inversecondemnation.com

Eminent Domain And Condemnation Law Conference (Honolulu, Aug. 21, 2013)

Mark your calendars: on August 21, 2013, The Seminar Group is putting on the 2d Annual Eminent Domain and Condemnation Law Conference, in Honolulu (Hilton Waikiki Beach). Our Damon Key partner Mark M. Murakami is the Planning Chair, and the rest of the faculty is pretty good, too. 

We'll be speaking at two of the sessions: "Honolulu Rail Litigation Update – EIS and Acquisitions," and "The Evolving Process of Eminent Domain – Condemnation Update; Recent Court Decisions of Interest."

These topics will also be covered:

• Contractor Licensing Update
• Planning Update – Development Near the Right of Way
• Uniform Relocation Act Benefits
• Rail Development and Property Valuation
• Ethics in Eminent Domain: Obligations of Condemnor’s and Condemnee’s Counsel

More information here. Download the brochure here, or below.

Hope you can join us for another great program.

2d Annual Eminent Domain & Condemnation in Hawaii - Aug 21, 2013 - Honolulu - The Seminar Group

Audio Of HSBA Appellate Section CLE On Amicus Briefing

Earlier this week, I spoke to the Hawaii State Bar Association's Appellate Law Section about amicus briefing, along with Daniel Gluck, Senior Staff Attorney at ACLU Hawaii.

I appeared by videoconference, and we were able to record my remarks. The handout and links I mention are posted here.

Stream it here:

HSBA-appellate-amicus-briefing-thomas-5-2013

Or download it here (right-click, "save as" - 27 minutes, 12mb mp3)

Materials And Links From Today's HSBA Appellate Section CLE On Amicus Briefing

Here is the handout (2 pages) from today's CLE program on Amicus Briefing, sponsored by the Hawaii State Bar Association's Appellate Law Section.

Links to the briefs mentioned are also posted here.

Update: here's the audio of my remarks.

Amicus Briefing - Hawaii State Bar Association, Appellate Law Section - CLE 5-20-2013

HSBA Appellate Section: Amicus Briefing

On Monday, May 20, 2013, I'll be speaking at the Hawaii State Bar Association's Appellate Law Section's monthly meeting, on "Amicus Briefing."

Sorry for the short notice, but I am a last-minute substitution since one of the original panelists, retired Hawaii Supreme Court Justice Steven Levinson, is under the weather and cannot attend. The other panelist is Daniel Gluck, a Senior Staff Attorney with ACLU Hawaii. Should be a fun and interesting discussion.

In my portion of the program, I'll be discussing the how's and why's, the do's and don't's of amicus participation in state and federal courts, with an emphasis on U.S. and Hawaii Supreme Court practice. We'll also be entertaining questions from the audience.

Because this is a late-hour pinch hit and I am on the road, I'll be appearing by video conference. Should make it even more interesting. For those of you who cannot attend in-person at the HSBA downtown Honolulu offices, we'll be using Gotomeeting, so maybe you can join in that way. Contact Appellate Law Section Chair Rebecca Copeland for more.

ABA Spring Conference: Public Use And Regulatory Takings Updates

We just wrapped up the spring meeting of the ABA's Section of State and Local Government Law in Nashville, which included our presentation of two updates, one on the latest in public use in eminent domain, the other on regulatory takings.

Here are the draft papers presented:

• Recent Developments in Eminent Domain: Public Use (coauthored with Mark Murakami and Bethany Ace)

• Recent Developments in Regulatory Takings

For those of you who attended, you already have these articles in your materials.

Materials From Today's Virginia Eminent Domain Conference

For those of you attending the Virginia Eminent Domain Conference, here's the expanded papers on "Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings" and Public Use issues.

Use the password provided at the conference to open the pdf's. It's the same p/w for both. If you forgot the password, email me.

• Regulatory Takings

• Public Use

For those who did not attend, sorry folks, there are some benefits to coming to a conference! Y'all are going to have to wait for a bit -- after a decent interval to allow the attendees to get their money's worth, we'll remove the password.

For more about the cases and books we discussed yesterday during my presentation on "Virginia's Place in National Eminent Domain Trends, check these out:

• More about Crenshaw v. Slate River Co., 27 Va. 245 (1828).

• Arlington National Cemetery and the Takings Clause.

• Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (private takings, Public Use Clause).

• Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) (gas station rent control, and the demise of the "substantially advance" test as a takings test).

• Kaiser Aetna v. United States, 444 U.S. 164 (1979) (navigable waters, regulatory takings).

• Livingston v. Virginia Dep’t of Transportation, 726 S.E.2d 264 (Va. 2012) (flooding and taking liability).

• James Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (1998) (read this book!).

 

7th Annual Virginia Eminent Domain Conference (April 25-26, 2013)

Those of you on the east coast (or, who wouldn't mind a visit to a very beautiful part of Virginia), mark your calendars: on April 25 and 26, 2013, CLE International is presenting the 7th Annual Virginia Eminent Domain Conference - Local, State, and National Trends at the Tides Inn in Irvington, Virginia.

My Owner's Counsel of America colleague Joe Waldo, the Planning Chair for the conference, has kindly asked me to deliver the Keynote Presentation to speak about "Virginia’s Place in National Eminent Domain Trends." The following day, I'll also be presenting a one-hour session on "Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings" featuring the latest updates in those areas.

Joe and colleagues have assembled a talented and varied faculty, so please join us for two days worth of great CLE. Download the full brochure or the short version postcard, or, for complete information, including the agenda and on-line registration, here.

Hope to see you there.

7th Annual Conference - Virginia Eminent Domain - Local, State & National Trends (Apr. 26-26, 2013)

Postcard - 7th Annual Conference - Virginia Eminent Domain - Local, State & National Trends (Apr. 26-26, 2013)

Podcast And Video: The PLDC And Property Rights In Hawaii - A Panel Discussion

(We're not sure who captured and posted the above video -- wasn't us -- but to whomever did so, thank you.)

Earlier this week, our colleague Mark M. Murakami spoke at the University of Hawaii Law School on a panel about "The PLDC and Property Rights in Hawaii." PLDC refers to the Public Land Development Corporation, a state agency created in 2011 to develop state-owned lands, primarily in concert with private entities. Since its formation, the PLDC has become highly controversial, and the Hawaii Senate recently voted to repeal it.

Joining Mark on the panel were Professor Shelley Saxer (Pepperdine); Marti Townsend, Executive Director of the Outdoor Circle; and Chris Lee, State House of Representatives member.

In the event you don't want to view the entire session, we've put Mark's remarks and his responses to audience questions in a separate (high-quality) audio file, which you can steam or download here (59 minute/28mb mp3): 

The PLDC and Property Rights in Hawaii 2-26-2013

To save on your local drive, right click on the above and choose "Save link as" or similar.

Links And Materials From Today's ABA Takings Teleconference

Here are the links to the materials and briefs from the Supreme Court's three taking cases which we are discussing at today's teleconference sponsored by the ABA's Section on Litigation's Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee. 

Post-telecon note: thanks to everyone for joining us. I will be posting up the briefs in the Big Oak case now pending in the Court of Federal Claims that Rob Meltz mentioned in his "what's next" talk about Arkansas Game. Update: here are the Big Oak briefs.

Still Time To Join Us Tomorrow For ABA Takings Roundable (Free!)

Did we say free? (If you are an ABA member, that is.)

Join us for a teleconference jointly sponsored by the ABA's Section on Litigation's Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee to discuss the latest and greatest in takings law, specifically the three cases the U.S. Supreme Court is ruling on this Term.

Moderated by Dwight Merriam (Robinson & Cole, Hartford), panelists include me, Amy Bourlris (Gunster, Yoakley & Stewart, Miami, Professor Steven Eagle (George Mason School of Law, Arlington), and Robert Meltz (Attorney-Adviser, American Law Division, Congressional Research Service, Adjunct Professor of Law, Georgetown Law, Washington)

Date: Tuesday, February 26, 2013

Time: Noon - 1:00 p.m. Eastern Time

Register here.

More information here. See you there. Come with your questions or comments.

Portland: Planning Utopia Or Hipster Paradise?

Having recently attended the 7th International Conference of the Academic Association on Planning, Law, and Property Rights in Portland, Oregon, we offer this irreverent view of that city's culture, "Insufferable Portland," by Mark Hemingway at the Weekly Standard. The landscape he portrays should be familiar to anyone who knows Portland, Berkeley, the Upper West Side, Santa Monica, Boulder, Chapel Hill, or Ann Arbor. Some highlights:

Case in point: One of the most commented-on sketches from the show [Portlandia] is a scene from the first episode in which Armisen and Brownstein are sitting in a restaurant. After asking their waitress a series of absurd questions about whether the chicken they are about to eat is local​—​"the chicken is a heritage breed, woodland raised chicken that’s been fed a diet of sheep’s milk, soy, and hazelnuts. .  .  . His name was Colin, here are his papers"​—​the couple ends up leaving the restaurant and driving to the farm to see the environment where the chicken was raised in order to assuage their guilt about eating it.

Hemingway's piece is not limited to skewering Portland's culture, but includes a look at the city's (and the state's) vaunted land use planning:

Things began to unravel in 1973, when the Oregon legislature required cities in the state to set development boundaries with the goal of preserving farmland from "leapfrog development"​—​that is, new subdivisions not adjacent to established developments. Portland became the first major city with an "urban growth boundary."

This fact opened up a world of possibilities that are still being inflicted upon us. "Urban planners have long believed in a land-use-transportation connection that would allow them to manipulate one through the other," writes Cato Institute senior fellow Randal O’Toole in a damning policy paper on the failure of Portland’s growth policies. "So Portland plans land uses to try to reduce the amount of driving people do while it plans transportation to try to slow the conversion of rural land to urban purposes."

In the same vein, at the conference, John Charles from the Cascade Policy Institute gave an eye-opening presentation on "Transit-Oriented Development as a Growth Management Tool in Portland: Comparing the Vision with Reality," about whether TOD has lived up to its promise. We won't attempt to paraphrase his findings, but let's just say that in some cases it has not, and "TOD" and "smart growth" are not the be-all-end-all solution to traffic and population issues.

For a view less tongue-in-cheek's than Hemingway's of Oregon's land use planning program, see The Quiet Revolution Goes West: The Oregon Planning Program 1961-2011, 45 John Marshall L. Rev. 357 (2012), authored by our ABA colleague Edward Sullivan.

Upcoming Event: The PLDC and Property Rights in Hawaii

On Tuesday, February 26, 2013 from 7:15 - 8:309 p.m. in Classroom #2, the University of Hawaii Law School is sponsoring a talk about "The PLDC and Property Rights in Hawaii," which will feature our Damon Key colleague Mark M. Murakami.

PLDC refers to the Public Land Development Corporation, a state agency created in 2011 to develop state-owned lands, primarily in concert with private entities. As Honolulu Civil Beat's information page on PLDC notes:

The corporation has broad powers for entering into private partnerships and establishing its own governing objectives and policies. It also is tasked with identifying state lands under DLNR that are suitable for development. The Board of Land and Natural Resources must approve all land transfers.

The corporation, with the approval of the governor, can also issue revenue bonds for constructing, acquiring and renovating public facilities, as well as for the acquisition of non-public lands.

Since its formation, the PLDC has become highly controversial, and the Hawaii Senate recently voted to repeal it. We moderated a panel on the issue at the Hawaii Land Use Conference in January, so the U.H. program will be a good update. 

The panel will discuss three issues: the different perspectives on the PLDC issue itself, how the controversy over the PLDC reflects the tensions underlying the property rights regime in Hawaii, and (in an unrelated but pressing subject for law students) the speakers' views on how to thrive in law school and the legal job opportunities after graduation.

Joining Mark on the panel are Professor Shelley Saxer (Pepperdine); Marti Townsend, Executive Director of the Outdoor Circle; and Chris Lee, State House of Representatives member.

For more details on how to attend download the flyer, contact Mark, or RSVP here.

Public Land Development Corporation and Property Law in Hawaii 

PLF's Jim Burling To Discuss Property Rights And The Environment At U.H. Law School

Mark your calendars: on Thursday, February 21, 2013, James Burling, director of the Pacific Legal Foundation and principal attorney at PLF's Property Rights practice group and U. Hawaii lawprof Maxine Burkett will discuss "Do Property Rights Matter When The Environment Is Going To Hell In A Handbasket?"

The forum -- presented by the Environmental Law Program and the Federalist Society -- will begin at 12:15 p.m. in CR1. Light refreshments will be served. Please RSVP to elp@hawaii.edu.

More below.

Do Property Rights Matter When the Environment is Going to Hell in a Handbasket?

ABA Takings Roundtable - The U.S. Supreme Court Property Rights Cases - Feb. 26, 2013

If you are a member of the ABA, mark your calendars for Tuesday, February 26, 2013, noon to 1:00 p.m. Eastern Time, for a free teleconference jointly sponsored by the ABA's Section on Litigation's Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee to discuss the latest and greatest in takings law, specifically the three cases the U.S. Supreme Court is ruling on this Term.

Here's the description:

For the first time since 2005, the U.S. Supreme Court has three property rights cases on its docket. One of them, Arkansas Game & Fish, regarding compensation for flooding, was decided in December.  Another, Koontz, concerning the applicability of the Nollan and Dolan nexus tests, has been argued. The final case, Horne, a most unusual case about what might be described as raisin sequestration, is still on the sidelines.

An expert panel -- two practitioners, a federal researcher, and a law professor, all extraordinarily conversant in the three cases -- will discuss what the claims are all about, the outcome of the case already decided and the probable outcomes in the two remaining cases, and what all lawyers who deal with any matters that may affect property rights need to know about them.

This will be a not-to-miss, lively discussion that will not only get you up to speed, but put you out ahead of others when it comes to this especially important term.

More information, including on-line registration, here. The panel will be moderated by Dwight Merriam (Robinson & Cole, Hartford), and includes:

Amy Bourlris (Gunster, Yoakley & Stewart, Miami)

Professor Steven Eagle (George Mason School of Law, Arlington)

Robert Meltz (Attorney-Adviser, American Law Division, Congressional Research Service, Adjunct Professor of Law, Georgetown Law, Washington)

I'm the fourth speaker, and hope you can join us.

Upcoming TeleBriefing On Takings Issues After Arkansas Game & Fish

Mark your calendars for next Friday, January 25, 2013 from noon to 1:00 p.m. Pacific for "Arkansas Game & Fish Commission v. United States: Practical Implications Of The Supreme Court's Decision," presented by Law Seminars International.

It's a discussion of Arkansas Game, the decision in which the Supreme Court held that the federal government was not immune from liability for a taking when it was responsible for flooding, even if the flooding is temporary. They've assembled a great faculty, which includes arguing counsel for the prevailing petitioner James Goodhart. Also speaking will be takings litigator Nancie Marzulla and Washington Legal Foundation Chief Counsel Richard Samp. Here's a description of the one-hour program:

On December 4, 2012, the U.S. Supreme Court issued a unanimous opinion in Arkansas Game & Fish Commission v. United States, holding that when the federal government floods property, even temporarily, the Fifth Amendment may require the government to pay just compensation to the landowner.

The Court's decision eliminates a carve-out from takings liability for government actions resulting in episodic or temporary flooding of land: "No decision of [the Supreme Court] authorizes a blanket temporary-flooding exception" to takings jurisprudence. This means that landowners are now eligible to establish that their land has been inversely condemned by government actions resulting in temporary flooding, under the same standards as any other takings plaintiff.

Consequently, water management actions that could result in flooding should be carefully scrutinized to take preventative steps to avoid flooding and reduce potential takings liability. Likewise, attorneys whose clients experience episodic or periodic flooding of their land should carefully evaluate whether a takings claim is a possibility.

In this one-hour TeleBriefing, three experienced litigators -- including the attorney who argued in the Supreme Court for the Arkansas Game & Fish Commission -- will discuss how this case changes the rules for inverse condemnations involving flooding.

More information, including registration here. With a relatively modest registration fee, this is a great deal to hear the thoughts of some very high-level thinkers in our area of law.

Free Teleseminar: Property Rights After Natural Disasters

Join us on Friday, January 11, 2013 at 1:30 p.m. Eastern (12:30 CT, 11:30 a.m. MT, 10:30 a.m. PT, 7:30 a.m. HT) for "Thinking Out Loud - Property Rights After Natural Disasters," a free teleconference presented by the Condemnation Zoning and Land Use Committee of the ABA's Litigation Section. There's no cost to register, and you do not need to be an ABA or Litigation Section member to participate.

Here's the program description:

Over one-half of the people in the United States live within 50 miles of the coastline. Hurricanes and similar types of natural disasters have caused billions of dollars in damage in recent years, particularly in coastal communities, and some scientists warn that global warming and rising sea levels will increase the frequency or severity of these types of natural disasters. Private property rights in the wake of natural disasters are an important issue not only to property owners, but also to their lenders and to the recovery and viability of the region in the wake of natural disaster.

We have assembled a geographically diverse group of property rights attorneys from coastal communities to discuss their experiences with property rights in the aftermath of natural disasters.

The moderator will be Mark M. Murakami of the Damon Key firm in Honolulu. From New Jersey, we have invited Anthony Della Pelle and Tom Olson of the McKirdy & Riskin firm. Ed Thomas of the National Hazard Mitigation Association is invited as is Robert H. Thomas of inversecondemnation.com. Geographically rounding out the panel will be Casey Pipes of the Helmsing, Leach law firm in Mobile, Alabama.

This program is part of the ABA Section of Litigation’s Roundtable series. More information and registration (free) here.

To submit questions in advance, email Mark Murakami at mmm@hawaiilawyer.com. Please note, Roundtable programs are not eligible for CLE credits. Also, space is limited, so register now to reserve your spot.

Come, join us.

Upcoming ALI-CLE Eminent Domain Conferences

It's time for the annual ALI-CLE (fka ALI-ABA) eminent domain conferences, to be held January 24-26, 2013 in Miami Beach, Florida.

In the "advanced" course, Eminent Domain and Land Valuation Litigation, we'll be covering topics such as "Condemning Underwater Mortgages," "An Engineer's Role in Damage," "How To Develop and Implement a Business Plan for an Eminent Domain Practice," and "Condemnor Beware: What Activities Will Make You Liable for Pre-Condemnation Damages." Along with Pacific Legal Foundation's Jim Burling and Cornell lawprof Robert Hockett, I'll be speaking on the panel about underwater mortgages. More details on the agenda and the faculty here.

The companion course, Condemnation 101: How to Prepare an Eminent Domain Case, covers the basics of eminent domain law, and although designed as an overview of condemnation law for the beginner or general practitioner, it's a great refresher course for the seasoned eminent domain lawyer. More details here.

These are the premiere conferences about eminent domain and condemnation law, and a great chance to learn a lot, meet your colleagues from across the nation, and depending on where you are coming from, escape winter's chill. Hope you can join us.

Mark Your Calendars: 10th Hawaii Land Use Law Conference (Jan. 17-18, 2013)

It's back! Time once again for the bi-annual Hawaii Land Use Law Conference, to be held January 17 and 18, 2013 (Thursday and Friday) at the Downtown YWCA (a very convenient venue).

Planning co-chairs Professor David Callies and Ben Kudo have once again assembled a stellar faculty and put together an agenda that covers most topics of interest.

We'll be moderating a panel on "Development Through Exemptions - The Evolution of Reclassifications, Permitting, Land Use & Development in Hawaii: The Unintended Consequences of an Increasingly Complex System of Regulations," featuring panelists Linda L.W. Chow (Deputy Attorney General State of Hawaii), Oswald K. Stender (Office of Hawaiian Affairs), and Kali Watson (Hawaiian Community Development).

Two highlights of the conference:

First, Mike Berger will give the keynote presentation on our favorite topic, regulatory takings: "Taking a Critical Look at 30 Years of the Supreme Court’s Taking Jurisprudence." Mike has taken the lead in most of the important Supreme Court takings decisions during that time frame, and his talk will be worth the price of admission alone.

Second (speaking of "worth the price of admission"), our ABA State and Local Government Law Section colleage Dean Patricia Salkin is returning with an ethics program and her rightly famous "Ethics Jeopardy" game show. Get your yearly MCLE credits all at one time and in one place. We say "worth the price of admission" since you can register for the ethics sessions separately from the other parts of the conference if land use isn't your bag. 

Other topics include transit and land use, burial laws, traditional and customary rights, and agricultural land use issues.

Details, including complete faculty list, the agenda, and registration information here.

As Jack Lord used to say "be there, Aloha."

Hawaii Land Use Law Conference (Jan. 17-18, 2013)

Brigham-Kanner Property Rights Conference Write Up

Here's a slideshow and summary of the recent Brigham-Kanner Property Rights Conference, held at the William & Mary Law School in Williamsburg, Virginia.

Professor Ely, You Magnificent Bastard, I Read Your Book!

Here are my remarks from last week's Brigham-Kanner Property Rights Conference at the William & Mary Law School in Williamsburg, Virginia. Our panel spoke on "Property Rights in Times of Economic Crisis," and included lawprofs James W. Ely (Vanderbilt), William Fischel, (Dartmouth), and Eric Kades (William & Mary). See the complete faculty list and agenda here.

+++++++++++++++++++++++++++++++++++++++

Aloha, I bring you greetings from the land of Midkiff, the land of Lingle.

I practice in the jurisdiction that believed it would cure our economic ills to use eminent domain to bust up the legacy land trusts, and make sure that everyone who owns a home could also own the fee simple interest.

Which they may now do, provided they can afford our median price for a single-family residence, $637,000.

I practice in the jurisdiction that believed that it would be a good idea to try and bring down the price of gasoline to consumers -- and who can doubt that this is a desired public good? -- by regulating the rent that company-owned gas stations could charge service station operators.

Which only resulted in the price of gas going up.

So it is appropriate, given my origins, that I've been asked to speak on the topic of "Property Rights in Times of Economic Crises." The Fifth Amendment, after all, is the only provision in the Bill of Rights (joined perhaps by the Excessive Fines Clause) expressly phrased in terms of economic rights: public use of property, and of course, the just compensation requirement, which requires that justice be measured by the amount of money or other compensation an owner is entitled to when her property is taken.

Of course, my glib side wants to say that if we respected property rights more, we'd have economic crises less, and that if you want to understand how to avoid economic hard times, you simply need to read the scholarship of today's panelists and exclaim, to paraphrase General George Patton -- or, more accurately, actor George C. Scott:

"Professor Ely, you magnificent bastard, I read your book!"

But that would be too easy, and I'd be left yielding 12 minutes of my time to my fellow panelists, and perhaps releasing you early for our lunch break. So to fill that time, I'd like to discuss three illustrations of the importance of property rights when times are tight.

First, property rights, almost by definition, protect those who own property, and property rights are viewed as the province of the wealthy and the powerful, who, current theory goes, deserve lesser judicial protection because their wealth and power give them a means to participate in the political process on a "more equal" basis that their less fortunate fellow citizens.

But a recent decision from the Ninth Circuit repudiates that view.

In Lavan v. City of Los Angeles, No.11-56253 (Sep. 5, 2012), a 2-1 decision from a Ninth Circuit panel, two judges viewed as "liberal," including Judge Stephen Reinhardt, the judge who gave us the bizarre economic theory that eventually bore fruit in the Tahoe-Sierra majority (it's OK to wipe out all value temporarily, because the property will "eventually recover its value"), held that the City of Los Angeles could not presume that property owned by homeless people in the Skid Row area was abandoned, and prohibited the City from seizing and destroying it when the owner was "momentarily away" from it.

This being the Ninth Circuit, the majority judges were more comfortable basing the ruling on the Fourth Amendment and not the Fifth. But get a load of this quote:

As we have repeatedly made clear, "[t]he government may not take property like a thief in the night; rather, it must announce its intentions and give the property owner a chance to argue against the taking." Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008). This simple rule holds regardless of whether the property in question is an Escalade or an EDAR [a small, portable shelter provided to homeless people], a Cadillac or a cart. The City demonstrates that it completely misunderstands the role of due process by its contrary suggestion that homeless persons instantly and permanently lose any protected property interest in their possessions by leaving them momentarily unattended in violation of a municipal ordinance. As the district court recognized, the logic of the City’s suggestion would also allow it to seize and destroy cars parked in no-parking zones left momentarily unattended.

Slip op. at 10591.

From this case, I glean the constitutional rule that "one man's junk is another's gold," a rule that undoubtedly has allowed the creators of e-Bay to earn billions, and the producers of reality TV shows to schedule seemingly infinite programming. But all kidding aside, this is a great point by the Ninth Circuit (something I am not able to say with much frequency): if property rights are frequently asserted by those who own lots of property, they surely protect those who have little. Because there, but for the grace of God, go I.

But what about the so-called "one-percent?" Aren't they the ones who assert property rights most frequently? I turn now to the recent proposal that seems to be gaining the most traction in California, for municipal governments to use eminent domain to seize "underwater" but performing mortgages.

Proponents of the scheme argue it will fix the burst bubble and right the housing market, all at little to no cost to the public. Call me a skeptic, but this plan sounds like those from my home jurisdiction that went all farpotshket, a term that our esteemed colleague for whom the Brigham-Kanner prize is named surely recognizes.

But I'm not here today to offer my thoughts on the wisdom of the plan; let's just say I was officially agnostic until I heard the CEO of Mortgage Resolution Partners remark at a recent conference on the topic that eminent domain will have no cost, and as a consequence I am now against it, or at least highly skeptical. A "doubting Thomas" if you will. Eminent domain will have "no cost?" For a scheme that, I think, has not fully thought out whether it will pass muster under even the low Kelo bar or the particulars of California's law of necessity. And the proponents' belief that they have correctly calculated just compensation for the underwater-but-performing mortgages appears overly simplistic and too optimistic to me. If that situation ever develops into litigation, it will be the "one-percenters," not our homeless friends on Skid Row, who will be asserting and defending property rights.

How much sympathy should we have for those lenders and bankers who are supposedly keeping homeowners in economic bondage? Not much, I guess, but my point is that in the context of defending property rights, who cares who is doing the defending, since we all benefit from the result when the courts rule correctly. We speak quite often -- last night's Vice Presidential Debate being the most recent example -- of our overarching desire to protect the "middle class." But because most of the members of this group cannot afford to litigate to defend their property rights, it is left up to either outfits like Pacific Legal Foundation or the Institute for Justice who can litigate a select few cases pro bono, or the property owners who have the staying power to pay their lawyers to defend their rights, to take up the fight.

If they don't do it, property rights lose. To paraphrase Martin Niemöller, if I don't speak up when they come for the lenders and bankers, when they come for me there will be no left to speak up.

Lastly, a quick word about the case the Supreme Court agreed last week to review, Koontz v. St. Johns River Water Management Dist., No. 11-1447 (cert. granted Oct. 5, 2012). The Court has taken up the question of whether the Nollan/Dolan nexus-proportionality tests apply to government demands for cash, as well as land exactions. This case may also settle other issues such as whether compensation is the sole remedy for a regulatory taking, whether substantive due process or takings the vehicle by which to evaluate exactions, and whether money is "property."

And here I offer a prediction. Not what the Court will do (I will let you guess what position the amicus brief we're going to file will be arguing), but rather than because of the economy in which we find ourselves, and the Questions Presented are expressly about money, that the Court will deal with the contrasts I have highlighted today.

Finally, please allow me to wrap up by offering my thanks to the organizers of this program. To a property owners' lawyer, and an admitted property law nerd, to participate in this conference is like a baseball fan being offered the chance for an at-bat at Yankee Stadium in October. In other words, the pinnacle; a chance to rub shoulders, and perhaps share the limelight for a moment, with the Ruths and the Gehrigs in our field of law. Thank you.

2012 Brigham-Kanner Property Rights Conference

There's still time to join us later this week at William & Mary Law School in Williamsburg, Virginia for the 2012 Brigham-Kanner Property Rights Conference, and the award of the B-K Prize to University of Michigan lawprof James Krier for his lifetime contributions to property law scholarship.

The Conference includes a day-long series of discussions on property rights, featuring leading scholars and practitioners. Topics include "The Impact of a Leading Property Scholar," "The Judiciary’s Role in Shaping Constitutionally Protected Property," "Property Rights in Times of Economic Crisis," and "Property’s Moral Dimension." The day will wrap with a roundtable discussion, "How Fundamental are Property Rights?" The complete agenda is available here.

I will be speaking on the panel about "Property Rights in Times of Economic Crisis," discussing why property rights are even more important when times are tight.

Register on-line here. If you can't join us, I will be posting a report and summary.

Ninth Annual Brigham-Kanner Property Rights Conference & Prize (Oct. 11-12, 2012 ), William &...

Upcoming Program - The U.S. Housing Recovery: Lessons From California

In or near Sacramento this week? You may want to attend this free program, sponsored by the American Action Forum:

The American Action Forum will host a panel discussion at the Hyatt Regency in Sacramento on the devastating downturn of the housing market and painful recovery currently facing our nation. There’s no question California's housing markets and greater economy have been among the hardest hit, yet a comeback seems to be underway. What can California's story teach the rest of us? Is using eminent domain really a solution to our housing woes?

Join us for a complimentary breakfast as we hear from an exciting group of experts including Douglas Holtz-Eakin, former Director of the Congressional Budget Office, Daren Blomquist, Vice President of RealtyTrac, Richard Green, Director and Chair of the USC Lusk Center for Real Estate, Jed Kolko, Chief Economist at Trulia, Paul Herrera, Government Affairs and Communications Director, Inland Valley Association of Realtors, David Min, Assistant Professor of Law at the University of California, Irvine, and Gideon Kanner, Professor Emeritus at Loyola Law School.

Both panels will include an audience question and answer session.

One panel will discuss the use of eminent domain as a means to boosting the housing market, while the other will explore long-term solutions to the housing market crisis. See the full agenda and schedule here. Get your free tickets here.

If you can't make it, we're going and will post a report.

Chicago Part II: Land Use Institute

For those of you sticking around Chicago after the ABA Annual Meeting, there's the opportunity for even more land use, zoning, takings, and condemnation programming. ALI-CLE (fka ALI-ABA) is putting on it's annual Land Use Institute later this week. It looks like Planning Co-Chairs Gideon Kanner and Frank Schnidman have put together a wide-ranging agenda, and stellar faculty, as usual. 

Details, including registration information, here.

Summary Of Flood Takings CLE - Lawprofs And Lawyers Discuss Pending SCOTUS Case

This past week was the ABA Annual Meeting in Chicago. These things can often be endurance contests where you're rushing from one meeting to another (is this the Executive Committee meeting or the Council meeting?), and it's often hard to tell the players without a scorecard.

Sprinkled among these unexciting-but-productive sessions are the real meat of the Annual Meeting, the CLE sessions. Some are interesting and fun (but pretty useless as CLE). Others are timely. Some are just plain weird. But never let it be said that the State and Local Government Law Section (the one that we are active in) doesn't put on relevant programming: two of the featured CLE's this past week were of particular interest to our readers, one about eminent domain, and the other about the takings case currently pending before the U.S. Supreme Court (which will be argued on October 3, 2012).

The latter panel -- "Hell or High Water" Flooding & Takings Law -- focused on the issues in Arkansas Game & Fish Comm'n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the case in which the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it eventually stopped, and "at most created tort liablity." The panelists included Julie Greathouse (counsel for the Petitioner), law professors John Echeverria and David Dana, and my Owners' Counsel of America colleague Darius Dynkowski. The panel was moderated by Paul Wilson (who does not have a link, since he will soon be taking the bench as a Superior Court Judge in Massachusetts).

We won't go over the entire transcript of the hourlong discussion or the spirited questions that followed (the program will be repeated for web and CD listeners later), but we did want to point out a couple of things.

• One of the professors noted that it did not seem right that landowners who had benefitted from flood control projects should be able to complain when the federal government modifies those controls, even if it results in catastrophic damages from the resultant flooding. After all, no one has a right to make the government protect their land with a flood control project, right? Having not possessed such a right, they surely cannot complain when the protections are removed. This strikes us as akin to the "Givings Clause" arguments that have been made in other cases, but here it seems particularly off-base to phrase the argument in that manner, because when the federal government implements flood control projects it is doing so for the betterment of all under the commerce and navigation power, not just to benefit the landowners who may be high and dry as a result. These are projects that are, by definition, for public use, and it seems to us that once built, the fact that a property owner has benefitted from an exercise of the commerce power should not preclude them from asserting a taking when their property is confiscated for the public good. You didn't build that, after all.

• Another of the professors saw the Arkansas Game and Fish case as one where the federal government was merely choosing between competing evils (i.e., whose lands do we flood), and unfortunately, someone has got to get the short end of the stick. This argument also strikes us as wrong because choosing between harms is one of government's functions, and indeed, can be viewed as another way of phrasing the Public Use requirement of the Fifth Amendment. As Mr. Dynkowski pointed out, why is choosing between whose lands are flooded any different that choosing on whose land the highway is to be located? In the latter case, there is no question that there is a taking when the government locates a public highway on property, so why should there be a question when the government decides to flood certain property? While there may be other reasons why the Court may not find a taking here, the mere fact that the government is making a choice should not be a dispositive factor.

We will be posting up a complete set of the merits and amicus briefs in the case in advance of the Supreme Court arguments in October. Stay tuned.

Resources From Today's ABA Eminent Domain Session

Here are the cases and links that I discussed at today's ABA session on eminent domain:

• Kelo - Remember the holding of the case: the Court majority rejected the petitioners' call to adopt a blanket rule that all takings supported only by claims of economic development violate the Public Use Clause of the Fifth Amendment. In declining to adopt the rule, the Court left open challenges based on lack of a comprehensive plan, claims that the advanced public use is a pretext to hide a predominant private purpose, and the old "A-to-B" private taking.

• City of Stockton v. Marina Towers LLC (Cal. Ct. App. 2009) - The case in which the court held that the city's resolution of necessity was so "nondescript [and] amorphous," and "so vague, uncertain and sweeping in scope that it failed to specific the 'public use' for City sought acquisition of the property."

• Aspen Creek Estates, Ltd. v. Town of Brookhaven (NY App. Div. 2007) - In which there was no "carefully considered" plan of which the condemnation was a part, but the court implied one. Really.

• Middletown Township v. Lands of Stone (Pa. 2007) - The Pennsylvania Supreme Court upheld the power of a local government to take property "for any legitimate purpose," notwithstanding statutory language that did not extend authority to the town to take property for "open space."  However, the court struck down the attempted taking because the evidence showed that the real purpose of the taking was something other than the Township's stated reason. 

• Township of Readington v. Solberg Aviation Co. (NJ App. Div. 2009) - A New Jersey appellate court held that a municipality abused its condemnation power when it attempted to take property to thwart the expansion of a nearby airport. The court concluded that a pretext challenge should be based on objective evidence, not only on the statements of the municipality and its officials.

• Rick Rayl's posts on the California Eminent Domain Report analyzing the proposals to use eminen domain to take underwater mortgages. Start here and read all of them. 

ABA Annual Meeting, Chicago: Free Screening Of "Crime After Crime"

On Thursday, August 2, 2012, at 3:30 p.m., as part of the ABA Annual Meeting, the ABA and the State & Local Government Law Section is sponsoring a free screening of " Crime After Crime," the award-winning documentary from director Yoav Potash chronicling two San Francisco Bay Area land use lawyers who volunteer to provide their services to try and help free a woman who has been imprisoned for 20 years. We saw the film last year, and loved it. It was one of the best we have seen in a while:

"Crime" and "land use lawyers" are phrases not usually heard together; in most cases, the worlds of criminal law and land use never intersect, and lawyers for developers and property owners don't have much occasion to visit the "Attorney's Room" at the state pen. But in the documentary film Crime After Crime, two land use lawyers including our State and Local Government Law Section colleague Nadia Costa (Vice-Chair of the Section's Land Use Committee), plunge into that unfamiliar milieu.

In 1983, Deborah Peagler, a woman brutally abused by her boyfriend, was sentenced to 25 years-to-life for her connection to his murder. Twenty years later, as she languished in prison, a California law allowing incarcerated domestic-violence survivors to reopen their cases was passed. Enter a pair of rookie land-use attorneys convinced that with the incontrovertible evidence that existed, they could free Deborah in a matter of months.

More details on the case here. Read my complete review here. Here are the details of the screening:

Location: DePaul University College of Law, 25 E. Jackson Blvd, Chicago, Room 241.

Cost: Free.

CLE Credits: Following the screening, we will be presenting a CLE on "The Cost of Wrongful Convictions" featuring Director Potash, Nadia Costa (one of the lawyers featured in "Crime After Crime"), Craig Watkins (District Attorney, Dallas), and Emily Miller (Better Government Association, Chicago). The panel will be moderated by our SLG Section colleague Donna Frazier.

Hope you can join us if you are attending the Annual Meeting, or are just in Chicago.

Links From Today's Eminent Domain Teleconference

For those who listened in to the just-concluded "Recent Developments in Eminent Domain" teleconference, thank you. Here are the links to the cases and briefs that we discussed that were not included in your written materials. Also, click on the link above to order the audio CD of the program if you missed out.

• The D.C. Court of Appeals' follow up opinion in Franco.

• Property owner victory in the Willets Point eminent domain battle.

• Are interlocutory public use determinations immediately appealable? Some courts say no. Others say yes. 

• Despite "complete vindication" after "an abuse of the condemnation process," the property owner is denied fees and costs. 

• More on the California Supreme Court's opinion validating the legislature's elimination of redevelopment agencies. Follow the issue at the California Eminent Domain Report. 

• Cert denied in just comp case, but the issue will return, we're certain.

Upcoming Teleconference: Recent Developments In Eminent Domain

Mark your calendars for next Tuesday, July 17, 2012, at 1:00 p.m. Eastern (noon CT, 11:00 a.m. MT, 10:00 a.m. PT, 7:00 a.m. Hawaii Time) for "Recent Developments in Eminent Domain," a live audio program sponsored by Lorman Education.

It's a 1.5 hour teleconference discussing some of the more important recent court decisions about our favorite topics, eminent domain, inverse condemnation, and regulatory takings.

I'm the sole faculty member, so you get to hear me chatter for about an hour and fifteen minutes, and we'll save 15 minutes or so for questions. I'll be covering the latest in public use, just compensation, and related topics. Here is the registration and CLE credit information. Hope you can join us.

Ethics CLE: Navigating Local Government Recusal Laws, Conflicts of Interest and Government Immunity

Here's the first of two CLE programs that I'm doing next week Thursday. Through the magic of the internet, we're doing a nationwide webinar on ethics issues, followed by an in-person eminent domain conference in Honolulu.

On Thursday, May 10, 2012, starting at 1:00 p.m. EDT (10 a.m. PDT, 7 a.m. HST), I'll be presenting "Municipal Law: Navigating Local Government Recusal Laws, Conflicts of Interest and Government Immunity" on-line, along with my colleagues Michael Donaldson, Michael Kamprath, and Professor Patricia Salkin. We'll be discussing ethical issues, using two recent U.S. Supreme Court cases as context: Nevada Comm'n on Ethics v. Carrigan, and Filarsky v. Delia. Here's a description of the program:

Local government counsel regularly face a myriad of ethical issues. Key problematic areas concern recusal laws, conflict of interest, identifying the client, and the scope and applicability of qualified immunity for municipal counsel—whether a government employee or private counsel.

The ABA Model Rules of Professional Conduct recognize that client identification in the government context—and the resulting duties—can be particularly troublesome. Recent cases before the U.S. Supreme Court also raise relevant issues for municipal counsel.

Nevada Comm'n on Ethics v. Carrigan addresses a recusal requirement for public officials facing a potential conflict of interest. Filarsky v. Delia (pending review by the Supreme Court) held that private counsel retained by the government is not entitled to qualified immunity.

Listen as our panel of municipal law attorneys discusses the scope and applicability of government immunity for government and private counsel retained by government. The panel will also offer practical solutions to ethical issues concerning local government recusal laws and conflict of interest.

Hope you can join us. More details, including registration information, here.

ALI-ABA Eminent Domain Conference 2012 Now On DVD & CD

In case you missed attending in person back in January, the annual eminent domain law conference (ALI-ABA's Eminent Domain and Land Valuation Litigation) is now available on CD, mp3, and DVD here.

I was on the faculty, and along with Professor David Callies presented a session on The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases. In addition to our session, there were presentations on such topics as Redevelopment in California, how to talk to juries about Just Compensation, Landlord and Tenant Issues in Eminent Domain, the latest in Highest and Best Use. And more.

Get your yearly CLE fix, including ethics credits, all for a great price. You can also purchase individual sessions,

Thursday Round-Up

Here's what we're reading today:

• The Ninety Day Period to Challenge a Land Use Approval is Not Extended by More General Rules Governing Administrative Mandamus - via Abbott & Kindermann's Land Use Blog.

• Supreme Court Revises Test to Establish Common Carrier Status in Condemnation Cases - more on the Edwards Aquifer case, from the Jackson Walker firm in Texas.

• Eminent Domain & Land Use in Hawaii - May 12, 2012 seminar in Honolulu. 

• Res judicata did not bar circuit court’s review of inverse condemnation claim - via the Michigan Township Law Blog. 

• Hawaii Legislature: the gift that keeps on giving. The Senate passed the bill that would require "nonresident" property owners to use a real estate broker to rent their property as a short term (vacation) rental. Yes, really. 

• Civil Beat op-ed: Reality Check Needed On Reapportionment Plan.

Links From Today's IMLA Regulatory Takings Webinar

Here are the links to the cases and other items discussed today at the International Municipal Lawyers Association webinar with Dan Mandelker and Dwight Merriam. Most of these cases are also in your written materials.

• 9th Circuit: California Raisins Were Not Taken (Horne v. U.S.D.A., No. 10-15270 (9th Cir. July 25, 2011))

• Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

• Kaiser Aetna v. United States, 444 U.S. 164 (1979).

• Yee v. City of Escondido, 503 U.S. 519 (1992).

• Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

• Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 130 S. Ct. 2592 (2010).

• Vandevere v. Lloyd, No. 09-35957 (9th Cir. July 11, 2011).

• Vanek v. State, 193 P.3d 283, 286 (Alaska 2008).

• Brown v. Howard, 2011 WL 2535555, at *1 (S.C. June 21, 2011).

• South Carolina Bar's amicus brief in Brown.

• Johnson v. Manitowoc County, No. 10-2409 (Mar. 19, 2011).

• Amerisource Corp. v. United States, 525 F.3d 1139 (Fed. Cir. 2008).

• Bala v. North Dakota, No. 20090312 (Sup. Ct. N.D. Aug. 23, 2010).

• Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005).

• Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

• Kelo v. City of New London, 545 U.S. 469 (2005).

• DeCook v. Rochester Int’l Airport Joint Zoning Bd., No. A09-96 (Sup. Ct. Minn. Mar. 30, 2011).

• McCarthy v. City of Cleveland, No. 09-4149 (6th Cir. Nov. 9, 2010).

• Chicago v. Int’l College of Surgeons, 522 U.S. 156, 15 (1997).

• Dunlap v. City of Nooksack, No. 63747-9-9 (Oct. 25, 2010).

• Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978).

• Guggenheim v. City of Goleta, No. 06-56306 (9th Cir. Dec. 22, 2010) (en banc).

• Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948 (9th Cir. 2011) (cert. denied Oct. 17, 2011).

• Downing/Salt Pond Partners v. Rhode Island, 643 F.3d 16 (1st Cir. 2011).

• Petition for Rehearing/En Banc in CCA Associates (Federal Circuit) (seeking review of this opinion).

• Avenida San Juan P'ship v. City of San Clemente, No. G043479 (Cal. Ct. App. Dec. 14, 2011).

• R&J Holding Co. v. Redevelopment Authority of Montgomery County, No. 10-1047 (3d Cir. Dec. 9, 2011).

 

March 13, 2012: RLUIPA Webinar

Mark your calendars: Dwight Merriam and his team at Robinson & Cole are conducting a webinar/teleconference CLE, "Religious Land Use and Institutionalized Persons Act Claims - Strategies for Local Governments to Avoid or Defend RLUIPA Actions." Also on the faculty is Professor Marci Hamilton, one of the nation's leading church/state scholars and the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.

The webinar will be held on March 13, 2012, but the early registration deadline (for a substantial tuition discount) is February 17, 2012. Here's a description:

After the Religious Land Use and Institutionalized Persons Act (RLUIPA) was signed into law over a decade ago, religious institutions nationwide began filing claims against municipalities alleging that certain zoning and land use decisions violated RLUIPA and infringed upon their right to religious exercise.

RLUIPA suits continue today. Courts have ordered injunctions and awarded monetary damages and attorneys’ fees for RLUIPA violations, including at least two multi-million dollar awards in the past year. Courts have dismissed RLUIPA (and related) claims in appropriate circumstances.

In light of the increase in RLUIPA litigation, municipalities should evaluate their zoning policies and practices to ensure that they comply with the law.

Listen as our panel of land use lawyers, litigators and legal scholars examines current RLUIPA case trends, offers practical guidance on how to avoid RLUIPA claims, and recommends steps to take when a suit has been filed against your municipality.

More information, including registration, here.

ALI-ABA Annual Eminent Domain Conference, San Diego: "The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases"

Here are the cases Professor Callies and I discussed in today's session at ALI-ABA's Eminent Domain and Land Valuation conference:

• McCandless v. United States, 298 U.S. 242 (1936) - an offer of proof that irrigation water could be transported to the land was not too "remote and speculative," and should have been allowed in support of the property owner's contention that the highest and best use of the land taken was to grow sugar cane.

• Damon v. Hawaii, 194 U.S. 154 (1904) - when an ahupuaa patent includes the adjacent fisheries, the U.S. Constitution recognizes that interest as "property."

• Kaiser Aetna v. United States, 444 U.S. 164 (1979) - when a private waterway, recognized as private property under Hawaii law, is modified by private effort and investement into a navigable waterway, the government can only impose a right of public access by condemnation.

• Hawaii Housing Authority v. Midkiff, 463 U.S. 1323 (1984) - "Public use" is "coterminous" with the police power. Eminent domain is just another land-planning tool.

• Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) - the "substantially advance" test is not one of regulatory takings, but of due process. 

• The Hawaii water law backstory to the "judicial takings" issue.

ALI-ABA Annual Eminent Domain Conference, January 26-28, 2012, San Diego

There's still time to join us in person on via the webcast for the annual eminent domain law conferences (January 26-28, 2012) produced by the American Law Institute-American Bar Association. We're back in San Diego this year. 

We're on the faculty ("The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases" with Professor David Callies), so if you attend either course, please stop by and say hello.

San Diego is a very appropriate venue, given the city's persistent use of "redevelopment" and eminent domain, a process that the California Supreme Court recently ended (see video above - more here). This recent development will be one of the hot topics of discussion.

Here's the description of Eminent Domain and Land Valuation Litigation, the premiere program on condemnation law and related topics:

The power of eminent domain is being reshaped across the nation by court rulings and legislation. Much of the recent court activity and legislation has involved the controversial use, or attempted use, of eminent domain power to take private property for economic development by private parties. Redevelopment, however, is not the only fluid area in takings law. This national course of study addresses those areas where new developments in the law and procedure have and will reshape the practice. Learn what’s new in the cutting-edge areas of eminent domain law and how the practice in this field continues to evolve.

This popular and long running advanced course of study kicks off with a comprehensive update on eminent domain case law and legislation by a preeminent practitioner.

Each morning, the course focuses on hot issues and topics that affect practitioners today.

On Thursday and Friday afternoon, a dual track system addresses important substantive and practice topics in a series of breakout sessions. Registrants can learn about the key issues in substantive takings law from nationally recognized and experienced professionals. On the practice side, registrants can choose from another array of sessions chock full of practice pointers.

The course brings all the right participants together — lawyers, appraisers, condemning agencies, right-of-way professionals, and many others — to share valuable experiences and engage in healthy debate on these cutting-edge issues.

Networking opportunities are scheduled throughout the program, with breakfasts, networking breaks, a reception on Thursday afternoon, and social activities in the evenings arranged by a special Hospitality Committee. Come and meet with colleagues from around the nation, exchange ideas, enjoy the fellowship, and collect more than 16 hours of CLE credits.

This course runs concurrently with ALI-ABA's annual Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain. This unique format allows practitioners who are new in the field of eminent domain to network with many of the nation's most experienced condemnation lawyers, and to benefit from many of those same lawyers serving as their faculty.

These really are fantastic programs (one of the great benefits of being on the faculty is that I get to sit in on the other sessions), so please join us if you are able.

ABA Teleseminar: Ethics, Government Conflicts Of Interest, And The First Amendment

There's still time to register for tomorrow's teleconference on Ethics for Municipal Attorneys: Reconciling the Rules of Professional Conduct with Government Ethics Law (a live webinar and teleconference which starts at 1:00 p.m. Eastern Time). More information, including registration, here. This program is sponsored by the ABA Continuing Legal Education Center and the Section of State and Local Government Law.

We'll be focusing on more than just ethics for government attorneys, and we've built the program around our thoughts on the U.S. Supreme Court's decision in Nevada Commission on Ethics v. Carrigan, where the Court concluded that a city council member's vote was not first amendment "speech," and he was therefore subject to a Nevada statute thave prohibits elected officials from voting when they may appear to have conflicts of interest.

Joining me in the discussion will be Yvonne M. Nevarez-Goodson (Commission Counsel and one of the lawyers for the Nevada Commission on Ethics in the Supreme Court), J. Scott Rhodes (an expert in ethics and professional responsibility issues), and Professor Keith Swisher (Phoenix School of Law - his scholarship includes ethics and he produces the Judicial Ethics Forum blog). Michael Donaldson will moderate the discussion.

Here's a summary of the Carrigan case from the Fall 2011 edition of State & Local Law News. Please join us - we will follow the presentation with questions from the audience.

Hawaii Water Law Conference (Jan. 11, 2012)

There is still time to join us for the upcoming Hawaii Water Law conference, to be held in Honolulu on January 11, 2012. I am the planning co-chair along with Jesse Souki, Director of the State of Hawaii Office of Planning.

In addition to Jesse and me, we've assembled a diverse and talented faculty: UH lawprof David Callies will speak with Elijah Yip (Cades) on the latest developments in water law and public trust litigation. State Water Commissioner Lawrence Miike will update us on the latest goings-on at the Commission. My Damon Key partner Greg Kugle is speaking with Leo Asuncion, the Manager of the Coastal Zone Management Program at the State Office of Planning on coastal issues.

After lunch, we have a special guest, Ed Thomas (a lawyer and President of the National Hazard Mitigation Association, and a nationaly known expert in floodplain management and disaster relief), who will speak with Jesse Souki and Richard Wallsgrove (Starn) about how the law is dealing with "climate change" adaptation. Lisa Bail (Goodsill) and I will speak about federal environmental issues and regulatory jurisdiction, including a summary of the Sackett v. EPA case being argued this week at the U.S. Supreme Court.

We will end the day with an hour of Hawaii mandatory ethics CLE credits (MCPE), with Carole Richelieu, former Chief Disciplinary Counsel for the State of Hawaii (and me) addressing ethical issues when dealing with agencies and boards.

Here's the complete agenda. Brochure below.

Come, join us.

Hawaii Water Law, January 11, 2012

Agriculture And Property Rights: Why Hawaii Matters

On Monday, January 9, 2012, I'll be speaking to my American Farm Bureau Federation colleagues, who are in town for the AFBF annual meeting.

The title of my presentation is "Agriculture and Property Rights: Why Hawaii Matters." I'll be talking water rights, GMO, right-to-farm, eminent domain, and other issues to the lawyers who represent farmers and ranchers. I'll record it and post it here on Monday.

Check out the AFBF's annual meeting blog here.

New Article: New Media Strategies For Marketing Your Eminent Domain Practice

At the 2010 ALI-ABA eminent domain conference, Anthony Della Pelle (NJ Condemnation Law blog), Nancy Myrland (social media marketing consultant), and I presented a session on how condemnation lawyers can leverage social media to build their law practices.

This month's edition of The Practical Real Estate Lawyer includes my short article based on the materials I presented at the conference, The Social Lawyer: New Media Strategies For Marketing Your Eminent Domain Practice (Jan. 2012). 

The Social Lawyer: New Media Strategies For Marketing Your Eminent Domain Practice - The Practical Real Est...

Movie Review: "Battle For Brooklyn" -- Lessons For Honolulu Rail From A Reluctant Activist

The Honolulu Star-Advertiser published my movie review of "Battle For Brooklyn," the documentary about the Atlantic Yards eminent domain fight, on the op-ed page. Check it out here or below. More importantly, if you are in Honolulu next week, come to one of the four screenings (details and link to ticket purchase below).

'Battle for Brooklyn' coming to rail project near you

How would you react if the government ordered you to give up your home or business so a developer could build an arena for his basketball team? Accept what money is offered, or dig in your heels and fight?

"Battle for Brooklyn," the Oscar-contending documentary premiering in Hawaii next week, chronicles one homeowner's fight against the city's taking of his property. But the film leaves open the question of whether he did the right thing, for the right reasons.

The film compresses seven years of events into 93 minutes, but here's a short summary: The NBA's New Jersey Nets want to move to Brooklyn, but there's no arena. So the city and the team's owner, a politically connected developer, design "Atlantic Yards," a 22-acre "affordable housing" project the crown jewel of which, not surprisingly, is the Nets' new arena.

Despite their claim the project will "start from scratch," the developer does not own 22 vacant acres in New York. Instead, homes and businesses located where he wants his arena will have to be destroyed. Owners who can't be convinced to sell will have their properties taken by eminent domain.

When these landowners object, their properties are declared legally "blighted" and thus ripe for forced acquisition, although nothing is truly blighted about them. What of their lives, their dreams, and their properties?

"Change is hard for everybody," the developer's public relations man smoothly counsels.

"Battle for Brooklyn" details a New York eminent domain controversy, but it is particularly relevant to Hawaii audiences. Honolulu has launched its largest-ever public works project, the $5.1 billion-plus rail development, which will envelop homes and businesses currently in the way.

This film is a crash course in how decisions to take property really get made, and how a single citizen can galvanize a community. Although the city and the developer pitch the project as fueled by "jobs, jobs, jobs" and affordable housing, neither materialize. The New York City Council hearing and redevelopment agency meeting suggest the neighborhood was not condemned for the public good, but because someone else had greater influence at City Hall. There is much here for Hawaii audiences to learn.

However, the film does not fall into the trap of becoming a political screed. Instead, it tells an emotional story that will appeal to even those unfamiliar with the machinations of eminent domain. Its heart is a character study of Daniel Goldstein, the property owner who reluctantly becomes the sole holdout among his 130 neighbors. He doesn't intend to become a community organizer, and is clearly not a professional activist. At his initial press conference, what at first appears to be the wind moving his notes is revealed as his hands shaking. He evolves from bewildered homeowner to sophisticated spokesman and property rights activist, and over the course of the film becomes more articulate, more committed, and increasingly angry with what he decries as a "failure of democracy."

Goldstein's battle does not come without a price, however. Late in the film, self-awareness flashes across his face as he admits his fight has not really been about protecting his modest condo, but more about his neighborhood's collective loss of control and the lack of respect shown by the city and the developers.

"This is not about this apartment. That would be insane," he admits.

Is it insanity to resist being dispossessed of your property, even when your struggle proves uphill, and may ultimately be hopeless? See "Battle for Brooklyn" and decide for yourself.

'BATTLE FOR BROOKLYN' VIEW DATES

"Battle For Brooklyn," directed by Michael Galinsky and Suki Hawley, will show on Jan. 3 and 4 at 1 and 7:30 p.m. at the Doris Duke Theatre, Honolulu Academy of Arts. A question-and-answer session will follow each showing. Purchase tickets here.

---

Robert H. Thomas is a lawyer with Honolulu's Damon Key Leong Kupchak Hastert, where he practices eminent domain and land use law. An author and speaker on property law issues nationwide, he also chairs the Condemnation Law group at the American Bar Association's Section of State & Local Government Law.

ALI-ABA Annual Eminent Domain Conference, January 26-28, 2012, San Diego

Get ready, it's that time of year again: the annual eminent domain law conferences by the American Law Institute-American Bar Association, this year to be held in San Diego from January 26-28, 2012.

Here's the description of Eminent Domain and Land Valuation Litigation, the premiere program on condemnation law and related topics:

The power of eminent domain is being reshaped across the nation by court rulings and legislation. Much of the recent court activity and legislation has involved the controversial use, or attempted use, of eminent domain power to take private property for economic development by private parties. Redevelopment, however, is not the only fluid area in takings law. This national course of study addresses those areas where new developments in the law and procedure have and will reshape the practice. Learn what’s new in the cutting-edge areas of eminent domain law and how the practice in this field continues to evolve.

This popular and long running advanced course of study kicks off with a comprehensive update on eminent domain case law and legislation by a preeminent practitioner.

Each morning, the course focuses on hot issues and topics that affect practitioners today.

On Thursday and Friday afternoon, a dual track system addresses important substantive and practice topics in a series of breakout sessions. Registrants can learn about the key issues in substantive takings law from nationally recognized and experienced professionals. On the practice side, registrants can choose from another array of sessions chock full of practice pointers.

The course brings all the right participants together — lawyers, appraisers, condemning agencies, right-of-way professionals, and many others — to share valuable experiences and engage in healthy debate on these cutting-edge issues.

Networking opportunities are scheduled throughout the program, with breakfasts, networking breaks, a reception on Thursday afternoon, and social activities in the evenings arranged by a special Hospitality Committee. Come and meet with colleagues from around the nation, exchange ideas, enjoy the fellowship, and collect more than 16 hours of CLE credits.

This course runs concurrently with ALI-ABA's annual Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain. This unique format allows practitioners who are new in the field of eminent domain to network with many of the nation's most experienced condemnation lawyers, and to benefit from many of those same lawyers serving as their faculty. Special Offer: Attend Eminent Domain and Land Valuation Litigation and bring an associate to Condemnation 101 for 50% off.  ADD TO CART

We're on the faculty ("The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases"with Professor David Callies), so if you attend either course, please stop by and say hi.

Exclusive Hawaii Premiere: Battle for Brooklyn, Academy Award Contending Documentary About Eminent Domain

A reminder: on January 3 and 4, 2012, at 1:00 and 7:30 p.m. each day, the Honolulu Academy of Arts Doris Duke Theater is presenting the Hawaii premiere of Battle For Brooklyn, the Academy Award-contending documentary about the Atlantic Yards eminent domain fight. We are lucky enough to have the exclusive Hawaii showing of this important, informative, and entertaining film. More information (and ticket purchase) from the Academy of Arts web site here.

There will be Q & A sessions following each screening with the filmmakers and (perhaps) a special guest, TBA.

The film has received fantastic reviews (a New York Times critics' pick), and recently made the short list for films in the running for the Best Documentary feature Academy Award. We reviewed the film here, and highly recommend it.

Battle For Brooklyn is an especially timely film for Hawaii audiences: it chronicles one homeowner's years-long fight to save his property from being taken by eminent domain so the land could be used for a new arena for the NBA's New Jersey Nets, and Honolulu is in the opening phases of the $5 billion rail project, the most expensive public works project in its history. The rail project will require the taking of hundreds of homes and businesses, and Battle For Brooklyn's inside look at the politics of eminent domain is an eye-opener about how the process of taking private property really works. 

Come join us!

Links From Today's Webinar "Eminent Domain: Redevelopment Challenges for Local Government"

For those who tuned in to today's webinar Eminent Domain: Redevelopment Challenges for Local Government, here are the cases I spoke about during my session:

• Amy Lavine's law review article with the backstory of Berman v. Parker - Urban Renewal and the Story of Berman v. Parker, 42 Urban Lawyer 423 (2010) (article posted here).

• Franco v. National Capital Revitalization Corp., 930 A.2d 160 (D.C. 2007) (pretextual takings under Kelo).

• County of Hawaii v. C&J Coupe Family Ltd. P'ship, 198 P.3d 615 (Haw. 2008) (under Kelo, trial courts presented with prima facie evidence that the stated public use is a pretext to cover up private benefit must look to the real motive for a taking even if the taking is for a "classic" use).

• County of Hawaii v. C&J Coupe Family Ltd. P'ship, 242 P.3d 1136 (2010) (the above case after remand - affirming the legal test but finding that the property owner did not prove pretext, ), cert. denied (2011).

• Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008) (pleading pretext under the Iqbal/Twombly standard), cert. denied (2008).

• Goldstein v. New York State Urban Dev. Corp., 921 N.E.2d 164 (N.Y. 2008) (the other Atlantic Yards case; the NY Court of Appeals treats -- or, more accurately, doesn't treat -- blight designations under state law).

• 49 Wb, LLC v. Village of Haverstraw, 44 A.D.3d 226 (2007) ("Courts are required to be more than 'rubber stamps' in determining whether a taking furthers a public use.").

• Kaur v. New York State Urban Dev. Corp., 15 N.Y.3d 235, --- N.E.2d ---- (2010) (New York courts still cannot figure out "blight"), cert. denied sub nom (2011)

• Uptown Holdings, LLC v. City of New York, No. 2882 (App. Div. Oct. 12, 2010) ("Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings in [Goldstein and Kaur] have made plain that there is no longer any judicial oversight of eminent domain proceedings.").

• Battle For Brooklyn, the Oscar-contending documentary about the Atlantic Yards fight. 

• Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, No. 09-0901 (April 19, 2011) (under Texas Constitution, courts make an actual and factual inquiry into the company's claim that the pipeline would be available for use by the public).

• Eminent Domain - A Handbook of Condemnation Law (ABA 2011) (save yourself the entire Nichols set - here's a deskbook overview).

• Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. 2007) ("blight" means more than "not fully productive"). 

• Middletown Township v. Lands of Stone, 939 A.2d. 331 (Pa. 2007) (takings outside of a comprehensive plan).

T-Day Door Prize. Second Prize Is A Set Of Steak Knives.

This is a post for those who decided they wanted to visit a law blog today instead of (a) filling their bellies with the usual Thanksgiving fare; (b) watching football on TV; (c) gearing up for the insanity of the day-after shopping; or (d) pretty much anything else.

Seriously, what are you doing reading a law blog this day?

Anyhow, here's the deal if you are: On Thursday, December 1, 2011 at 1:00pm-2:30pm EST (10:00am-11:30am PST, 8:00am - 9:30am HST) we'll be presenting the on-line webinar "Eminent Domain: Redevelopment Challenges for Local Governnment - Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use" (click the link for more information), and if you'd like to join us with the $250 registration fee waived (yes: free, gratis, no charge, free-ninety-free), and you are one of the first three people to email me, I will sign you up. For free.

This deal closes when either (a) three people RSVP by emailing me, or (b) at noon Hawaii Time on Friday, November 25, 2011, whichever comes first.

If you aren't one of the first three, I can still get you 50% off the reg fees. Still a great deal.

This webinar is national in scope, and we've got experts from around the country speaking on issues that we're all interested in (see the program description and agenda at the link above): joining me are colleagues Anthony Della Pelle (McKirdy & Riskin - New Jersey), J. Casey Pipes (Helmsing, Leach, Herlong, Newman & Rose - Alabama), Rick E. Rayl and Bradford Kuhn (Nossaman - California), and Mark M. Murakami (Damon Key Leong Kupchak Hastert - Hawaii).

And if you miss out? As Alec Baldwin said, "second prize is a set of steak knives."

Brigham-Kanner Conference: The Video

In case you missed out on the 8th Annual Brigham-Kanner Property Rights Conference, held last month in Beijing, check out this video (here is the page with links to all of our posts related to the conference).

The Conference was a resounding success, and featured presentations and papers by the creme de la creme of the property academy and practicing bar in the U.S. and China, a truly all-star line up.

Podcast: Sackett v. EPA - SCOTUS Preview: Immediate Judicial Review, Or Death By A Thousand Days?

Yesterday, I gave an informal presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court regarding the ability of property owners to challenge a determination by the U.S. Environmental Protection Agency that their property contained "wetlands" under the Clean Water Act, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

We videotaped the session, and (if tech cooperates) we will post the video. But in the meantime, stream the audio below, or download the 45mb mp3 here:

Here are the links to the briefs that have been filed in the case (so far):

• Petitioner's Brief

• Amici briefs supporting Petitioner (except the States' brief)

• The amici brief filed by several states, including Hawaii, in support of the property owners.

• Here are the cert stage briefs.

Here's the Court's docket report. We will post the Respondent's Brief when it becomes available, and any amicus brief filed supporting the Respondent. Below are links with more video and information about the case:

• Pacific Legal Foundation (my colleagues who represent the property owners) resource page.

• Video of a recent congressional hearing. 

• NPR's story, with photos and audio.

Tuesday State Bar Session On Sackett v. EPA

A reminder: on Tuesday, November 1, 2011, from noon to 1:00 p.m., I'll be making a presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. EPA, No. 10-1062 (cert. granted June 28, 2011).

The venue is the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street. We'll talk about the case, the arguments of the parties and amici (the State of Hawaii joined an amici brief in support of the property owners), and what the Court might do.

We may also discuss other pending cases of interest, if there's time. Please join us and bring your questions. Non-members are welcomed to join on a space available basis.

Also, for those who are not able to be there, we will be videotaping the session, and if the quality of the recording is acceptable, we will post it on the blog.

Yosemite Seminar Summary - Regulatory Takings: Looking Back And Looking Forward

"Yosemite," according to California Place Names, Erwin Gudde's seminal work on the origins of (surprise) California place names, means "they are killers." It was "[e]vidently a name given to the Indians of the valley by those outside it."

I raise this historical tidbit because I must admit to feeling a little like "those outside it" when I was invited to speak about regulatory takings at the California State Bar's Environmental Law Conference at Yosemite. I figured as a conference devoted to environmental law, it was a going to be a decidedly skeptical audience, given my advocacy for property owners and property rights. I accepted the invitation nonetheless, heartened that this conference wasn't going to be an echo chamber and that they were at least open to hearing competing ideas.

It turns out that my prediction about "they are killers" was not accurate -- the audience, while not exactly sympathetic to my viewpoints, was was certainly open and friendly and welcoming while I spoke about "Regulatory Takings: Looking Back and Looking Forward" with U.C. Berkeley law professor Joseph Sax and Deputy California Attorney General Daniel L. Siegel. We focused on seminal regulatory takings cases from the recent past, and each made predictions of what might be next. "The panelists, who have been involved in several of the most significant takings cases since even before the founding of the annual Yosemite Environmental Law Conference twenty years ago, will highlight key decisions, offer their views on the evolution of takings law, and discuss cutting-edge issues raised by more recent court decisions."

Sidebar: if you were not able to attend, the audio recording is now available for purchase for a very modest price ($34 gets you the two CD set and the written materials, and includes the 1.5 hours of MCLE credit) from Versa Tape. Go here to order (if that link does not work, go here and enter "11ELC-15AB" in the search box). I've posted some short sound bytes of each presentation to give you a flavor of the session.

To start us off, Clem Shute provided us with a quick history of regulatory takings law over the last 40-plus years since Penn Central. He also moderated the panel discussion. Listen to his introduction here:

I was up next. I focused on five takings issues that I predict will be important to watch: (1) the definition of "property" (including the judicial takings question); (2) how courts define "regulatory taking," and whether those cases holding that a government action is not a taking simply because the government is not purporting to exercise its eminent domain power will survive close scrutiny; (3) the growing body of state court decisions on takings under state constitutions; (4) what to do with the Penn Central three-part standard now that the Court has reaffirmed is as the default test; and (5) will the Court abandon or modify the Williamson County ripeness test, as four Justices suggested in the San Remo Hotel case?

What it looked like from where I sat.

I also mentioned one "non takings" issue that is worth watching: whether substantive due process will become more important now that the Supreme Court has removed the "substantially advance" test from takings analysis, and moved it over to due process (more detail on this issue here). In this area, Justice Kennedy is the one to watch, as his concurring opinions in Kelo and Lingle both telegraph his notion that on questions of the legitimacy of government actions that impact property, the due process clause is more critical than the takings clause. Links to all of the cases I discussed and that are referenced in my written materials are posted here.

Next, Dan Siegel noted the sharp decline in the number of regulatory takings/inverse condemnation cases heard by the Supreme Court since the mid-1980's.

Dan Siegel (Deputy California Attorney General)

Dan also noted areas he believes are still unresolved: (1) whether the nexus and rough proportionality standards of Nollan and Dolan are limited to exactions of real property, an issue the subject of a pending cert petititon; (2) whether water use restrictions are analyzed as physical or regulatory takings (see the Casitas decision from the Federal Circuit for an example of a court treating it as a physical take); (3) Williamson County's future; (4) is there such a thing as a "judicial taking;" and (5) the parcel-as-a-whole question. On whether these issues are open, I agree wholeheartedly with Dan; our differences are on how the Court should resolve them.

Professor Sax ended the session by providing his scholarly view. He rightly suggested that the law of regulatory takings has largely escaped clear doctrinal development. Thus, it appears that decisions in which the Court has found a taking are driven more by the apparent unfairness of the situation than by the application of clear or consistent rules. See, e.g., the government's repeated rejections of development proposals while informing the property owner that it might approve its application if only it returned with a more modest proposal in the Del Monte Dunes case.

Professor Joseph Sax sums it all up.

Professor Sax concluded that the Court will be reluctant in the next few years to take up cases in order to articulate "large general principles or major doctrinal theories of property," but that if a situation appears to involve "serious over-reaching by regulators (especially land use regulators)," the Court will step in. He also agreed with Dan and I that the judicial takings issue is an open question, as are issues involving the boundary between public and private property at the shoreline. Of course, this being Professor Sax, the public trust issue and the question of what are "background principles" of state property law were never far from our minds.

In sum, it was an enjoyable and informative session (as was the remainder of the presentations at the Conference).I appreciate the invitation to speak, as well as the warm welcome I received.

The written materials were not distributed on paper, but
on a USB drive. With a faux wood casing, no less. Very green.
There was a lot of quality swag at the conference: backpacks,
water bottles, flashlights, and more post-its and pens
than you could possibly take.

This photo has nothing to do with the conference, except that we
passed by this sign on the drive out of the mountains via the National
Park. Call it "bad marketing," since I am not going anywhere near
any body of water labeled "Mosquito Creek."

Upcoming Hawaii State Bar Association Presentation: Sackett v. EPA - Immediate Judicial Review Or Death By A Thousand Days?

The Natural Resources Section of the Hawaii State Bar Association has kindly asked me to speak to its members at their monthly lunch meeting, next Tuesday, November 1, 2011, from noon to 1:00 p.m. at the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street.

I'll be discussing the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

The issue now before the Court is whether the Ninth Circuit correctly concluded that property owners who contested the EPA's Clean Water Act jurisdiction could do so only in the course of an EPA enforcement action, and could not seek immediate judicial review of whether their property was even subject to the EPA's authority. Sackett v. EPA, 622 F.3d 1129 (9th Cir. 2010).

The Supreme Court granted cert to review these questions:

1.  May Petitioners seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U.S.C. § 704?

2.  If not, does Petitioner' inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?

We will talk about the case, the arguments of the parties and amici (the State of Hawaii joined an amici brief in support of the property owners), and what the Court might do. Please join us and bring your questions. Non-members are welcomed to join on a space available basis.

Brigham-Kanner Property Rights Conference - "Mere Mortal" Professor Richard Epstein on "Going Red on Property Rights"

Law professor Richard Epstein was a featured speaker (and past Brigham-Kanner prize winner) at the recent B-K Property Rights Conference in Beijing. He's summarized his thoughts and insights in "Going Red on Property Rights," posted at the Hoover Institute's site. He writes:

Earlier this month, I attended a Chinese-American Conference in Beijing on property rights co-sponsored by the William and Mary Law School and the Tsinghua University Law School.  One purpose of the conference was to award in absentia the Brigham-Kanner Prize to retired Justice Sandra Day O’Connor for her contributions to understanding the law of property. The intensive two-day discussions on property rights were open, animated, and cordial. They also revealed deep ironies in both the Chinese and American approaches to property rights.

The entire piece is well worth reading. All of our posts on the B-K Conference are collected here. I'm writing my wrap-up of the Conference and will post it shortly.

In the meantime, I offer this little story.

A few of us are walking the 15 minutes from the hotel to the moot courtroom at the Tsinghua Law School, through the university campus. We cross the lightly traveled road, and most of us step up onto the opposite sidewalk. Professor Epstein, engrossed in conversation with another lawprof, doesn’t notice they are walking down the middle of the road, blocking traffic.

A few seconds later, a car comes up behind them.

In Beijing, pedestrians decidedly do not have the right of way.

"Get out of the road!" we call out.

Epstein slowly turns around, looks at the car, looks at us, and says with a smile, "sidewalks are for mere mortals."

(But he does get out of the road.)