Update 7/24/2017: Here is our contribution to the article scene.
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Someone (I think it was Professor Ilya Somin [update: confirmed - he noted it here]) recently noted that if nothing else, the U.S. Supreme Court's decision in Murr v. Wisconsin will be a boon for law professors looking for something to fill up law journals. Sidebar: here's a link to some of the commentary so far on Murr.
And not only for lawprofs, we hope. Their stuff can be useful, but we think there's a need for those of us in the practicing Bar to contribute as well. We often complain that legal scholarship isn't of much use to us down in the trenches, so here's one chance to address that. Stop kvetching and start writing! I'll do my part, and am currently underway with an article that I anticipate will make three main points:
First, although I won’t spend much time deconstructing the majority’s three-factor test, I will suggest that it simply missed what should have been the center of gravity in the case, the “three unities” which courts regularly apply in eminent domain cases to determine whether the taking of one parcel results in damages to another. Application of this test to determine how much of the claimant’s property constitutes the denominator in regulatory takings cases—asking whether the plaintiff uses multiple parcels together, whether the parcels are titled jointly, and whether they are physically close—would place the emphasis in all takings cases—both straight and regulatory—where it should be: on objectively measurable evidence that the owner uses two or more parcels together as a single economic unit.Second, I argue that the Supreme Court’s adoption of a vague, difficult-to-apply test for takings claims under the Fifth and Fourteenth Amendments does not constrain state court from applying the three unities test under their respective state takings provisions. Property owners should concentrate their efforts there.Finally, I’m going to suggest that the one-Justice margin of victory in Murr, coupled with the Court’s denial of certiorari only four days later in another case presenting the same question (Lost Tree), indicates that the Murr factors are hardly set in stone, and could be modified by a different Court majority into a more understandable, practical, and workable rule, one based squarely in state property law.
Now, to just write the darn thing.
