As we wrote up here, national zoning and planning expert Nolan Gray joined our U. Hawaii Land Use class (and the public) last week for a talk about whether zoning is an impediment to affordable housing in Hawaii.
Thank you to Grassroot Institute of Hawaii for recording the talk, as well as making Mr.
The session was recorded.
Here’s the video and audio.
Earlier this week, planner M. Nolan Gray, author of the new book, “Arbitrary Lines: How Zoning Broke the American City and How to Fix It” (Island Press 2022) joined our Land Use class at the University of Hawaii Law School to talk
We thought this fellow has “authority over all fish.”
By statute (the Magnuson-Stevens Act), the feds claim the sovereign right to exclusive fishery management and “authority over all fish” in the U.S. Exclusive Economic Zone, a zone “extending 200 nautical miles from the baseline[.]”
The question facing the U.S. Court of Appeals for the Federal
Here are the opinions that we spoke about this afternoon at the Land Use Institute on “The Use of Eminent Domain for Redevelopment & Economic Development Projects.”
Check this out, a new piece by lawprof Molly Brady, “The Illusory Promise of General Property Law,” 132 Yale. L.J.F. (2023 forthcoming).
If the title alone isn’t enough to grab you, here’s the abstract:
In The Fourth Amendment and General Law, Danielle D’Onfro and Daniel Epps endorse an approach to the Fourth Amendment that defines the scope of protection largely by reference to “general property law”—uniform principles of trespass, abandonment, and so forth—discerned from and informed by the customs and rules of multiple jurisdictions. While their approach attractively reasons from useful common-law and private-law concepts, the specific general-law model they outline has both unresolved internal puzzles and unaddressed external effects.
In this Response, I probe this vision of “general law,” which has the potential to be more open-ended and unconstrained than the general law as it has previously been understood. Even if it did more closely resemble traditional general law, a court’s resort to making general law in a particular context is typically justified by some federal interest or power meriting the application of uniform rules. The authors do not satisfactorily explain that need here, especially given traditional deference to positive state law—and the desirability of some variation reflecting local conditions and expertise—in matters involving property questions in other areas of constitutional law. Further, in justifying reliance on the general law, the authors over-sell its determinacy and stability vis-à-vis existing Fourth Amendment law, which assesses whether an individual’s “reasonable expectations of privacy” have been violated. Given the vagaries of some common-law standards and the breadth of the sources of general law, courts will still be faced with unclear choices within and among them. The general-law approach does not offer guidance on resolving these conflicts and uncertainties, dooming it to the same indeterminacy.
To illustrate with specific examples, I turn to a doctrinal area where the pitfalls of general law—and specifically, general property law—can already be observed: in recent decisions under the Takings Clause of the Fifth Amendment. Decisions interpreting the Takings Clause traditionally “emphasiz[ed] the role of nonconstitutional state property law in defining both what counts as constitutional property and in measuring whether a taking has occurred.” The presumption of deference to state-specific property principles was grounded in a belief that property is an inherently local matter and that different states might opt to recognize and regulate property interests differently. However, two Supreme Court decisions within the last five years—Murr v. Wisconsin and Cedar Point Nursery v. Hassid—have unsettled that longstanding tradition with troubling effects. Takings law also teaches that decisions by courts in federal constitutional cases can influence the direction of nonconstitutional state private law, even though that result is not compelled.
There is an approach that would carry some of the benefits of the general-law model while leaving most of the development of property law to the states. In articles covering the Due Process and Takings clauses, Thomas Merrill has advocated for a “patterning definition” of constitutional property—a set of federal criteria that are met (or not) by the characteristics an interest has under nonconstitutional state law. The idea behind patterning is to provide a baseline, uniform constitutional standard across the states—one of the key purported advantages of the general-law model over the positive-law one—without having courts make a confusing national law of property specific for federal purposes. While private law can helpfully frame and elucidate Fourth Amendment problems, the general-law model offers limited promise for the development of Fourth Amendment doctrine while posing unwarranted risks for the viability of variable state property law.
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Continue Reading New Article: Maureeen Brady, “The Illusory Promise of General Property Law”
“But we had to eat.”
So begins the Washington Supreme Court’s opinion in Washington Food Industry Ass’n v. City of Seattle, No. 99771-3 (Feb. 9, 2023), wherein the court held that a takings challenge to Seattle’s ordinance requiring Co-19 combat pay for food delivery workers may proceed.
There’s a lot in the opinion about
The Registrar would not accept our suggestion
to change the course description to “Dirt Law”
This spring, starting mid-January we’ve been back in a law classroom, this time at one of our law almae matres, the University of Hawaii School of Law in Honolulu.
The course is Land Use Management and Control, and
We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past
Here’s the latest in a case we’ve been following since its inception.
The U.S. Court of Appeals for the Second Circuit has affirmed the Eastern District of New York’s 12(b)(6) dismissal of a complaint alleging that New York (state)’s sweeping amendments to its Rent Stabilization (rent control) statute effected physical and regulatory takings.
First
Land users: come join us online for the 36th Annual Land Use Institute. Yes, the venerable program is back again, with the usual line up of dirt law experts covering all you need to know and bringing you up to speed on the latest. Here’s the description of the program:
This Annual Land Use Institute