Uncategorized

Subscribe to Uncategorized via RSS

In an earlier post, we covered the highlights of 2025.

There are quite a lot to choose from, but here’s our curated list of the year’s lowlights. As in our highlight list, we’re affirmatively omitting cases in which we had a hand.

Here we go:

Cert Denial of the Year: GHP Management Corp. v. City of Los Angles, No. 24-435 (U.S. June 30, 2025). We include this one because there’s a clear circuit split, and the lower courts’ misapplication of the Yee theory (forbidding or delaying a lessor from recovering possession should not be analyzed as a physical invasion taking, but is treated as a mere regulation on use because the lessor voluntarily opened the property to the offender) continues, mostly because the Supreme Court hasn’t acted.

Worst Regulatory Takings Case of the Year: Green Room LLC v. State of Wyoming, No. 24-853 (10th…

Continue Reading Adieu To The Highs And Lows Of 2025 (Part II: The Lows)

It is time to bid farewell to the Year 2025, and our mind wanders back over the last 364 days in an attempt to ascribe meaning, a theme — a vibe — to the year that was.

Scientists tell us that this is just another trip around the Sun, but we humans like to assign meaning to a measure of time, so here’s our thoughts on what will stick with us about 2025.

Barista’s note: in the interest of objectivity, we shall exclude our shop’s cases such as this one: “Fla Ct App (en banc) In Takings Case: ”failing to vindicate a right expressly stated in the Constitution is not judicial restraint but judicial abnegation. That we must not do.'”

That said, here we go with what we think were the highlights of 2025 (lowlights are posted here in Part II).

Regulatory Takings Case of the Year:…

Continue Reading Adieu To The Highs And Lows Of 2025 (Part I: The Highs)

Remember back when we reported on our 100th Anniversary visit to the property in Pittston, Pennsylvania at the center of the seminal regulatory takings case Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)?

What we didn’t note was that the visit motivated us to seek approval for the placement of a roadside marker recognizing the significance of the property and the Supreme Court’s decision from the Pennsylvania Historical & Museum Commission.

We recently received word from the Commission that it has approved of a marker, which means that, at a future date to be set, the Commission will be placing one of those metal roadside marker. The Mahon marker, is one of the 45 markers approved by the Commission. These markers “commemorate significant people, places, events, and innovations … that tell the story of Pennsylvania’s rich and diverse history.”

We all know of the significance of the…

Continue Reading Landmarking A Landmark: Pennsylvania Coal v. Mahon Getting A Roadside Marker

This image has an empty alt attribute; its file name is BK-header-1-650x344.jpg

  • Vicki Been, Judge Edward Weinfeld Professor of Law and Co-Director, Furman Center for Real Estate & Urban Policy, NYU School of Law
  • James Burling, Vice President of Legal Affairs, Pacific Legal Foundation
  • David L. Callies, Benjamin A. Kudo Professor of Law, Emeritus, Richardson School of Law, University of Hawaii
  • James W. Ely, Jr., Milton R. Underwood Professor of Law, Emeritus, Professor of History, Emeritus, Vanderbilt University
  • Lee Anne Fennell, Max Pam Professor of Law, University of Chicago Law School
  • M. Nolan Gray, Senior Director of Legislation & Research, California YIMBY

In addition to the Friday speaking panels, on Thursday, October 23, the William and Mary Law School Real Estate Law Society (a student organization) is presenting a “re-argument” of the Supreme Court arguments in Kelo v. New London, in recognition of that case’s twentieth anniversary. Arguing for Susette Kelo will be her lawyer in the real case, the Institute for Justice. The Justices will be property law professors and eminent domain practitioners. 

Will the Moot Supreme Court reach a different outcome with the benefit of two decades of experience and hindsight? This event is open to the public, so please join us and find out! 

… Continue Reading 2025 Brigham-Kanner Property Rights Conference Speakers

Every year at this time, it seems, we realize once again that as you get older, you overlook birthdays. Time speeds up, or maybe slows down. Very Proustian.

Thus, it occurred to us only yesterday that that this blog’s “birthday” was looming and we almost let it slip by without notice.

It hardly seems like nineteen years ago today that we posted for the first time. In interweb years, that’s quite a while, even though we’re still in our teens. 

Thanks to you, our readers and contributors, we’re still here, and still going pretty strong over 5,000 posts and nearly two decades later. We can’t post every day, but we try to keep current.

It seems appropriate on our birthday to announce that although we’ve been hosted on one of the original platforms, Typepad, since the beginning, our host has recently announced it is shutting down.

Continue Reading They Say It’s Your Birthday, Well It’s Our Birthday Too: Entering Our Nineteenth Year (With Some Behind-The-Scenes Changes Coming)

001q

It’s not quite “Yes Virginia…” but here is our annual Independence Day missive on the legal angle on the Declaration. This may have special significance as the nation is in the process of reexamining many of our assumptions and history. But though the Founders may have been flawed individuals — as we all are — there’s really no question about the ideas they captured, and, thankfully, put down on for posterity.

—————————————————————————————

We know lawyers are easy targets (we enjoy lawyer jokes as much as the next person, i.e., What’s the difference between a good lawyer and a great lawyer? A good lawyer knows the law; a great lawyer knows the judge.).

Nonetheless, as we celebrate our independence, we note that author Thomas Jefferson and 23 other of the 56 signers of the Declaration of Independence were lawyers, and that the document was crafted and understood fundamentally

…
Continue Reading The Verified Complaint In Equity: The Declaration Of Independence, v.249

Programming note: On the weekend we’ve set aside to remember our nation’s war dead, we thought we’d repost this one, about how Arlington National Cemetery came to be, and how yes, there’s a takings story there.

———————————————————

LastbattlebookYou know how we’re always saying that the provisions in the Takings Clause are “self-executing,” that even in the absence of a waiver of sovereign immunity, the Tucker Act, and section 1983, property owners would still be able to maintain a claim for compensation? Well here’s an article that explains that how that rule was first articulated, and not in a dry academic way, but with a fascinating historical story.

It’s the tale of United States v. Lee, 106 U.S. 196 (1882). We knew the land that is now Arlington National Cemetery was once owned by Robert E. Lee, but we can’t say that we gave much thought to how it became

…
Continue Reading Memorial Day 2025: Arlington National Cemetery And Takings

Even if the world were open today, the doors to most Hawaii state, county, and city offices would still be locked. Because Friday, April 18, 2025 is the day that Hawaii celebrates Good Friday.

Yes, Good Friday is an an official state-sanctioned holiday in the 808 area code, so we’re reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that we don’t really commemorate Good Friday as the crucifixion date, and it is just coincidence that the official State “spring holiday” occurs on the same day. (And this being Hawaii, in the end it’s really a public worker union thing like a lot of things.)

Good Friday is a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1.

Continue Reading Today Is Hawaii’s Secular Good Friday Holiday (Go Shopping!) – What’s Up With That?