September 15, 2010
Shapiro and Burrus on Judicial Takings and Scalia's Shifting Sands
Ilya Shapiro (Cato) and Trevor Burrus (Cato) have posted Judicial Takings and Scalia's Shifting Sands, forthcoming in the Vermont Law Review, Vol. 35. The abstract:
In this article, we examine the background of the judicial takings doctrine, discuss the Supreme Court’s ruling in Stop the Beach, react to that decision in light of Cato’s amicus brief, and contrast Justice Antonin Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.
September 15, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Eminent Domain, Environmental Law, Federal Government, Judicial Review, Property Rights, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack
August 25, 2010
Fanizzo on Property Management Under the Antiquities ActKelly Y. Fanizzo (Temple) has posted Politics, Persuasion, and Enforcement: Property Management Under the Antiquities Act, from the Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, ENVIRONMENTAL LAW, Volume 40, Issue 3. The abstract:
July 18, 2010
Leshy on a Property Clause for the Twenty-First Century
John D. Leshy (Hastings) has posted A Property Clause for the Twenty-First Century, published in University of Colorado Law Review Vol. 75 (2004). The abstract:
July 13, 2010
Hudson on The Public and Wildlife Trust Doctrines and the Lucas RemandBlake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand, published in
July 13, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Judicial Review, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack
June 24, 2010
NY Court of Appeals decides Columbia U. Eminent Domain case
The New York Court of Appeals today handed down its decision in Kaur v. New York State Urban Development Corp., the challenge to the government's use of eminent domain in conjunction with a Columbia University development project. To almost no one's surprise, the NY high court reversed the Appellate Division'sruling that the taking was unconstitutional. Especially since the Goldstien case (i.e., Atlantic Yards) came out last fall, solidifying the New York approach of Kelo-style deference to governmental assertions of economic development as consonant with the Public Use Clause.
June 24, 2010 in Caselaw, Constitutional Law, Economic Development, Eminent Domain, Judicial Review, New York, Property Rights, Redevelopment, State Government, Takings | Permalink | Comments (0) | TrackBack
June 23, 2010
Institute for Justice on Kelo at Five Years
The Institute for Justice has published a white paper commenting on the fifth anniversary of the Kelo decision: Five Years After Kelo: The Sweeping Backlash Against One of the Supreme Court’s Most-Despised Decisions. The IJ, you may remember, was lead counsel for the homeowner plaintiffs in the case. The paper, of course, expresses IJ's continued opposition to the SCOTUS ruling, but nonetheless seems to strike a cautiously optimistic note regarding eminent domain in the wake of the Kelo backlash. From the intro:
Less than one week after the decision was handed down, the Institute for Justice launched a national campaign called “Hands Off My Home.” IJ was determined to focus the outrage over Kelo and turn it into meaningful reform. In the five years since the decision, there has been an unprecedented backlash against the Kelo ruling in terms of public opinion, citizen activism, legislative changes, state court decisions, and lessons learned from the New London case . . .
There is another paragraph in the conclusion that I find very interesting. Back when Pfizer moved out of its New London facility, I suggested on the New York Times "Room for Debate" Blog that the failure of the New London plan, and the Kelo backlash generally, might work to discourage planners and local governments from pursuing economic development takings (I called the Pfizer/New London debacle "Exhibit A" in the case against eminent domain for comprehensive redevelopment). Ilya Somin, who was involved in the case, and has done the definitive research on the problems and loopholes of the post-Kelo state "reform" legislation, agreed that the backlash was significant but thought I might have been too optimistic about the deterrent effect of the backlash. I agreed that I was in fact expressing an optimistic viewpoint--if I had had to bet money, I probably would have gone with Somin's more realistic prediction. And I still have absolutely no empirical data at hand regarding the rate of economic development takings since Kelo. But the IJ's report seems to indicate that there has been at least a slowdown in litigation on the issue:
The results of the Kelo backlash have been striking. The Institute for Justice used to get continual requests for assistance in fighting eminent domain for private gain. Now, we receive far fewer. Of those, many are defeated by activism in the court of public opinion before they ever reach a court of law. Eminent domain abuse used to be a nationwide epidemic with more than 10,000 instances reported in just one five-year period alone, an epidemic that affected property owners in most states. Now, it is largely a problem confined to certain reform-resistant states, like New York, that refuse to change their laws or listen to their own citizens. The Institute is focusing its efforts in litigation and advocacy in those states.
It was exactly that "court of public opinion" effect that I had in mind. Now of course, a slowdown in litigation requests to IJ doesn't necessarily mean there is less eminent domain out there. And there are two obvious counterarguments: (1) there are fewer requests to IJ because Kelo essentially declared economic development takings to be legal and constitutional, so there may be fewer disputes over such takings when they happen; (2) in the recession, planners and local governments are less eager for purely economic reasons to do New London-style redevelopment projects. And just because there might be less interest-group litigation doesn't mean that the issue has faded as a serious legal and policy matter.
Still, it's an interesting take on the political and policy effects of the Kelo backlash five years after the opinion. Thanks to Brian Erskine for the pointer.
UPDATE: Ilya Somin has his thoughts on Kelo's fifth here.
June 23, 2010 in Caselaw, Economic Development, Eminent Domain, Financial Crisis, Judicial Review, Local Government, Property Rights, Property Theory, Redevelopment, Scholarship, Takings | Permalink | Comments (3) | TrackBack
June 17, 2010
Supreme Court Decides Stop the Beach Renourishment
The big property rights case of the Term has been decided. In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, the Court rejected the judicial takings claim unanimously. The opinion is here: http://www.supremecourt.gov/opinions/09pdf/08-1151.pdf. Justice Scalia wrote the majority opinion, but it is not the opinion of the court on all parts. Justices Kennedy and Breyer wrote separately. We've posted about the case previously here, here, here, and here. For a great analysis of what was at stake in the case, re-read Ben Barros' excellent post from last year.
Also, tons of links (briefs, case history, oral argument, news articles) at the SCOTUS Wiki page for the case.
A quick look seems to indicate that the Justices split (4-4, with J. Stevens taking no part) over the issue of whether there can be such a thing as a judicial taking under the right circumstances. Now, to go read the opinions . . . .
June 17, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Judicial Review, Property Rights, Property Theory, State Government, Supreme Court, Takings | Permalink | Comments (1) | TrackBack
May 09, 2010
Sharma on Rent Control Legislation in India
Sharda Sharma (
April 04, 2010
Sterk on Structural Obstacles to Settlement of Land Use Disputes
Stewart E. Sterk (Cardozo) has posted Structural Obstacles to Settlement of Land Use Disputes, forthcoming in the Boston University Law Review. The abstract:
In many states, legal doctrine discourages settlement of land use litigation by requiring that any settlement undergo the same review process as the decision that led to the litigation in the first place. The problem is exacerbated by broad standing rules that allow a variety of parties to challenge the settlement. As a result, municipalities and developers often have an incentive to litigate to judgment, even though both parties would prefer a negotiated or mediated solution.
On the other hand, permitting developers and municipalities to settle litigation behind closed doors could impair both the quality and the legitimacy of the ultimate land use decisions. Because broad participation in the decisionmaking process operates both to educate decisionmakers and to increase acceptance of adverse decisions, excluding neighbors from the settlement process threatens significant substantive and process values.
Concerns about closed-door decisionmaking, however, do not justify a doctrinal framework that permits collateral challenges to land use settlements. Instead, permitting neighbors to intervene in proceedings between developers and municipalities, and binding neighbors to settlement when they choose not to intervene, better harmonizes the interest in informed and participatory decisionmaking with the cost-saving advantages of negotiated solutions to land use problems.