rights and unenumerated—but nevertheless “fundamental”—rights. To date, the United States Supreme Court has never recognized any property right as a fundamental right for substantive due process purposes. But in Yim v. City of Seattle, a case recently decided by the Ninth Circuit, landlords and tenant screening companies argued that the right to exclude from one’s property should be a fundamental right. Yim involved a challenge to Seattle’s Fair Chance Housing Ordinance, which, among other things, prohibits landlords and tenant screening companies from inquiring about or considering a …


What Is The Optimal Basis For Imposing Government Liens?, Randall K. Johnson Aug 2023

What Is The Optimal Basis For Imposing Government Liens?, Randall K. Johnson

Faculty Works

By presenting a detailed case study, which focuses on who gets subjected to government liens, this essay helps U.S. states to make more informed decisions. It seeks to do so by critically assessing Illinois’ historic approach to lien imposition and enforcement, in part, because this state had the most forced sales of real property in recent years. In addition, Illinois also generated the largest amount of related economic losses in the U.S. during that same time period. This state did so despite adhering to the old majority rule for turning over surplus value from such sales. That rule required creditors …


Theft Of The American Dream: New York City's Third-Party Transfer Program, Joseph Mottola Jun 2023

Theft Of The American Dream: New York City's Third-Party Transfer Program, Joseph Mottola

St. John's Law Review

(Excerpt)

On September 5, 2018, Paul Saunders discovered a notice on the front door of his mother’s home: it stated that the property, a Brooklyn brownstone owned by the family for over forty years, now belonged to a company called Bridge Street. His mother, seventy-four-year-old retired nurse Marlene Saunders, had been notified several months earlier that her home, valued at two million dollars, was in danger of being foreclosed because she owed New York City (the “City”) $3,792 in unpaid water charges. Her son had already paid the water bill, but when he contacted the water department, he discovered that …


Historic Preservation: Launched From Grand Central Terminal, But Derailing, Kraz Greinetz May 2023

Historic Preservation: Launched From Grand Central Terminal, But Derailing, Kraz Greinetz

Duke Journal of Constitutional Law & Public Policy Sidebar

In Penn Central Transportation Co. v. City of New York, the Supreme Court authorized the practice of historic preservation. Ruling that when a city designates a building as "historic" and therefore restricting its development, it is not a "taking" of private property that requires just compensation under the Fifth Amendment. Since that time, historic preservation has proliferated in America's cities. But it's time for another look. Since Penn Central was decided, the facts and law of property regulation in the United States have changed. And the decision, which was wrong from an originalist perspective when it was decided, has …


Property And The Right To Enter, Bethany R. Berger Apr 2023

Property And The Right To Enter, Bethany R. Berger

Washington and Lee Law Review

On June 23, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, holding that laws that authorize entry to land are takings without regard to duration, impact, or the public interest. The decision runs roughshod over precedent, but it does something more. It undermines the important place of rights to enter in preserving the virtues of property itself. This Article examines rights to enter as a matter of theory, tradition, and constitutional law, arguing that the law has always recognized their essential role. Throughout history, moreover, expansions of legal exclusion have often reflected unjust domination antithetical to property norms. …


What's Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris Jan 2023

What's Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris

Faculty Publications

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so. In 2021, the Court held that a California law allowing access by union organizers to enter private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on …


Takings Federalization, Gerald S. Dickinson Jan 2023

Takings Federalization, Gerald S. Dickinson

Articles

Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …


On The Rightful Deprivation Of Rights, Frederick Schauer Dec 2022

On The Rightful Deprivation Of Rights, Frederick Schauer

Notre Dame Law Review

When people are deprived of their property rights so that the state can build a highway, a school, or a hospital, they are typically compensated through what is commonly referred to as “takings” doctrine. But when people are deprived of their free speech rights because of a clear and present danger, or deprived of their equal protection, due process, or free exercise rights because of a “compelling” governmental interest, they typically get nothing. Why this is so, and whether it should be so, is the puzzle that motivates this Article. Drawing on the philosophical literature on conflicts of rights and …


Let The Exceptions Do The Work: How Florida Should Approach Environmental Regulation After Cedar Point Nursery V. Hassid, Olivia Johnson Nov 2022

Let The Exceptions Do The Work: How Florida Should Approach Environmental Regulation After Cedar Point Nursery V. Hassid, Olivia Johnson

University of Miami Law Review

For nearly fifty years, courts distinguished between per se physical takings and regulatory takings. Yet, in 2021, the Supreme Court signaled a change of course with the monumental Cedar Point Nursery v. Hassid decision. The ruling challenges the government’s ability to mandate anything that impacts private property. In the face of environmental catastrophe and increasing pressure to assuage our climate crisis, how can governments respond without triggering a takings challenge?
Chief Justice Roberts in his majority decision may have left the door cracked open for governments to work around the Cedar Point Nursery ruling. By looking at the legacy of …


An Appeal To Heaven—The Timeless Plea For Nollan/Dolan Extension To The Sphere Of Legislative Exactions, Sam Sturgis Oct 2022

An Appeal To Heaven—The Timeless Plea For Nollan/Dolan Extension To The Sphere Of Legislative Exactions, Sam Sturgis

Mississippi College Law Review

“. . . [W]henever the legislators endeavour to take away and destroy the property of the people . . . they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience . . . .”1

In 1772, the colonists of Weare, New Hampshire, were given a choice: cede all white pine trees grown on their lands to the King of England or pay a hefty fine. It was an odious decree—one that struck at the very ideal of the American colonies. Imbued as they were with a sense of divine right to …


Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana Aug 2022

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …


Does The Constitution Allow Private Companies To Use Eminent Domain Against A State? Penn East Pipeline Co., Llc V. New Jersey, Crystal J. Anthony Jul 2022

Does The Constitution Allow Private Companies To Use Eminent Domain Against A State? Penn East Pipeline Co., Llc V. New Jersey, Crystal J. Anthony

Ocean and Coastal Law Journal

In 2021 the United States Supreme Court decided in the case PennEast Pipeline Co. v. New Jersey that Section 717(h) of the Natural Gas Act authorized the Federal Energy Regulatory Commission (FERC) to delegate the government’s eminent domain power to private companies. The Court’s decision allows a private company to condemn all “necessary rights-of-way,” whether privately-owned or state-owned land. This case note explores the history of the government’s eminent domain power and the states’ Eleventh Amendment immunity from lawsuits. The majority opinion in PennEast reasoned that the states waived their sovereign immunity at the ratification of the Constitution. Thus, according …


Game Of Thrones: Liberty & Eminent Domain, Mitchell F. Crusto Jun 2022

Game Of Thrones: Liberty & Eminent Domain, Mitchell F. Crusto

University of Miami Law Review

This Article analyzes the relationship between private property and the government’s power to expropriate it. When it comes to protecting private property from governmental expropriation, our Constitution is conflicted. On the one hand, the right to private property is a foundational principle that defines the American spirit, our history, and our culture. Yet, on the other hand, the Founders adopted the government’s superior authority over private property, that is, eminent domain, for public purpose and with just compensation, via the Takings Clause of the Fifth Amendment. This “private property conundrum” requires us to explore the limits of eminent domain relative …


The Takings Clause Confronts The Police Power: How The Constitution’S Well-Known Protection Failed To Protect Jobs, Businesses, And The Broader Economy In The Name Of Covid-19, Ryan E. Cox May 2022

The Takings Clause Confronts The Police Power: How The Constitution’S Well-Known Protection Failed To Protect Jobs, Businesses, And The Broader Economy In The Name Of Covid-19, Ryan E. Cox

Lincoln Memorial University Law Review Archive

“This note, completed in the midst of the COVID-19 Pandemic, recounts the emergency orders issued by various levels of government in Tennessee and explains how those orders interplay with the Takings Clause of the Fifth Amendment to the United States Constitution. As the note explains in great detail, the limitations imposed on government by way of the Takings Clause, a well-known rule that essentially requires the government to pay citizens for property it takes, are thwarted by state governments’ police powers. Analogizing the COVID-19 Pandemic to a disease that kills apple trees, the note explains how the government can take …


Federal Courts And Takings Litigation, Ann Woolhandler, Julia D. Mahoney Apr 2022

Federal Courts And Takings Litigation, Ann Woolhandler, Julia D. Mahoney

Notre Dame Law Review

This Article first gives an overview of the role of the federal courts in takings claims over time, with a view to providing a more complete picture than that supplied by focusing either on the Lochner/New Deal-era dichotomy or on the advent of the 1871 Civil Rights Act (current § 1983). It traces the fairly robust role of the federal courts in protecting property under a nonconfiscation norm both before and during the Lochner era. It also points out that the legislative history of the 1871 Civil Rights Act does not support a firm conclusion that Congress intended takings …


Right Of Self, Mitchell F. Crusto Apr 2022

Right Of Self, Mitchell F. Crusto

Washington and Lee Law Review

The exercise of free will against tyranny is the single principle that defines the American spirit, our history, and our culture. From the American Revolution through the Civil War, the two World Wars, the Civil Rights Movement, and up to today, Americans have embraced the fundamental rights of the individual against wrongful governmental intrusion. This is reflected in our foundational principles, including the Magna Carta, the Bill of Rights to the United States Constitution, the Reconstruction Amendments, the Nineteenth Amendment, and, more recently, in the Supreme Court’s recognition of fundamental individual rights within the Constitution’s penumbras. However, there is no …


State Rejection Of Federal Law, Thomas B. Bennett Jan 2022

State Rejection Of Federal Law, Thomas B. Bennett

Faculty Publications

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …


Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner Jul 2021

Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner

Journal of Food Law & Policy

Under their police power, governments regulate nuisances and take actions in emergency situations. For protecting humans, animals, and plants from diseases and other pests (jointly referred to as diseases), governments order inoculations, quarantine items and people, and seize and destroy property.' With respect to plants and animals, the United States Secretary of Agriculture is authorized to prohibit the importation and movement of items than may be infested. The Secretary also has the authority to hold, treat, and destroy items to prevent the dissemination of plant and animal pests. State governments take additional actions to


The Dawn Of A Judicial Takings Doctrine: Stop The Beach Renourishment, Inc. V. Florida Department Of Environmental Protection, Brendan Mackesey Jun 2021

The Dawn Of A Judicial Takings Doctrine: Stop The Beach Renourishment, Inc. V. Florida Department Of Environmental Protection, Brendan Mackesey

University of Miami Law Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), the U.S. Supreme Court granted certiorari to determine whether the Florida Supreme Court had violated a group of littoral property owners’ Fifth Amendment rights—or committed a “judicial taking”—by upholding the state of Florida’s Beach and Shore Preservation Act. Under the Act, the State is entitled to ownership of previously submerged land it restores as beach; this is true even though the normal private/state property line, the mean-high water line, is moved seaward, and the affected littoral owner(s) lose their right to have their property …


The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill Apr 2021

The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill

Notre Dame Law Review

The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property? The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis …


Property Convergence In Takings Law, Maureen E. Brady Mar 2021

Property Convergence In Takings Law, Maureen E. Brady

Pepperdine Law Review

Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations—for example, environmental regulations—certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property’s use and enjoyment. This feature of property …


Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney Mar 2021

Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …


Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli Jan 2021

Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli

All Faculty Scholarship

Civil asset forfeiture has strayed far from its intended purpose. Designed to give law enforcement powerful tools to combat maritime offenses and criminal enterprises, forfeiture laws are now used to prey upon innocent motorists and lawful homeowners who are never charged with crimes. Their only sins are that they are carrying legal tender while driving on busy highways or providing shelter in their homes to adult children and grandchildren who allegedly sold small amounts of low-level drugs. Civil forfeiture abuses are commonplace throughout the country with some police even armed with legal waivers for property owners to sign on the …


Economic Liberty Takings, Jeffrey Manns Jan 2021

Economic Liberty Takings, Jeffrey Manns

GW Law Faculty Publications & Other Works

State governors rediscovered the sweeping contours of their police powers in imposing recurring waves of COVID-19 pandemic shutdowns. However necessary shutdowns have been to slow down the spread of COVID-19, state governors’ actions have exposed how takings law has become all but toothless in compensating business owners from state-imposed shutdowns. The result has been state governors picking economic winners and losers. Stores and sectors that state governors designated as “essential” have remained continuously open and received windfalls of pandemic profits. In contrast, businesses that state governors deemed “non-essential” have been stripped of their ability to function for months at a …


The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley May 2020

The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley

Loyola of Los Angeles Law Review

Many people are unaware of a federal copyright statute that requires owners of material published in the United States to furnish the federal government with two copies of each item published. Section 407(a) of the Copyright Act of 1976 (17 U.S.C. § 407) states that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication—(1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with …


Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy Apr 2020

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …


Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy Apr 2020

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …


Crystal Gazing: Foretelling The Next Decade In Oil And Gas Law, Joseph A. Schremmer Jan 2020

Crystal Gazing: Foretelling The Next Decade In Oil And Gas Law, Joseph A. Schremmer

Faculty Scholarship

This chapter attempts to predict the major issues oil and gas law will encounter in the 2020s. Yet even before the first draft could be completed, the industry landscape changed unexpectedly. As this chapter goes to press, the global and domestic economies are just starting to emerge from a sharp downturn brought on by the outbreak of COVID-19. Oil and natural gas prices collapsed to levels not seen in decades. Against this unforeseen backdrop, the legal changes facing oil and gas development in the United States look somewhat different. But one element of our new reality is consistent with this …