Saturday, April 27, 2013
Day two of ALPS is starting off with a bang. It was pretty hard to choose among panels this morning, but I just can't resist a discussion of takings.
Steve Eagle of George Mason presented The Ptolemaic Evolution of Penn Central. I loved his likening of Penn Central and its progeny to Ptolemy's increasingly complicated theories to explain retrograde planets orbiting the Earth. He demonstrated that the Penn Central test is more complicated than most people describe it. He argues that it should be considered a 4-factor test. He plans two papers on this subject.
Alex Klass of Minnesota presented Takings and Transmission. She examined the eminent domain authority being exercised by private utilities, particularly for expansion of wind energy and the associated transmission lines. This talk is based on a paper forthcoming in North Carolina Law Review.
Sally Richardson of Tulane presented Adverse Possession, an Ex-Ante Perspective. Sally began by remarking that it is a right of passage for property professors to write about Adverse Possession because frankly it is just such a weird and fascinating doctrine where we let "wrongdoers" win. While most writings seek to justify Adverse Possession, she questions the possession requirement of adverse possession and suggests allowing people to register their intent to adversely possession a piece of property. This is an early work in progress that promises to be a fun read.
Chris Serkin of Brooklyn (soon to be Vanderbilt) presented Passive Takings: Government Inaction and the Duty to Protect Property. The title should be enough to peak your interest. In this early work in progress, he suggests that where the state has a duty to act it can't avoid takings litigation by failing to act. This is of course interesting in the context of climate change. Governments at all level have expressed hesitation about enacting climate change adaptation policies for fear of takings claims. Chris argues that in some cases, the governments' decision not to take action should be equally subject to scrutiny.