Our Pacific Legal Foundation colleague Ethan Blevins has published the lead article in the latest edition of the Wake Forest Journal of Law and Policy, and it is on a subject that makes it a must-read for you takings mavens.
The title says it all: “Penn Central in the States.” How do
Check out this article, forthcoming in the George Mason Journal of Law, Economics, and Policy from lawprof Eric Claeys, “Takings and Choice of Law After Tyler v. Hennepin County.”
This is one of the pieces coming out of the recent symposium “Imaging the Future of Regulatory Takings” at George Mason Law School.
Here’s the Abstract:
This Essay contributes to a symposium on the future of regulatory takings. It focuses on choice of law in eminent domain disputes. When claimants bring eminent domain claims in federal courts, the courts must determine whether the claimants have constitutional “private property” in the entitlements allegedly taken. Should that determination be made with federal law, with the law of the state allegedly taking property, or law from some other source?
The 2023 Supreme Court decision Tyler v. Hennepin County addressed that issue. Under Tyler, it is a federal question whether an eminent domain claimant has constitutional private property. To answer the question, federal courts usually consult the law of the state where the alleged taking took place. But that presumption applies only if state law seems to secure and not to circumvent the federal right. And if that reservation is not satisfied, federal courts may consult a wider pattern of legal sources—Anglo-American history, the general law of the several United States, federal court precedents, and a broader cross-section of law from the state allegedly taking property. That approach resembles the approach taken generally for federal constitutional rights—especially in Indiana ex rel. Anderson v. Brand (1938)—but varies from the general approach in the sources it makes relevant to settle what counts as private property under the Fifth Amendment. This Essay interprets Tyler, and it offers a normative justification for Tyler’s approach to choice of law in eminent domain.
Don’t miss this one.Continue Reading New Article (Eric Claeys): “Takings and Choice of Law After Tyler v. Hennepin County”
Here’s what we’re reading this day:
Check this out, a just-published unsigned student piece: Note, “Taking Old Ladies’ Homes: A Comparative Exploration of Eminent Domain in Islamic Law,” 138 Harv. L. Rev. 841 (2025).
Not that we have any background to be able to evaluate the author’s assertions, but at the very least, the piece is very interesting (you
Check out, the latest from Professor Timothy Harris, “Revisiting Palazzolo: The Blurry Lines Between Ripeness and Standing that Enable Windfalls,” 73 Kan. L. Rev. 289 (2024). He dives into the question of whether an owner who acquires property already subject to regulations that allegedly work a taking may assert a claim, or does
Heads up law students and young lawyers: the American Bar Association’s Section of State & Local Government Law has called for submissions for its annual writing competition.
Topics which the Urban Lawyer publish pieces about include land use, takings, eminent domain, housing, RLUIPA, exactions … and more.
Here’s the announcement:
The State and Local Government
We’re starting off the new year with some eminent domain goodness. Tim Sandefur has published “Eminent Domain in the Constitutions of Arizona, Washington, and Other States,” 18 N.Y.U. J.L. & Liberty 167 (2024).
There’s a lot in the piece that will keep you reading, but what we found particularly insightful was how public use/purpose limitations “should operate in practice.” In our opinion, it’s fairly easy to say that the Fifth Amendment (and state constitutions) operate as a robust check on the sovereign power to take property for public use, but a lot more difficult to apply that broad notion to particular circumstances in a way that is both uniform and predictable. Right now, we seem to be operating on a know-it-when-I-see-it basis, but that doesn’t get us to a general rule. This piece goes a long way to getting us to a general rule.
Highly recommended.
Here’s the Abstract:
The nineteenth century was an extraordinarily prolific age of constitution-making. One of the greatest concerns of constitution-makers during this period—particularly in the western states—was the protection of private property against threats such as the use of eminent domain and the damage to property resulting from public works projects. This Article takes the eminent domain provisions of the Arizona and Washington constitutions as a point of departure to examine the innovative ways in which constitution-makers sought to limit government’s power to deprive people of their property. These constitutions—which until the admission of Alaska and Hawaii were the most up-to-date constitutions in America—contain four such innovations: (1) an explicit ban on takings for “private use,” reinforced by prohibitions on judicial deference regarding the definition of “public use”; (2) a compensation requirement for the “damaging” of property; (3) a requirement that payment precede a taking, and (4) a ban on deducting from just compensation awards the amount of purported “benefit” resulting from a taking. The Article traces the origins of these four protections, with reflections on how they should operate in practice.
For those of you who follow the wildfire/inverse cases (centered in, although not exclusively, California and Hawaii), you might want to check out this article by a fire engineer: Vytenis Babrauskas (aka “Dr. Fire“), “Electricity-Caused Wildland Fires: Costs, Social Fairness, and Proposed Solution.”
As the title suggests, the article is
The latest edition of the Brigham-Kanner Property Rights Journal (William & Mary Law School) is out, with intriguing Dirt Law scholarship from the luminaries in the field.
Check out the Table of Contents above, and then go here to download each piece or the entire issue. We will note, with a small bit of pride
Check this out, a new SSRN posting by lawprof Donald Kochan (George Mason/Scalia Law).
If this one is not a direct sequel to his earlier work on re-branding the “takings clause” (a piece we think is excellent and is part of the materials we teach in our Eminent Domain course at William and Mary Law), it does at least seem like a spiritual successor.
Here, Professor Kochan suggests that we’re being unclear when we use the term “regulatory takings” to describe those instances where an exercise of some governmental power other than eminent domain results in what feels like an eminent domain taking from the property owner’s viewpoint.
Instead, he argues, we should focus on the burdens the regulations place on an owner’s use (what the common law described as a servitude). To us, that seems very consistent with the Supreme Court’s approach, and proposals from other commentators. And it does focus the inquiry on the right question, namely what effect has a regulation put on an owner’s property rights. As that suggests, this should be a property-centric inquiry, and not on such unknowables such as the “character of the government action,” or whether an owner has “distinct investment-backed expectations.”
Here’s the Abstract:
This essay challenges the use of the term “regulatory takings” in our takings jurisprudence and scholarly discussion. The words we choose when developing doctrine matter. They can, even subconsciously, affect—by reducing, enlarging, distorting, limiting, or accurately shaping—the perceived and functional quality and character of the things they describe.
The better way to frame the inquiry underlying what is often called regulatory takings law should be to determine not whether there is a “regulatory taking” – some special kind of taking – but instead whether there is a regulation that amounts to a taking. Segmenting the judicial treatment of regulatory effects into a specialized analysis that takes it farther and farther away from an enterprise focused on equivalency between the private law of voluntary servitudes and the public law of what we should be calling involuntary regulatory servitudes. Regulations that restrict some but not all sticks in the property rights bundle should be characterized as the involuntary equivalent of the voluntary instrument, mechanism, or transfer that would have been necessary to achieve a parallel result. The essay proposes an alternative test for determining whether a regulation should be deemed a taking based on a comparison between the effect on the bundle from the regulation and determining whether the same effect in the private marketplace would have required a consensual, mutually beneficial exchange with appropriate compensation. This would better serve the meaning and purposes of the so-called Takings Clause.
The essay also documents the usage history of the regulatory takings label. To be sure, “regulatory takings” was not a dominate part of the takings lexicon before 1981. The first law review publication available in Westlaw to use the term “regulatory takings” is from 1965. The first court opinion to use the term came in a footnote in 1977. Briefing in advance of the 1980 U.S. Supreme Court decision in Agins v. Tiburon involved significant invocations of “regulatory takings” language across nearly a dozen briefs. But, the U.S. Supreme Court in its Agins opinion never uses the phrase “regulatory takings.” The first major court opinion to use “regulatory takings” language is the dissenting opinion by Justice William Brennan—joined by Justices Stewart, Marshall, and Powell—in the 1981 case of San Diego Gas & Elec. Co. v. City of San Diego. And, the Brennan dissent may have entrenched the term in the takings lexicon and is likely the impetus for widespread adoption of the term after 1981.
A must-read for all you takings…uh, dirt law…mavens.
Continue Reading New Article (Donald Kochan): “Involuntary Regulatory Servitudes: Correcting for ‘Regulatory Takings’ Terminological Problems”
