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Univ. of Kentucky College of Law

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Thursday, January 15, 2009

Fenster on Lingle and the Stubborn Incoherence of Regulatory Takings

Mark Fenster (Florida) has posted The Stubborn Incoherence of Regulatory Takings on SSRN.  Here's the abstract:

Lingle v. Chevron (2005), the Supreme Court's most recent effort to sort the complex federal constitutional regulatory takings doctrine, resulted in what commentators have praised as a relatively unified and coherent "takings jurisprudence" and two-step adjudicatory roadmap for federal and state courts. This article reviews Lingle more than three years after its issuance to see the extent to which the Court succeeded in taming and explaining regulatory takings. It notes Lingle's successes, especially in disentangling the worst confusions regarding the relationship between regulatory takings and the substantive due process and in providing an understandable process by which state and lower federal courts have recently been resolving federal constitutional takings litigation. But Lingle did not -- and, this article argues, could not -- thoroughly disentangle and bring coherence to a doctrine that past cases and current disputes over real property, the environment, and land use planning make stubbornly unresolvable in the abstract. The so-called Penn Central ad hoc balancing test ultimately brings a degree of incoherence to "takings jurisprudence" -- an incoherence that allows courts sufficient room to adjudicate difficult cases and protect the institutional deference that has become central to post-New Deal review of administrative decisionmaking.

Ben Barros

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January 15, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Bird and Oswald on Necessity and Eminent Domina

Robert C. Bird (Univ. of Connecticut - Department of Marketing) and Lynda J. Oswald (Univ. of Michigan - Stephen M. Ross School of Business) have posted Necessity as a Check on State Eminent Domain Power on SSRN.  Here's the abstract:

The Supreme Court decision of Kelo v. City of New London has provoked rigorous debate over the proper discretion given to government entities exercising powers of eminent domain. Rarely discussed is the equally important requirement of necessity. Necessity doctrine requires that a condemnor justify that the proposed taking is reasonably necessary for the stated purpose. Few attorneys and even fewer scholars have discussed the role of necessity doctrine in modern eminent domain practice. This manuscript traces the history and development of necessity, discusses cases where courts have preventing takings for lack of sufficient necessity, and suggests opportunities for practitioners to better challenge proceedings. This manuscript concludes that necessity should be revived from its largely dormant state and can play a meaningful role in curbing the worst excesses of eminent domain.

Ben Barros

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January 15, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Eagle on Property, Planning, and State Power

Steven J. Eagle (George Mason) has posted Reflections on Private Property, Planning, and State Power on SSRN.  Here's the abstract:

This essay, in a journal for professional planners and planning lawyers, proposes that the debate between advocates of private property rights and of expansive government regulation of land use be tempered by recognition that the U.S. Supreme Court's takings jurisprudence has not always been as partisan as often portrayed. The essay discusses land use regulation and the appropriate role of planners, in light of information costs and rent seeking. It discusses the difficulties in fine tuning land use through municipal industrial policy and in providing meaningful post-Kelo scrutiny to municipal condemnations for economic development. The essay concludes by suggesting that, under these circumstances, local regulation to reduce greenhouse gas emissions is not auspicious.

Ben Barros

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January 15, 2009 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2009

Property Section Listserv

Just a reminder that information about joining the AALS Property Section Listserv can be found through this link.

Ben Barros

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January 12, 2009 in Teaching | Permalink | Comments (1) | TrackBack (0)

Property Mid-Year Meeting 2010

I recently learned that the Property Section of the AALS has been approved for a mid-year meeting in 2010.  No date or location has been set.  I'll post more info as I get it.

Ben Barros

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Continue reading

January 12, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)

New AALS Property Section Leadership

Here is the new AALS Section Leadership:

Chair:  Carol Brown, UNC

Chair-Elect:  Kali Murray, Marquette

Secretary:  Nestor Davidson, Colorado

Executive Committee Members:  John Fee, BYU; Shelley Saxer, Pepperdine; Steve Eagle, GMU

Ben Barros

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January 12, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)

Back from AALS

Thanks to all of you who attended the various property programs at AALS in San Diego.  It was great to see so many blog readers in person.

Ben Barros

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January 12, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)