Texans: now is a good time to register for the 24th Annual Texas Eminent Domain Superconference, March 27-28, 2025, at the Austin Country Club in Austin.
We spoke at the Conference a couple of years agolast year and in other editions, and can report that it is excellent. Check out the faculty and agenda
Lawprof Timothy Mulvaney has published “Reconceptualizing ‘Background Principles’ in Takings Law,” 109 Minn. L. Rev. 689 (2025).
If the title alone doesn’t grab your interest, here’s the summary from the article’s introduction:
Both libertarians and progressives rejoiced in the result reached by the Supreme Court in the 2023 matter of Tyler v. Hennepin County. This Article asserts that such unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the Constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the background principles of property laws endorsed by a majority of states rather than in those underpinning the laws of their own state.
Suspicious that the Court intended such a revolutionary upheaval of the state variations that have characterized our federalist system for more than two centuries, the Article contends that Tyler is better interpreted as an epic failure in judicial transparency: The opinion reflects a sly reticence to acknowledge the reality that resolving competing claims to property demands moral judgment regarding the background principles of property law. In following this deceptive course, Tyler invites a race to legislative homogeneity and erects a dangerous barrier to states’ abilities to innovate in the face of evolving social, economic, and environmental conditions.
Check it out.
Continue Reading New Article: “Reconceptualizing ‘Background Principles’ in Takings Law,” 109 Minn. L. Rev. 689 (2025)
Here’s the latest in a case we’ve been following. This is GHP Management Corp. v. City of Los Angeles, No. 24-435, the cert petition which asks whether a local ordinance which allowed non-paying tenants to remain in the lessor’s property is a physical taking, or merely the regulation of the lessor/lessee relationship under
We had the New Jersey Appellate Division’s opinion in Township of Jackson v. Getzel Bee, LLC, No. A-0590-23 (Jan. 31, 2025) in our queue to digest, when our colleague Joe Grather beat us to the punch with his analysis “Appellate Court Rejects Condemnation Due to Lack of Public Use or Purpose.”
So
Like a lot of residential communities these days, Foothills Reserve was developed under a master plan, and you know what that means … a homeowner’s association and CCRs (covenants, conditions, and restrictions).
The HOA owned common areas, in which the homeowners had easements under the CCR’s. A “positive” easement to enter and use the common
You should already know Short Circuit is the Institute for Justice’s frequently-updated podcast on important and interesting decisions from the federal courts of appeals (the “Circuit” part of the title, we assume).
If you are not already a regular listener you are missing out, because it is a fantastic and easy way to keep up
If you are looking for us tomorrow but we don’t respond, that’s because we’ll be in the audience in rapt attention at “Property Rights and the Roberts Court, 2005-2025” at the U.C. Berkeley Law School (fka “Boalt Hall”).
Here’s the description:
For much of the past century, property rights were relegated to second-class
In our earlier post today, we noted that on the same day last month, the U.S. Court of Appeals for the Fourth Circuit issued two published opinions about the admissibility of evidence in federal eminent domain cases under the Natural Gas Act.
In our post about the other case, we focused on
As the title should inform you, Mountain Valley Pipeline, LLC v. 0.32 Acres of Land, No. 23-1935 (Jan. 27, 2025) is a federal taking. Here, a taking where a private pipeline condemnor is exercising the delegated federal power of eminent domain under the Natural Gas Act.
The issue we’re focusing on in this
Students of the Supreme Court’s infamous-the-day-it-was-decided decision in Kelo v. City of New London know that the legal issue presented and decided by the Court was somewhat narrow, but that the decision had a broad cultural impact such that Susette Kelo’s SCOTUS 5-4 loss was merely a precursor to widespread political
