Property rights

Be sure to check out this student note which criticizes the Second Circuit’s approach to pretextual takings in Brinkmann v. Town of Southold, 96 F.4th 209 (2d Cir. 2024), and offers a different way to analyze cases in which the government’s stated public use doesn’t appear to be its actual use or purpose for exercising eminent domain. …
Continue Reading New Must-Read Article: Anna Fein, Pants on Fire: How the Brinkmann Majority Forgot About the Takings Clause in a Takings Clause Case, 99 S. Cal. L. Rev. 405 (2025)

Here’s the latest (a development we predicted) in a case we’ve been following. In this Order, the U.S. Court of Appeals for the Eleventh Circuit confirmed that it will be rehearing the Fulton case en banc. As you recall, last year a 2-1 panel of the court held that an owner whose property has been taken does not need Congress to have created a cause of action, and may directly sue for just compensation under the constitution. That’s right, the “self-executing just compensation” issue that the Supreme Court dodged in DeVillier.
Continue Reading En Banc CA11 To Consider Self-Executing Just Compensation

Hawaii has a unique status among American states. It is the only state that once was a separate sovereign nation, the Kingdom of Hawaii and then its short-lived successor, the Republic of Hawaii. Yes, we know that Texas may lay claim to the whole six-flags thing, so maybe the more accurate statement would be that Hawaii is the only state that was a sovereign kingdom, ruled by royalty.
Continue Reading If A King Must Comply With “Every Form And Particular” In Eminent Domain, Then Today’s Condemnors Also Surely Must

In an historic win for property owners in California, in Shear Dev. Co., LLC v. California Coastal Comm’n, No. S2284378 (Apr. 23, 2026), the unanimous California Supreme Court held that the Coastal Commission–which we can say without exaggeration is the most unaccountable and out-of-control agency in the nation–overstepped its authority when it purported to override a municipal government’s approval of a building permit. [Barista’s note: our firm represents the prevailing property owner in the case, and the head of our Coastal Property Rights group, Jeremy Talcott is lead counsel.]…
Continue Reading California Supreme Court Reins In The Most Unaccountable Agency In The Nation, The California Coastal Commission

Here’s Pacific Legal Foundation’s motion asking the Virginia Supreme Court to allow us to file a brief amicus curiae which urges the court to grant a discretionary appeal and review this Petition for Appeal by a Norfolk, Virginia homeowner who, according to the trial court, suffered a taking but was prevented from presenting all evidence of just compensation, including the “residue damage” required in partial takings by the Virginia Constitution. …
Continue Reading Virginia Supreme Court Amicus: There’s A Difference Between Constitutional “Damagings” And Severance (Residue) Damages In Takings Just Compensation

Check it out, the latest volume of the Brigham-Kanner Property Rights Journal is now available, both in print for those who subscribe, and online for those who prefer the pdf versions. The pieces include something property rights for everyone: academic property, Supreme Court property practice, Contracts Clause, Zoning and Land Use, and Fourth Amendment.
Continue Reading Brigham-Kanner Property Rights Journal Vol. 14 Now Available

When you think of “Vermont roads,” the first images that might come to mind are mountain byways, covered bridges, and “highways” that elsewhere might qualify as backroads. All the above is prelude, because it is here along I-95 south of White River Junction, that today’s story lay. Romaine Tenney was one of those classic Vermonters. He entered the pages of history more than fifty years ago when, in reaction to the taking of his farm for Interstate 91, he burned his house and farm buildings down, and shot himself. He had nowhere else to go. …
Continue Reading Romaine Tenney Lives: “They Stole His Land and Gave Him No Choice!”

Check out this cert petition filed yesterday. It’s from our shop, so we’re not going to be commenting much. The issue is one that the Supreme Court has expressed an interest in, but the last time it was before the Court a few years ago, the Justices decided to wait for the next case. Well, here’s the next case.
Continue Reading New Cert Petition: Do Indian Tribes Have Greater Sovereign Immunity Than Other Governments?

Check it out, an in-progress piece from lawprof Molly Brady, “Property v. Guns: The Level-of-Generality Problem in Wolford.”

This delves into the issue we posted about last week, the Second Amendment and the right to exclude, an issue argued recently before the U.S. Supreme Court.
Continue Reading New Article (Lawprof Molly Brady): “Property v. Guns: The Level-of-Generality Problem in Wolford”