Another law review article worth reading. This one from lawprof Dave Owen, is about “The Realities of Takings Litigation” (forthcoming BYU Law Review). That title certainly got our attention – any time a law journal article is about ‘reality’ and takings, and includes empirical research, we’re going to read it.
Here’s the
Be sure to check out the latest article from takings scholars and Nestor Davidson and Tim Mulvaney, “Takings Localism,” 121 Colum. L. Rev. 215 (2021) (pdf here).
Here’s the abstract:
Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.
Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local one.
Despite the centrality of local democracy to takings, state legislatures have restricted local authority on property issues in a range of ways. States have expanded compensatory liability for owners facing local regulations, imposed procedural constraints on local authority, and limited the exercise of foundational local powers. Seen in its entirety, this state intervention—like contemporary “new preemption”—is acontextual and unduly rigid, cutting at the heart of the devolutionary principles underlying takings jurisprudence.
This unbalanced state role requires a recalibration of decisionmaking power between state and local government to foster intersystemic dialogue and reflection. States certainly play a crucial role in defining and protecting property interests, but they must justify choices to constrain local discretion when state and local values conflict. The extant state statutory regime dispenses with this justificatory task via a formalistic disregard for the contextualization that legitimates vertical allocations of authority. A corrective to decades of imbalance in state ordering of local authority would thus properly recognize “takings localism.”
Free up local governments, or tie their hands…which is better? After reading this, you decide.
Continue Reading New Article: “Takings Localism” (Tim Mulvaney & Nestor Davidson)
It takes a bit of work to work your way through the Arizona statute being challenged in the U.S. Court of Appeals’ opinion in CDK Globall LLC v. Brnovich, No. 20-16469 (Oct. 25, 2021). But we recommend you read the opinion and do the work nonetheless, because it tells us something about the way
“This year, the Northwestern University Law Review presents a symposium on property and inequality, which brings together scholars of legal history, property, tax, land use, fair housing, environmental law, natural resources and water rights, family law, education, and constitutional law, to highlight new scholarship at the intersection of these fields.”
Here’s one that has been on our radar for a while (we filed our amicus brief nearly two years ago). So long ago that it was the final case that remained on our docket from our time in private practice. It’s not even about takings (but we’re posting it anyway as one of those
This is one post I wish I didn’t have to write. I recently learned that long-time colleague, friend, and kindred spirit Jim Mee passed away in September.
Jim was one of the good guys, a true giant in the Hawaii land use and eminent domain Bar. His accolades are many, his list of professional accomplishments
There’s not a lot of direct takings love in the U.S. Court of Appeals for the Second Circuit’s opinion in Melendez v. City of New York, No. 20-4238 (Oct. 28, 2021), but there’s enough there that you might want to read it anyway.
Because the opinion resurrected the plaintiffs’ Contracts Clause claim. You heard
We thought we posted the U.S. Court of Appeals for the Sixth Circuit’s recent opinion in a takings case, Golf Village North, LLC v. City of Powell, No. 20-4177 (Sep. 23, 2021), earlier, but a search of the blog reveals we did not, so here we go.
The City built a new 23-acre
Please plan on joining us next Wednesday, November 3, 2021, at 8pm ET for the next gathering of the Eminent Domain and Right of Way Club, a social media gathering spot “geared toward right of way professionals as well as anyone interested in the acquisition of land rights for infrastructure projects.” Register for the
LUI Co-Chair Prof. Frank Schnidman introducing the faculty
Here are the links to the cases and issues that we just finished speaking about at the 35th Annual Land Use Institute (more information on the LUI here). Today was day 1 of a multi-day remote program and the sessions are available ala carte, so there’s still