Here’s a cert petition in a case we’ve been following.
This is a water fight in California, and it asks a fundamental question: is the right to beneficial use of water a property right? The Federal Circuit held no, the federal government possesses that right, not these owners.
Continue Reading New Cert Petition: Are Water Rights “Property?”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
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?
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
Check out the U.S. Court of Appeals for the Ninth Circuit’s opinion in Garza v. Woods, No. 24-1064 (Aug. 25, 2025).
The court concluded that Arizona’s abandoned property statute is not a taking, because the State was not exercising or claiming some kind of ownership of abandoned property (as in those cases where abandoned property escheats to the government), but was merely holding it in trust until the owner claims it (or doesn’t).
Arizona’s Unclaimed Property Act allows the state to take possession of property that is “presumed abandoned.” Not a big surprise there, as our system of property is built on the assumption that the active user of property has better rights than the owner who neglects it (think adverse possession, for example). Arizona’s UPA deems property to be abandoned if an owner has not “indicated an interest” in that property for a period of time, usually one
Continue Reading CA9: Government Holding Your Unclaimed Property In Trust Isn’t A Taking (But It Might Be A Deprivation)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 TakingIf your brain goes full mobius strip when trying to figure out the California Court of Appeal’s rationale in Anaheim Mobile Estates, LLC v. State of California, No. G063421 (Aug. 13, 2025), you are not alone.
Here’s the bottom line in this facial challenge to a California statute that limits mobilehome parks located in two municipalities from increasing the rental rate more than 3% + cost of living (or 5%) and limits the number of times a long-term tenant may be subject to such increases: the court held that the absence of a mechanism to challenge the restriction on the grounds it does not provide a fair rate of return does not render the statute unconstitutional, because the challengers have not shown the statute does not provide a fair rate of return.
The park owner asserted that under California precedent, “a price control statute must have an individualized
Continue Reading Cal App: No Fair Return Procedures Required Unless You First Show Lack Of Fair Return“A brighter tomorrow is only a day away.”
So held the U.S. Court of Appeals for the Fifth Circuit in an important case, DM Arbor Court, Ltd. v. City of Houston, No. 23-20385 (Aug. 12, 2025).
The issue was whether the City of Houston’s denial of a rebuilding permit after a flood was a Lucas taking. De facto taking, regulatory taking, involuntary regulatory servitude. Call it what you will, the theory is the same. You mavens understand what that means: a regulation or other government action has deprived the property of all economically-beneficial uses. So even though the owner retains title and ownership, the lack of such uses means that from the owner’s perspective, the government might as well have taken the property by eminent domain.
The appraisers for the parties agreed that the denial of the permit “ended Arbor Court’s economic life.” Slip op. at 7.
Continue Reading CA5: Land Value From “Holding For Investment” (aka Speculation) Is Not An Economically-Beneficial Use
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
