September 2025

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Just a few weeks ago, we were celebrating our 19th birthday, and our 5,000th post.

Then came the news that our long-time hosting service, Typepad, was shutting down on September 30, 2025, and that if we did not migrate the blog to a new host, it was going dark…permanently.

We have now found a new home: an old friend to legal blogs, LexBlog.

This is a behind-the-scenes fix, so from your side, you shouldn’t see any big changes. You can still find us on the web right here at inversecondemnation.com. For readers who follow along by email, you should continue to see posts showing up in your inbox via Feedblitz or now, LexBlog. Anyone still use RSS? If so, same.

Our content will also remain the same: takings, eminent domain, and property rights goodness.

… Continue Reading Never Gonna Give You Up, Never Gonna Let You Down

Here’s the cert petition which we filed recently. We won’t be saying much about this one because it is one of ours. 

But here’s the Question Presented, which pretty much says it all:

The City of Lathrup Village, Michigan, prohibits leasing commercial property without a license. But the City will not issue a license unless the property owner first discloses the names of prospective tenants and a description of the tenants’ principal business activity.

Petitioners omitted this information in a license application to comply with a nondisclosure provision in its lease agreements, were denied a license, and are therefore prohibited from renting their property. They sued under 42 U.S.C. § 1983, challenging the disclosure requirement as an unconstitutional “Law impairing the Obligation of Contracts.” U.S. Const. art. I, § 10.

The Sixth Circuit, joining the Fourth, held that “an alleged Contracts Clause violation cannot give rise to a cause of…

Continue Reading New Cert Petition – Time To Resolve Contract Clause Circuit Split: Can You Raise A Claim Via Section 1983?

Be sure to check out the opinion of the Texas Court of Appeals (Fourteenth District) in Jones v. Port Freeport, No. 14-23-00948 (Sep. 18, 2025).

This is a challenge to the Port’s attempt to take property in an historic African-American community, with the stated purpose of the taking being “expansion of the Port Facilities” and “the development of business industries.” Slip op. at 3. The owners objected, asserting that there’s gotta be a plan. Or at least a better plan than that.

… Continue Reading Tex App: No Plan, No Public Use, No Eminent Domain: “I’m from the [Port], and I’m here [for a public use]” Is Not Enough

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Here’s a case that isn’t about takings and our usual fare, but is nonetheless an example of how dirt law can be fascinating.

In Hilo Bay Marina, LLC v. State of Hawaii, No. SCAP-23-0000310 (Sep. 12, 2025), the Hawaii Supreme Court held that a restriction in a land patent issued by the State of Hawaii’s predecessor-in-interest (the Territory of Hawaii) in 1922, that limited the uses of the land to “Church purposes only” cannot be enforced under the state constitution’s establishment clause.

… Continue Reading Restriction In Gov’t-Granted Deed Limiting Uses To “Church purposes” Can’t Be Enforced

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  • Vicki Been, Judge Edward Weinfeld Professor of Law and Co-Director, Furman Center for Real Estate & Urban Policy, NYU School of Law
  • James Burling, Vice President of Legal Affairs, Pacific Legal Foundation
  • David L. Callies, Benjamin A. Kudo Professor of Law, Emeritus, Richardson School of Law, University of Hawaii
  • James W. Ely, Jr., Milton R. Underwood Professor of Law, Emeritus, Professor of History, Emeritus, Vanderbilt University
  • Lee Anne Fennell, Max Pam Professor of Law, University of Chicago Law School
  • M. Nolan Gray, Senior Director of Legislation & Research, California YIMBY

In addition to the Friday speaking panels, on Thursday, October 23, the William and Mary Law School Real Estate Law Society (a student organization) is presenting a “re-argument” of the Supreme Court arguments in Kelo v. New London, in recognition of that case’s twentieth anniversary. Arguing for Susette Kelo will be her lawyer in the real case, the Institute for Justice. The Justices will be property law professors and eminent domain practitioners. 

Will the Moot Supreme Court reach a different outcome with the benefit of two decades of experience and hindsight? This event is open to the public, so please join us and find out! 

… Continue Reading 2025 Brigham-Kanner Property Rights Conference Speakers

Several years ago, Owners’ Counsel of America endowed a scholarship in the name of its founder, property rights advocate and trial lawyer Toby Prince Brigham (1934-2021). The scholarship is for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in Savannah, Georgia, January 22-24, 2026).

The Conference affords the Scholar an all-expenses-covered opportunity to meet and network with leading property rights and eminent domain lawyers from across the country, while also learning about property law and practice. 

Here’s the official description and how to apply from OCA:  

The scholarship funds the selected student’s travel, lodging and attendance at the premier property rights conference in the country, known as the ALI-CLE Eminent Domain and Land Valuation Litigation conference, and associated OCA events held annually in late January/early February. This distinctive opportunity is designed…

Continue Reading Apply Now: Owners’ Counsel Scholarship (ALI-CLE Conference)

On the day we celebrate Constitution Day (or should we say Khaaaaan-stitution Day?) we have to admit that pretty much nothing beats One Named Kirk’s reading of the Preamble. 

KIRK: This was not written for chiefs.

Hear me! Hear this! Among my people, we carry many such words as this from many lands, many worlds. Many are equally good and are as well respected, but wherever we have gone, no words have said this thing of importance in quite this way. Look at these three words written larger than the rest, with a special pride never written before or since. Tall words proudly saying We the People.

That which you call “Ee’d Plebnista” was not written for the chiefs or the kings or the warriors or the rich and powerful, but for all the people! Down the centuries, you have slurred the meaning of…

Continue Reading “This Was Not Written For Chiefs!” – Happy Constitution Day 2025

When government enters the pharmaceutical market as a participant, it naturally changes the dynamics. But when Congress does this, is it a taking? 

Medicare Part D is a voluntary prescription drug benefit program for Medicare beneficiaries. When Congress first created Part D in 2003, it barred the Centers for Medicare and Medicaid Services (“CMS”) from using its market share to negotiate lower prices for the drugs it covers. But Congress changed course when it enacted the Inflation Reduction Act of 2022 (the “IRA”). The IRA includes a Drug Price Negotiation Program (the “Program”) that directs CMS to negotiate prices over a subset of covered drugs that lack a generic competitor and represent the highest expenditures to the government.

In Bristol Myers Squibb Co. v. U.S. Dep’t of Health & Human Svcs., No. 24-1820 (Sep. 4, 2025), the U.S. Court of Appeals for the Third Circuit held no, it…

Continue Reading CA3: Statute That Leverages Govt Power To Drive Hard Bargains Isn’t A Taking
Darby

Here’s the latest in a case we’ve been following.

The federal government has asked (and been granted), an extension of time in which to file a cert petition in the Darby case.

That’s the one in which the U.S. Court of Appeals for the Federal Circuit allowed a claim that the federal government is liable for a physical taking for the Center for Disease Control’s residential eviction moratorium. The U.S. Supreme Court eventually invalidated the moratorium, and several property owners who were prevented from removing tenants are seeking just compensation. 

There’s nothing particularly earth-shattering about the government seeking more time. Indeed, it is rather routine. But the request included a somewhat unusual peek behind the Solicitor General curtain. We suppose the SG could have just asked for more time, and it would have been granted. But the request included an indication that there’s a bit of contention within…

Continue Reading Is A Gov’t Cert Petition In Darby (Eviction Moratorium Physical Takings) Forthcoming?
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Who likes paying a lot for prescription medications? Anyone?

Oregon sure didn’t like it, and it was going to do something about it. In 2018, it adopted a statute the “Prescription Drug Price Transparency Act,” which requires manufacturers to report to the State information about costs, revenues, and prices of certain prescription drugs. The Act also requires the State to disclose, in the public interest, much or all of that information to the public, provided that information is not a trade secret. Oregon has not actually disclosed any trade secrets. 

An industry association (PhARMA) sued, asserting inter alia, a facial takings claim. The District Court granted PhRMA summary judgment, concluding that the publication of trade secrets under the public-interest exception is a taking requiring compensation.   

In Pharmaceutical Research and Manufacturers of America v. Stolfi, No. 24-1570 (Aug. 26, 2025), the U.S. Court of Appeals for the Ninth…

Continue Reading CA9: Pharma Has No Expectation Of Nondisclosure, So State Disclosing Trade Secrets Is Not A Penn Central Taking