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Thursday, March 12, 2009

Fed Cir Decision in Rose Acre Farms

The Federal Circuit issued a decision in the long-running Rose Acre Farms case.  Here are the first paragraphs:

In 1992, Rose Acre Farms, Inc. (“Rose Acre”) filed the present action in the United States Court of Federal Claims, claiming that United States Department of Agriculture (“USDA” or “the government”) regulations that restricted egg sales from its farms and caused the loss of egg-laying chickens that tested positive for the presence of salmonella bacteria effected a taking requiring compensation under the Fifth Amendment. In 2003, the trial court held that Rose Acre was entitled to compensation for a taking of the eggs affected by the regulations as well as for hens seized for testing.

In our previous appeal, we held that the court misapplied the standards governing regulatory takings claims under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). We vacated and remanded for appropriate reconsideration.  We must again decide whether the trial court correctly held that the government’s regulations, which restricted the sale of certain of Rose Acre’s eggs during the approximately two-year period, constituted a taking for which just compensation is due. As explained below, we hold that, upon a proper assessment of the Penn Central factors, the USDA did not commit a compensable taking. We therefore reverse the judgment of the Court of Federal Claims.

I need to spend more time with the opinion, but I think I disagree with the Court's discussion of the impact of Lingle on the character of the government act prong of the Penn Central test.  In any event, a very interesting opinion that really engages in Lingle's impact on takings law.

Ben Barros

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March 12, 2009 in Recent Cases, Takings | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 11, 2009

Blight and Foreclosures

This past weekend's NY Times Magazine had a great story about Cleveland's attempts to deal with the foreclosure crisis.  On a related point, Slate has a slideshow on abandoned housing.  The slideshow focuses on abandoned houses that are next to inhabited houses, and provides an illustration of how blight spreads through a community.

Ben Barros

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March 11, 2009 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Circo on Sustainability and Property

Carl Circo (Arkansas) has posted Does Sustainability Require a New Theory of Property Rights? on SSRN.  Here's the abstract:

By demanding stewardship of natural capital over exploitation, sustainability envisions a property regime less committed to individual property rights than are the traditional and economic theories of property. While the traditional property theories of Blackstone, Locke, and U.S. constitutional doctrine tolerate restrictions on private property rights for the sake of public welfare, they resist the strongest versions of sustainability, which promote generational and social justice. Similarly, an economic analysis of property recognizes the values of resource conservation and welfare for future generations, but only to the limited extent the economist can calculate future value. As a result, economic analysis may overlook or undervalue the interests of remote generations. Moreover, the goal of a more egalitarian distribution of resources, which informs the social justice model of sustainability theory, runs counter to the dominant economic analysis of property. Only relational principles at the fringes of property theory in the United States can fully embrace the strongest versions of sustainability. Thus, absent an unlikely theoretical revolution in the U.S., the sustainable development agenda cannot succeed in this country at the level required by the international community.

Ben Barros

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March 11, 2009 in Land Use, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Stenseth on Property Theory

Geir Stenseth (University of Oslo) has posted Current Empirical Premises to the Disclosure of the Secrets of Property in Law: A Foundation and a Guideline for Future Research on SSRN.  Here's the abstract:

This article presents an empirical legal study in the field of property theory. I take as my point of departure the perspective of exclusion. Such a basic perspective falls short, however, when we conceptualize the exceptions from the exclusion rule. In this respect, a diversified set of considerations and concerns claims attention, including the nature of the relationship between the possessor and the object in question. This research digs into the new achievements in the fields of economics and life sciences, investigating the validity and relevance of arguments which may be derived from the possessor-object dimension. The findings suggest a differentiated view on how people comprehend various situations of possession, and the article proposes a gradual theoretical model for shaping and managing the legal concept of property in this respect. Finally, I indicate some practical legal topics which may take advantage of the model (e.g. the field of expropriation, the problem of whether a possession should be protected by a property rule or by a liability rule, and the problems related to property as a human right).

Ben Barros

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March 11, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 10, 2009

Carpenter from Denver to University of Colorado

PropertyProf Kristen Carpenter is moving from U. Denver to the University of Colorado, Boulder.

Ben Barros

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March 10, 2009 in Teaching | Permalink | Comments (0) | TrackBack (0)