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Here’s the latest in an issue we’ve been following.

In Alban v. United States, No. 23-1363 (Dec. 22, 2025), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’s judgment concluding that the failure of the Corps of Engineers to properly operate two dams, which resulted in upstream flooding when Hurricane Harvey struck was a “permanent” taking.

The dams were built nearly 100 years ago to reduce downstream flood risks. The reservoirs are usually dry, and fill up when it rains a certain amount. At the time of construction, the Corps considered acquiring property which would be inundated when the reservoirs filled up to a certain level, but ultimately decided to not do so. The Corps made the decision to acquire only the properties predicted to be flooded in smaller storms. The Corps understood that flooding of additional property was predicted in more…

Continue Reading CAFED: Like We Said Before, “Inevitably Recurring” Flooding Is A Taking

The U.S. Court of Appeals for the Ninth Circuit’s opinion in Epic Games, Inc. v. Apple, Inc., No. 25-2935 (Dec. 11, 2025), isn’t one the typical readers of this outlet might notice.

After all, it’s mostly about a tech company beef, as the caption might indicate. And the opinion is about one aspect of that beef, where the district court ordered Apple to do something, and then … it didn’t. As the opinion summary details:

After a bench trial, the district court enjoined Apple from certain anticompetitive business practices related to its App Store, and this court affirmed the injunction. Apple claimed to comply with the injunction, but it instead prohibited App Store developers from using buttons, links, and other calls to action without paying a prohibitive commission to Apple, and it restricted the design of the developers’ links to make it difficult for customers to use them.

Slip…

Continue Reading CA9: District Court’s Contempt Order Isn’t A Judicial Taking

When an opinion starts off with “[t]his zoning/inverse condemnation case revolves around the availability of parking…” you kinda know, whatever the issues might be, that the court isn’t likely headed in a good direction for the claimant.

That’s exactly how the Supreme Court of South Carolina began The Gulfstream Cafe, Inc. v. Georgetown County, No. 28303 (Oct. 29, 2025).

The bottom line is what you might expect, given that opening. The court rejected the takings and due process claims by a restaurant located in a special development district that the County’s permitting another restaurant to set up nearby violated the first restaurant’s rights.

The essence of the takings claim is that Gulfstream Cafe (the first restaurant) has been there for quite a while, and has an easement to allow its diners to use certain parking spaces. For many years, things worked out: the adjacent building housed a marina business…

Continue Reading South Carolina: Restaurant Was Not Taken When County Permitted Another Adjacent Restaurant
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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

Here’s one from the U.S. Court of Appeals for the Federal Circuit, involving ERISA (yikes!), which is the comprehensive federal regulatory framework for employer-provided pension plans, and takings.

In King v. United States, No. 23-1956 (Aug. 8, 2025), pensioners challenged Congress’s 2014 reduction of benefits as a taking, alleging both physical and regulatory theories. As you might expect, there’s a lot going on in this area, and there’s enough ERISA goodness in this opinion to satisfy the most committed maven. Check out pages 3-8 for a pension primer. (And here you thought takings is a complex area.)

The short story is that in 2014 after it “became concerned about the fiscal health of many of the nation’s multiemployer pension  plans,” slip op. at 9, Congress amended ERISA to deal with the actual or threatened insolvency of multiemployer pension funds. What happens if a pension is obligated to pay, but…

Continue Reading Fed Cir: Reducing ERISA Pension Benefits Was Not A Taking

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That’s right, it’s time to plan on joining us at the 22d edition of the best one-day property law conference, William and Mary Law School‘s Brigham-Kanner Property Rights Conference.

As we noted, Professor William Fischel will be awarded the 2025 Brigham-Kanner Property Rights Prize at the annual Wren Building candlelight ceremony in Williamsburg on October 23, with the following day being devoted to a celebration of his work and career, and discussions of the hot topics in property rights law.

The Conference is expressly designed to get legal academics and the nation’s best dirt law practitioners in the same room, discussion how legal scholarship and law practice work hand-in-hand to shape the law. 

More details:  

The Brigham-Kanner Property Rights Prize is presented annually to a scholar, practitioner, or jurist whose work affirms the fundamental importance of property rights. It is named in honor of the late Toby Prince…

Continue Reading Registration Open: 22d Brigham-Kanner Property Rights Conference, Oct. 23-24, 2025, Williamsburg

Here’s the latest in an issue we’ve been following.

In Fletcher Properties, Inc. v. City of Minneapolis, No. A23-0191 (July 30, 2025), the Minnesota Supreme Court held that the city barring owners from refusing to rent residential properties to a prospective tenant because the applicant is on public assistance is not a taking. 

What is colloquially known as “Section 8” is a federal program “that provides rent subsides to eligible families … to help them pay for housing in the private market.” Slip op. at 2. This is a voluntary program, both for the tenant receiving the assistance as well as the lessor who enters the program by contracting with the public housing authority.

The City of Minneapolis added discrimination based on a tenant’s receipt of Section 8 assistance to the list of forbidden reasons for refusing to rent to a prospective tenants such as “race, creed, religion, ancestry…

Continue Reading Minnesota: Requiring Landlords To Rent To Tenants On Public Assistance Is Not A Taking

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

In Englewood Hospital & Medical Center v. State, No A-16-24 (July 16, 2025), the New Jersey Supreme Court rejected physical and regulatory takings claims made by hospitals which are required to treat nonpaying patients even though the Medicare reimbursements available will not cover the hospitals’ costs. 

Here’s the bottom line:  

Under the facts as presented in this case, we hold that charity care is not an unconstitutional “per se” physical taking of private property without just compensation. It does not grant an affirmative right of access to occupy hospitals; it does not give away or physically set aside hospital property for the government or a third party; and it does not deprive hospitals of all economically beneficial use of their property. We also hold that charity care is not an unconstitutional “regulatory” taking of private property without just compensation.

Continue Reading NJ: Forcing Hospitals To Lose Money To Treat Nonpaying Patients Isn’t A Taking

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Last year, we attended a conference devoted to the future of regulatory takings, hosted by the Antonin Scalia School of Law (George Mason U), and Pacific Legal Foundation.

The publisher, the Journal of Law, Economics, and Policy has released the articles and essays from that conference, and made them available here. 

Here’s the list of articles:

  • Michael M. Berger, Juries for Takings Liability: Treating Litigants Alike
  • Ethan W. Blevins, Cyber Takings: A Preliminary Study of Regulating Takings of Virtual Spaces
  • Eric R. Claeys, Takings and Choice of Law After Tyler v. Hennepin County
  • Emily Cruikshank Bayonne and Wesley M. Davenport, Counting Costs: the Institutional Effects of Regulatory Takings
  • Emily Hamilton and Charles Gardner, Legislative Responses to the Regulatory Takings Conundrum
  • Brian T. Hodges and Deborah J. La Fetra, Sheetz v. County of El Dorado: Legislatures Must Comply With the Takings Clause
  • Donald J. Kochan, Involuntary Regulatory Servitudes:

…
Continue Reading New Property Rights Symposium Published – “Too Far: Imagining the Future of Regulatory Takings”