The latest in a case we’ve been following, and this one is a double nerd whammy. The cert petition in RLR Investments, LLC v. City of Pigeon Forge, No. 21-703 (Nov. 15, 2021), seeks review of a Sixth Circuit decision in a takings case where the issue on appeal is whether the Rooker-Feldman
Digging A Hole Podcast Takes On Cedar Point Nursery…And Isocracy
Check it out: the “Digging a Hole” Podcast includes in one of its recent episodes a discussion of SCOTUS’s latest takings case, Cedar Point Nursery v. Hassid.
Our final guest for Season 3 is Nikolas Bowie, assistant professor of law at Harvard Law School and board member of the ACLU of Massachusetts, Lawyers for
New(ish) Article: “The Realities of Takings Litigation” (Dave Owen)
Another law review article worth reading. This one from lawprof Dave Owen, is about “The Realities of Takings Litigation” (forthcoming BYU Law Review). That title certainly got our attention – any time a law journal article is about ‘reality’ and takings, and includes empirical research, we’re going to read it.
Here’s the
New Article: “Takings Localism” (Tim Mulvaney & Nestor Davidson)
Be sure to check out the latest article from takings scholars and Nestor Davidson and Tim Mulvaney, “Takings Localism,” 121 Colum. L. Rev. 215 (2021) (pdf here).
Here’s the abstract:
Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.
Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local one.
Despite the centrality of local democracy to takings, state legislatures have restricted local authority on property issues in a range of ways. States have expanded compensatory liability for owners facing local regulations, imposed procedural constraints on local authority, and limited the exercise of foundational local powers. Seen in its entirety, this state intervention—like contemporary “new preemption”—is acontextual and unduly rigid, cutting at the heart of the devolutionary principles underlying takings jurisprudence.
This unbalanced state role requires a recalibration of decisionmaking power between state and local government to foster intersystemic dialogue and reflection. States certainly play a crucial role in defining and protecting property interests, but they must justify choices to constrain local discretion when state and local values conflict. The extant state statutory regime dispenses with this justificatory task via a formalistic disregard for the contextualization that legitimates vertical allocations of authority. A corrective to decades of imbalance in state ordering of local authority would thus properly recognize “takings localism.”
Free up local governments, or tie their hands…which is better? After reading this, you decide.
Continue Reading New Article: “Takings Localism” (Tim Mulvaney & Nestor Davidson)
CA9: Once You Open The Door For One, You’ve Opened It For Everyone
It takes a bit of work to work your way through the Arizona statute being challenged in the U.S. Court of Appeals’ opinion in CDK Globall LLC v. Brnovich, No. 20-16469 (Oct. 25, 2021). But we recommend you read the opinion and do the work nonetheless, because it tells us something about the way
Still Time To Sign Up For Northwestern L. Rev.’s Symposium: “Reimagining Property Rights in the Era of Inequality” (Friday, Nov. 12, 2021)
“This year, the Northwestern University Law Review presents a symposium on property and inequality, which brings together scholars of legal history, property, tax, land use, fair housing, environmental law, natural resources and water rights, family law, education, and constitutional law, to highlight new scholarship at the intersection of these fields.”
CA2: NYC’s Eviction Moratorium May Have A Contracts Clause Problem
There’s not a lot of direct takings love in the U.S. Court of Appeals for the Second Circuit’s opinion in Melendez v. City of New York, No. 20-4238 (Oct. 28, 2021), but there’s enough there that you might want to read it anyway.
Because the opinion resurrected the plaintiffs’ Contracts Clause claim. You heard
CA6: City Park Causing Public To Use Private Roads Not A Taking Because Owner Can Erect Roadblock
We thought we posted the U.S. Court of Appeals for the Sixth Circuit’s recent opinion in a takings case, Golf Village North, LLC v. City of Powell, No. 20-4177 (Sep. 23, 2021), earlier, but a search of the blog reveals we did not, so here we go.
The City built a new 23-acre
Links And Materials From Today’s Land Use Institute Takings/Eminent Domain Session
LUI Co-Chair Prof. Frank Schnidman introducing the faculty
Here are the links to the cases and issues that we just finished speaking about at the 35th Annual Land Use Institute (more information on the LUI here). Today was day 1 of a multi-day remote program and the sessions are available ala carte, so there’s still
New Article (Must-Read): Michael Berger, “Whither Regulatory Takings”
Here’s a new law journal article, just published, which we recommend everyone read.
Michael M. Berger, “Whither Regulatory Takings,” 51 Urban Lawyer 171 (2021). Available online here.
If you need encouragement to read it, here’s a sample:
The thrust of this article is severalfold. First, Holmes was right. His simple conclusion on