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Professor Kanner's Final Article: "Eminent Domain Projects That Didn't Work Out," 12 Brigham-Kanner Prop. Rts. J. 171 (2023)

Here it is -- Professor Gideon Kanner's final law journal article, published shortly before his passing:

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Prop. Rts. J. 171 (2023).

Appropriately, we think, published in William and Mary Law School's Brigham-Kanner Property Rights Journal, named in part in Gideon's honor.

This isn't a typical law journal article, but an essay collecting Professor Kanner's thoughts, comments, and (best of all) opinions on, well, eminent domain (and redevelopment) projects that didn't work out.

In Gideon's own words, from the Introduction:

But whether you favor widespread use of eminent domain or not, and whether the projects created by its use are sound or not, it is deplorable that the power of eminent domain has been often deployed to the detriment of racial and politically powerless minorities. Typically, redevelopment projects tend to displace middle class and poor people from their homes and businesses but provides parsimonious compensation that falls short of indemnity. The displaced people are limited by the courts to recovery of “fair market value” of their real property, which fails to include compensation for a variety of economic losses inevitably inflicted when people are involuntarily displaced. To add insult to injury, while talking glibly about indemnity, courts do not provide it and have not explained the reasons for this state of affairs. Too often they rely on factually unsupported lamentations—“fearful guesstimates” as one commentator put it—that full, realistic  compensation would be too expensive or even cause an “embargo” on public works, as the California Supreme Court once asserted.

What follows is a sampling of cases that failed to live up to their planners’ projections, including but not limited to redevelopment projects. The latter are particularly egregious because the linchpin of their success is a process of generating private gains for the private parties chosen to participate in those projects, while undercompensating the displaced populations of the areas targeted for redevelopment. Thus, the benefits, if any, of such projects are attained, if at all, on the back of condemnees, in violation of the principle that such costs should be fairly spread on members of the society that benefits from them and disproportionally imposed on people in the path of those projects.

Thank you to the editors of the Brigham-Kanner Property Rights Journal for publishing it, in its unfiltered form.

Disclosure: I helped edit the piece, and Gideon even asked if it was worthy of publication (as if!). He described it as his "last" article collecting his collective thoughts. Yes, I responded, let's work on this and get it out for everyone to read (although I was secretly hoping that was not his final work). One of our University of Hawaii Law School Land Use students, Pono Arias, even volunteered his time and efforts as Gideon's Research Assistant and tracked down citations, made helpful edits and suggestions, and got the piece ready to go. We're grateful for Pono's work on this, as was Professor Kanner.

So here it is, Professor Kanner's last publication. When you read it, I am sure that - like me - you will hear it in your head in Gideon's voice.

And that's a good thing.

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Property Rts. J. 171 (2023)...

Harvard Law Review On Tyler v. Hennepin County: Reflecting The "Diminishing" Role Of State Property Law In Takings

Check this one out, the Harvard Law Review's summary of Tyler v. Hennepin County, the "home equity theft" takings case decided unanimously by the Supreme Court.

Some highlights:

Beginning with traditional principles, Chief Justice Roberts suggested that a property interest in surplus equity had English origins — King John proclaimed in the Magna Carta that when collecting debts owed to him by a deceased person, any surplus “shall be left to the executors.” Parliament endorsed this principle, giving the Crown the power to seize and sell a taxpayer’s property to satisfy a tax debt but requiring the surplus to be returned to the original owner.And according to Blackstone, the English common law required the same.

So too did historic and contemporary American laws.

...

While the Tyler Court continued the trend of a robust Takings Clause, it introduced novel evidence of a taking: a lack of internal consistency in Minnesota’s statutory regime. The majority’s discussion of analogous statutory contexts (where a property owner has an interest in surplus equity) exemplifies the longstanding concern justifying the Court’s diminishing of the role of state law in takings jurisprudence — state legislatures manipulating property interests to insulate themselves from takings liability. It also suggests that ordinary judicial review of positive state law may better identify and correct legislative gamesmanship than an evaluation of history and tradition can. Indeed, courts searching state property law for contradictory treatment will make it harder for a state to manipulate property interests. Tyler’s internal-consistency requirement permits the Court to restore state property law’s primacy and avoids the complications associated with the Court’s current approach of a “jurisdictionless” property law.

As early as Board of Regents of State Colleges v. Roth in 1972, the Court has recognized state law’s crucial role in articulating the “rules or understandings” defining property interests. Yet, throughout the Court’s case law, a theme persists: a fear of gamesmanship and the possibility that affirming the importance of state law incentivizes states to insulate themselves from takings liability. The worry is that, left to its own devices, a state might “transform private property into public property” via legislative enactment or define a property interest so broadly as to render regulations paltry in their interference.

Pre-Tyler, this concern appeared overstated. In one of its more prominent opinions concerned with gamesmanship, the Court failed to cite any prior examples of a state “improperly . . . fortify[ing]” itself against takings claims by passing legislation that defined land parcels strategically. In fact, Chief Justice Roberts had once emphatically argued that in most circumstances, state law should define the relevant parcel to be considered in a takings claim, and that worries surrounding state gamesmanship were unfounded.

(Footnotes omitted.)

Check it out.

Fifth Circuit Kicks Down The SWAT Takings Door (And Boots The Issue Upstairs)

Here's the latest in a case and an issue we've been following.

Recall that the U.S. District Court for the Eastern District of Texas concluded that the City of McKinney, Texas was liable for the taking of Vicki Baker's home, after city police officers destroyed a large part of it while apprehending a suspect who had taken refuge therein. The court awarded just compensation and the city appealed.

Now, the other shoe drops: in Baker v. City of McKinney, No. 22-40644 (Oct. 11, 2023), the U.S. Court of Appeals for the Fifth Circuit reversed, concluding that because the invasion was necessary and a justified use of the city's police powers, it does not owe compensation.

We've been down this path before, so we won't go over it in detail (recall that the Tenth Circuit reached the same conclusion and the subsequent cert petition was denied by the Supreme Court). Our thoughts about the issue are in the amicus brief we filed in that case, in which we argued that an invocation of police power or necessity isn't dispositive or outcome-determinative. 

The Fifth Circuit has now joined the Tenth:

We conclude that, as a matter of history and precedent, the Takings Clause does not require compensation for damaged or destroyed property when it was objectively necessary for officers to damage or destroy that property in an active emergency to prevent imminent harm to persons. Baker has maintained that the officers’ actions were precisely that: necessary, in light of an active emergency, to prevent imminent harm to the hostage child, to the officers who responded on the scene, and to others in her residential community. Accordingly, and despite our sympathy for Ms. Baker, on whom misfortune fell at no fault of her own, we REVERSE.

Slip op. at 2.

The Fifth Circuit takes a slightly more nuanced view, rejecting the city's invitation to hold that any substantial police power reason would be enough to avoid the obligation to provide compensation. Instead, "the mere fact that Baker's property has been damaged or destroyed pursuant to the City's police power cannot decide this case." Slip op. at 8. So the government isn't categorically exempt. (Silver linings and all that.)

But the opinion also concluded that the worm doesn't turn in the property owner's direction either: "[w]hat Baker needs, in other words, is historical or contemporary authority that involves facts closer to those at bar and where the petitioner succeeded under the Takings Clause." Slip op. at 11. And apparently, there is "historically oriented legal scholarship" that shows that the "'necessity' or 'emergency' privilege has existed in Takings Clause jurisprudence since the Founding." Slip op. at 12. [Barista's note: our own contribution to the legal scholarship was somehow overlooked by the court - the nerve!]

Read the court's journey through the history for more. See slip op. at 12-17.

The bottom line: if the invasion by Five-O was necessary, then no taking. And here, Baker acknowledges that "it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons." Slip op. at 17.

But that's not the right question in these type of cases, is it? After all, the central question isn't necessity, but of cost spreading. The court acknowledged that the core vibe of takings is the Armstrong principle:

[T]he Supreme Court has often stated that “[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960), quoted in Tyler, 598 U.S. at 647. This statement’s relevance to Baker, who is faultless but must “alone” bear the burdens of a misfortune that might have befallen anyone, is manifest.

Slip op. at 18. In short, although it acknowledges that Baker alone is bearing the cost for a public good, the Fifth Circuit washes its hands of the most important question: is it just and fair that this is so? To the Fifth Circuit, history says yes.

And this leads to the opinion ending on what appears to be another silver lining, the Fifth Circuit seemingly inviting a cert petition asking what it views as the only court capable of making that call:

As a lower court, however, it is not for us to decide that fairness and justice trump historical precedent, particularly Supreme Court precedent, where it has long recognized a necessity exception that excludes those like Baker from the protection of the Fifth Amendment’s Takings Clause. Such a decision would be for the Supreme Court alone.

Id.

Will one be forthcoming? We sure wouldn't bet against it.

Baker v. City of McKinney, No. 22-40644 (5th Cir. Oct. 11, 2023)

Just Published - IRWA's "Summary of Major Eminent Domain Cases & Legislation: Jan 1, 2023 - June 30, 2023"

Thanks to our co-authors for the latest issue of this recurring update.

The International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States." (This is the "international" right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available.

The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to include us. Brad and Jillian wrote up more at the California Eminent Domain Report:

We recently had the pleasure of collaborating with Robert Thomas and Ajay Gajaria once again for the International Right of Way Association’s (IRWA) biannual report covering numerous eminent domain cases at local, state and federal levels from January through the end of June 2023. This report is an important resource and reference point for professionals in the right-of-way industry.

In the report, we also take a brief look at pending, adopted and failed legislation across the U.S., while also providing updates on federal funding and projects associated with the recent Infrastructure Bill. The report also includes summaries of a few notable cases in Canada.

The report is short, and doesn't have a lot of fluff. Just what you wanted.

Check it out.

"YIMBY Martial Law" - More On Hawaii Gov's Gordian Knot Cutting

Here's an excellent report on a situation we've been following, the Hawaii governor's proclamation of a housing emergency. In "To Tackle Highest Housing Costs in the Country, Hawaii's Governor Declares YIMBY Martial Law," Christian Britschgi at Reason writes:

Developers with a [Beyond Barriers] working group [what we cheekily referred to as the "Privy Council"]–certified project wouldn't have to comply with normal zoning restrictions. They wouldn't have to go through Hawaii's cumbersome environmental review process (which can add months or years to a project's approval). They could avoid historic preservation regulations, and get relief from normal impact fees and taxes. They could also skip the need to get approval from the state's Land Use Commission—a duplicative zoning body.

The story is an excellent summary of the substance of the emergency proclamation, the support and objections it has received, and some prognostication (including ours):

Thomas says that Hawaii courts have generally been unwilling to second-guess the governor's use of emergency powers. Numerous lawsuits challenging emergency proclamations during the pandemic all failed. "COVID taught us that [the state's emergency statute] is extremely robust," he tells Reason. "It is essentially a political question is how the Hawaii Supreme Court has treated it."

At the same time, Thomas does suggest that a court might look differently on the use of emergency powers to address something like Hawaii's housing shortage. "Maybe it's an emergency but it's one that's been festering for 50 years. It's been on the longest fuse one can imagine," he says.

A legal colleague of ours has a less sanguine view (or maybe we should say "a rather blunt assessment"):

Lawsuits challenging the order are almost inevitable, said one Maui land use attorney to Civil Beat. "There's no disagreement that we need more affordable housing. But using the state constitution as toilet paper isn't the right approach," he told the publication.

Strong letter to follow.

The Governor issued this emergency proclamation before the big wildfire on Maui. The Governor subsequently announced that for the next 60 days, the housing emergency proclamation efforts will be directed at Maui disaster recovery.

The big picture question we have is whether the Governor's declare-an-emergency-and- bypass-the-laws approach to Hawaii's housing shortage will spread to other jurisdictions. Co-19 taught a whole lot of government officials that emergency orders are the shortcut to getting what they want done.

Stay tuned.

New Article - "Necessity Exceptions to Takings" (Shelley Ross Saxer)

Worth checking out: a new article from Pepperdine Law School's Shelley Ross Saxer, published in the University of Hawaii Law Review, "Necessity Exceptions to Takings," 44 U. Haw. L. Rev. 60 (2022). [Disclosure: as noted in the author's note, we reviewed an earlier draft of the piece and provided some thoughts.]

Here's the Abstract:

The doctrine of necessity has strong roots in the common law of tort and property going back hundreds of years. In the United States the doctrine has been applied in various situations to negate judicial review of constitutional challenges to government action, most recently in some of the wildfire and flood claims resulting from disasters. But now, the states’ responses to the COVID-19 pandemic have brought one of these necessity doctrines—the public health necessity relying on Jacobson v. Massachusetts—to the forefront as courts across the country review constitutional challenges to state public health measures. With such intense review of Jacobson’s public health necessity in a short timeframe, it appears that the courts, including the Supreme Court, are recognizing that common law emergency exceptions cannot be applied to prevent constitutional review. This development supports the goal of this Article, which is to discourage the use of the necessity doctrine to bypass constitutional scrutiny of asserted rights, particularly as to takings claims under the Fifth Amendment. This Article examines the historical development of the diverse categorical exceptions to takings claims under the Fifth and Fourteenth Amendments and addresses the continued viability of these exceptions following the decision in Pennsylvania Coal v. Mahon. After reviewing four categories of necessity exceptions that include: 1) the doctrine of destruction (general, military, and law enforcement); 2) the public health exception; 3) the nuisance and background principles of property law exception; and 4) the police power exception, this Article concludes that the only doctrinally acceptable categorical defenses to a regulatory taking are the nuisance and background principles of property law exceptions. Nuisance and background principles of state law will determine whether the property owner has a property interest subject to a government taking. If the property owner never had a right to use their property in a manner that constitutes a nuisance or interferes with a public resource, it cannot be taken and does not deserve compensation. Government actions that constitute a taking, but benefit the public as a whole whether by conferring a benefit or preventing a harm, should not burden individual property owners when, under the Armstrong principle, in all fairness and justice, we the public should share in paying for the benefits received.

Download the piece on SSRN here.

New Article: Application of the Penn Central Test

Here's a recently-published article (ALI-CLE's The Practical Real Estate Lawyer) on a subject that we know you will want to read about: Jon Houghton, Hertha Lund, and Ben Stormes, Application of the Penn Central Test, 7 Prac. Real Estate Lawyer 7 (May 2023).

Check it out. It's short, practical (naturally), and worth your time.

Jon Houghton, Hertha Lund, and Ben Stormes, Application of the Penn Central Test, Prac. Real Estate Lawyer...

New Article: "UFOs and Eminent Domain"

A big thanks to friend and colleague Paul Henry for bringing to our attention this article by Andrew Stuttaford, UFOs and Eminent Domain.

No, it (unfortunately) is not the latest tenure-making scholarly law journal article (but we can dream, can't we?), but a piece in National Review.

It details a proposal to release federal documents relating to UFOs. Nice. But buried in the measure is this (according to Reuters):

Under the measure, records must be publicly disclosed in full no later than 25 years after they were created unless the U.S. president certifies that continued postponement is necessary because of a direct harm to national security.

It also establishes that the federal government would have "eminent domain" over any recovered technologies of unknown origin and any biological evidence of "non-human intelligence" that may be controlled by private individuals or entities.

Who among us is going to be the first in line to scoop an alien client/property owner? There's precedent for that, after all.

We're in.

New Scholarship: "Property as Service Streams" (Prof. Lee Anne Fennell)

New noteworthy dirt law scholarship, from U. Chicago's Prof. Lee Anne Fennell, "Property as Service Streams." Here's the Abstract:

Property’s job is to help people derive benefits from resources. But often it cannot do this work well. A core problem is an outmoded model of benefit production that treats the individually owned parcel or “thing” as the relevant unit of analysis. In this paper, I argue for a conceptual shift from a property-as-thing-ownership (PATO) paradigm to a property-as-service-streams (PASS) model. I start with the simple point that resources are only valued for the streams of beneficial services that they can provide. Further, owned items can only stream services to their users when combined with other resources and entitlements, many of which are controlled by other parties. Keeping discrete owned assets at center stage misdirects energy towards allocating and protecting things, when we should be examining how to nurture and sustain streams.

The analysis proceeds in three parts. I start with what the PATO to PASS move entails as a conceptual matter. I then examine the role of complements and substitutes in the PASS reformulation. Finally, I consider what PASS enables us to see and perceive about property, with implications for future innovation. This revised understanding of benefit production changes how we view property—how it works, what it needs to do, and what strategies it should employ.

Download here from SSRN.

Eminent domain lawyers certainly are already very familiar with the concept (think income capitalization, discounted cash flow, and the like).

New(er) Articles: Texas A & M Journal of Property Law - Natural Property Rights Symposium

The Texas A & M Journal of Property Law is always a good read, with many articles worthy of your time. But the Journal's latest, Volume 9, No. 4 (2023) stands out because it includes the papers for the Symposium on Natural Property Rights.

Check out these titles and authors:

• Natural Property Rights: An Introduction - Eric R. Claeys

• Too Simple Rules for a Complex World? Prior Appropriation Water Rights as Natural Rights - Vanessa Casado-Pérez

• Balancing the Inequities in Applying Natural Property Rights to Rights in Real or Intellectual Property - Lolita Darden

• Business Organizations as Natural Objects of Ownership - Kevin Douglas

• How Far Does Natural Law Protect Private Property? - James W. Ely Jr.

• Comparing & Contrasting Economic and Natural Law Approaches to Policymaking - Eric Kades

• Oil, Trees, and Water: Evaluating the Transition from Natural Property Rights to Property Conventions - John A. Lovett

• Opus as the Core of Property - Adam MacLeod

• Natural Law, Assumptions, and Humility - Ezra Rosser

• The Natural Right of Property - Timothy Sandefur

• Ad Coelum and the Design of Property Rights - Joseph A. Schremmer

• The Future of Natural Property Law: Comments on Eric Claeys’s Natural Property Rights - Christopher Serkin

• Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory - Lucia A. Silecchia

• Natural Property Rights: A Reply - Eric R. Claeys

That should keep you busy for a while.

New Article: 2023 National Eminent Domain Update

Thanks to the editors at ALI-CLE's The Practical Real Estate Lawyer for publishing my friend and colleague Amy Boulris and my summary of what we think were the most interesting -- if not the most important -- eminent domain cases over the past year.

And more thanks for allowing us to post it here, ALI-CLE. Full citation: Amy Brigham Boulris & Robert H. Thomas, "2023 National Eminent Domain Update" July 2023 ALI-CLE Prac. Real. Estate Lawyer.

Amy Brigham Boulris & Robert H. Thomas, 2023 National Eminent Domain Update, July 2023 ALI-CLE Prac. Real E...

Tuesday Round-Up: Sackett, Tyler, Defending Zoning, Canada Property Rights ... And More

Here's what we're reading this Tuesday:

• Tiffany Lashmet's Ag Law in the Field podcast: "Episode #155: Jesse Richardson and Anthony Schutz (Sackett v. EPA)"
• Lawprof Ilya Somin, Brennan Center for Justice: "Supreme Court Strengthens Federal Protection for Property Rights"
• Also from Prof Somin, Volokh Conspiracy: "A Flawed Attempt at a Libertarian Defense of Exclusionary Zoning"
• Here's the piece Prof Somin is responding to - Robert Poole, "A Brief History of Single-Family Zoning"
• Professor Malcolm Lavoie, SSRN, "Property Rights, Takings, and the Rule of Law: Assessing Annapolis Group v. Halifax Regional Municipality" (assessing the Supreme Court of Canada's latest ruling on property rights)
• Note, "The Contract Clause: Reawakened in the Age of COVID-19," 136 Harv. L. Rev. 2130 (2023)
• Lawprof Ilan Wurman, "Reconstructing Reconstruction-Era Rights," 109 Va. L. Rev. 885 (2023)

Worth checking out.

Rethinking Penn Central: A Call For Symposium Papers

If you know, you know.

Pacific Legal Foundation (that's us) has put out a call for papers about "Rethinking Penn Central." Here's the details (pdf).

Here's some of the suggested topics:

• Can Penn Central be salvaged or does it need to be fully replaced?
• If it is to be replaced, what should the new test be?
• Alternatively, what improvements can be made to Penn Central that would address problems raised by critics without uprooting the test entirely?
• Is economic loss primarily relevant to compensation owed rather than the threshold question of whether a taking has occurred?
• Can a more categorical approach, like those taken in cases including Cedar Point Nursery v. Hassid, Hodel v. Irving, or Lucas v. South Carolina Coastal Council, adequately address regulatory takings?
• What insights does the original meaning of the Takings Clause offer regarding how to fix or replace Penn Central?
• Do colonial or English practices or precedents offer insights into a better approach to regulatory takings?
• How did courts during the ratification and reconstruction periods address regulatory takings prior to Oliver Wendell Holmes’s infamous "too far" statement, and what lessons do those precedents hold for how to fix or replace Penn Central?
• What are the pitfalls that a new test must be careful to avoid?

More details here.

July 1, 2023 deadline to submit proposals. Accepted papers even get a $2,500 honorarium, and travel to the October research roundtable.

Check it out, and submit!

Rethinking Penn Central Symposium Call for Papers

In Which We Have A Conversation With A Colleague About Property Law, Public Interest Lawyering, And How To Pronounce "Schedule" (May Be TMI)

Thank you to to good folks at ALI-CLE's The Practical Lawyer, for putting me together with Rajiv Khanna, and memorializing our recent conversation in this piece to be published in next month's issue: "Conversation With a Colleague: Robert Thomas," The Practical Lawyer (ALI-CLE June 2023).

Rajiv and I chatted about property law (including the Rule Against Perpetuities, even!), the difference between public interest lawyering and private practice, online vs in-person, a national practice vs a local practice, pathways to professional contentment, and considering yourself as a general practitioner in the age of legal specialization:

You still consider yourself to be a general practitioner. You have focused on property in private practice. You teach property in law school, and you also are doing public interest litigation. Out of all of these careers, what do you think you find the most satisfying?

That is truly a tough question. I loved private practice. I loved being able to help people solve their problems. I liked both large and small cases, cases that were money makers. Unfortunately, there were a lot of cases that were not money-makers but I still treasure the associations I have with those clients or cases where we couldn’t win. I love the people I worked with. I remain friends with them to this day.

I also love teaching law because you’re not bound by what the client can afford. Should I be looking at that issue? How about that side issue? Can I go there? In the academic world, that is actually encouraged. And secondly, I love working with soon-to-be lawyers and watching as the lights turn on in their eyes and they open their minds to the possibilities. A lot of them, I think, were like I was in law school and thinking, “This class on land use is at a good place and fits in my schedule.” And then they find out that property is not a static subject. It’s right on the cutting edge of things, and they really enjoy it.

And then the last two years I’ve been a lawyer with the nonprofit Pacific Legal Foundation and I really am enamored of that. In private practice, there were a few days here and there when you have to get your bills out or you have to call a client who’s late in paying, or you have to get into a fight with the other side. And you think, when is this day going to end? But I have yet to have any of those days at PLF. I wake up every day eager to get back to work. It’s a great freedom being able to tell clients, don’t worry, we will cover all of your legal fees and all of the costs. We’re here to help you, and to help shape the law to benefit everyone. When you can tell clients that, they view you as someone who is coming in solely to help them, as opposed to someone coming in to help them and maybe make some money. It really changes the dynamic of the relationship. The colleagues that I work with are the best and the brightest in our field—really dynamite advocates—so I feel incredibly lucky to have come into this position.

But if I had to choose between private practice, teaching, and public interest law, I think I have to go with public interest practice. Just because there hasn't been a day yet that I haven't thought, Today is going to be fun. I’m going to learn some stuff. I don't have to worry about billable hours. I don›t have to worry about chasing clients for overdue invoices. I don’t really have to worry too much about the drudgery of litigation. I’ve also somehow avoided many of the big drawbacks that you might hear about in typical civil litigation. I don’t know whether that’s because I’m dealing with mostly government lawyers on the other side who are very professional. It would pain me to have to let go of my academic and scholarly work, but if I had to, I would choose public interest law. It’s fantastic.

Check it out if you are inclined, and don't mind TMI. 

Conversation With a Colleague: Robert Thomas, The Practical Lawyer (ALI-CLE June 2023)

New L Rev Article: "Property and the Right to Enter" (Bethany Berger)

Here's an article for your Monday reading, Bethany R. Berger, Property and the Right to Enter, 80 Wash. & Lee L. Rev. 71 (2023).

Here's the abstract:

On June 23, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, holding that laws that authorize entry to land are takings without regard to duration, impact, or the public interest. The decision runs roughshod over precedent, but it does something more. It undermines the important place of rights to enter in preserving the virtues of property itself. This Article examines rights to enter as a matter of theory, tradition, and constitutional law, arguing that the law has always recognized their essential role. Throughout history, moreover, expansions of legal exclusion have often reflected unjust domination antithetical to property norms. The legal advocacy that led to Cedar Point continues this trend, both undermining protections for vulnerable immigrant workers in this case and succeeding in a decades-long effort to use exclusion as a constitutional shield against regulation.

Download the pdf here.

New L Rev Article: "Property against Legality: Takings after Cedar Point (Huq)

Check this out, a recently-published article in the Virginia Law Review, Aziz Z. Huq, "Property against Legality: Takings after Cedar Point," 109 Va. L. Rev. 233 (Apr. 10, 2023).

Here's the abstract:

In the American constitutional tradition, a zealous judicial defense of property is closely aligned with the idea of “the rule of law.” Conventional wisdom holds that the Takings Clause of the Fifth Amendment vindicates both property rights and the rule of law by foreclosing arbitrary, lawless state action. But the standard story linking property rights, legality, and a constraint on arbitrary governance is more commonly stipulated than analyzed. This Article uses an apparent sharp break in takings jurisprudence, the United States Supreme Court’s June 2021 decision in Cedar Point Nursery v. Hassid, to closely scrutinize the relationship between legality and property rights. To that end, it offers first a careful analysis of the sharp rupture that Cedar Point makes in takings jurisprudence. Not only is the Court’s result difficult to explain in terms of precedent or traditional legal methods, it also destabilizes a previously settled and reasonably predictable litigation landscape. As a result, it seeds profound uncertainty on the legal ground because it signals a dissolution of the constraining effect formerly realized by standard tools of legal reasoning. There is, further, no obvious way for the Court to restore stability and predictability to the doctrine without drawing new, arbitrary lines. In consequence, takings law will likely abide in confusion, not certainty, for the foreseeable future. Cedar Point’s vindication of property rights hence comes at the paradoxical cost of dramatically increasing the space for decisions unguided by law by one group of officials in the judiciary.

A close reading of Cedar Point invites a more general and abstract analysis of the complex, nuanced relationship between the rule of law and property rights. Drawing on the general jurisprudential theories of H.L.A. Hart and other legal positivists, I use the decision as a launching point for a larger exploration of ways in which the rule of law can be incompletely realized to paradoxical and even socially harmful effect. Placing property at the center of the rule of law, I suggest, can be consistent with, or even an incitement to, serious derogation of the rule of law. Doing so can undermine rule-of-law goals, such as constraining arbitrary rule. This suggests a need to decenter property rights in accounts of the rule of law, and to explore, in more nuanced and grounded fashion, how the practice of judicial review mediates systemic values of legality and predictability. In short, if we value the rule of law, it may in general be appropriate to take a more skeptical, and so more contingent, view of both property as a legal institution, and also the courts as a source of legality and stability.

Download the pdf here.

New Article: Alex Boone, "The Tide's Coming In: A New Case for Beachfront Property Rights in South Carolina" (Wm & Mary Envt' L & Pol'y Rev)

Check this out, a new student-authored note from William and Mary third-year law student Alex Boone, "The Tide's Coming In: A New Case for Beachfront Property Rights in South Carolina," 47 Wm. & Mary Envtl. L. & Pol'y Rev. 383 (2023).

Here's the Abstract:

Part I of this Note explores the scientific data as it relates to the impending consequences of climate change on South Carolina’s coast and will introduce the disastrous scenarios that are predicted to arise as a result of rising sea levels and the accelerating strength and severity of extreme weather events. Part II compares the effectiveness of various coastal resiliency tools and highlights the regulatory framework that prohibits their use by beachfront property owners. Part III explores the topic of regulatory takings and their indirect prophylactic nature of protecting citizens from regulatory overreach and offers a case for a South Carolina court to find that the state’s regulations create an unconstitutional taking of private property without just compensation. Lastly, Part IV recommends a policy change designed to mitigate the consequences of the CTWA [Coastal Tidelands and Wetlands Act] on South Carolinians in the absence of a judicial finding that the CTWA constitutes a regulatory taking.

It's really rewarding to see this kind of writing and analysis from a law student. Yes, we appreciate the subject-matter and the conclusion (naturally), but that aside, it is a good day when a soon-to-be colleague does this kind of work and lays it all out there for the world to see. Congratulations to the ELPR editors, and especially to Mr. Boone!

New Article: "Toward Principled Background Principles in Takings Law" (Strahilevitz & Hansen)

Check this out, a new article co-authored by a federal judge's law clerk and lawprof Lior Strahilevitz (Chicago). With the title, "Toward Principled Background Principles in Takings Law" are we going to read it? You bet. (Unlike a lot of new scholarship that we post here, we read this one immediately.)

Here's the Abstract:

Blunders made by lawyers, judges, and scholars have caused the Supreme Court’s recent opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court re-wrote takings law by treating temporary and part-time entries onto private property as per se takings. Prior to Cedar Point these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there were two well-established rules of black letter law that California’s lawyers and amici mistakenly failed to invoke in defending the Cedar Point union organizer access regulation. First, a physical takings claim accrues when a regulation authorizing third parties to enter private property is promulgated, not when the third party actually enters the land. Second, only the party that owned the land at the time the physical taking cause of action accrued can prevail. Under these doctrines, Cedar Point Nursery’s lawsuit was filed decades too late. By the wrong plaintiff. California’s oversights were probably outcome determinative.

Moving beyond Monday-morning quarterbacking, we argue that the statute of limitations arguments available to governments in future cases help provide the essential limiting principles that went unmentioned in Cedar Point. In the aftermath of Cedar Point prominent scholars denounced the opinion as a vehicle for gutting antidiscrimination law, labor law, environmental law, rent control, and other parts of the regulatory state. Our analysis reveals that these concerns are likely exaggerated because defenders of those long-standing limits on the right to exclude can invoke the statute of limitations arguments that California’s lawyers failed to raise. On the other hand, new restrictions on owners’ rights to exclude are vulnerable to legal challenge. Properly understood, contemporary takings law grandfathers in many longstanding limits on the right to exclude while constraining governments that wish to tackle collective action problems by restricting property rights in new ways. Moreover, statutes of limitations and related doctrines can provide courts with something that has been elusive since the Supreme Court’s 1992 takings decision in Lucas v. South Carolina Coastal Council: a principled and coherent account of what restrictions on owners’ rights are impervious to takings claims because they qualify as background principles of state property law.

Read it at SSRN.

[Before we go on, Disclosure 1: my law firm represented the property owner in Cedar Point Nursery, so yes, I have a dog in the hunt.]

What do you think of the article's premise and conclusion that a regulation alleged to allow a physical invasion must be brought when the regulation is adopted, and not when property is actually invaded?

Government lawyers need not and should not repeat the mistake that California’s lawyers made, a goof that evidently went unnoticed by all three dissenting justices, all thirteen amici, and every scholar who has written about Cedar Point. By correcting Cedar Point’s litigation strategy blunder, governments may avoid having to compensate landlords who want to refuse to rent to members of a protected class, landlords whose ability to evict is constrained by rent control laws, employers who wish to fire workers involved in unionization efforts, and business owners who want to bill governments for the inconvenience of having to endure entry by health and safety inspectors. Most of these claims brought by property owners should fail if defended by competent government counsel who can learn from California’s error.

Id. at 5 (footnote omitted).

In other words, the allegedly unconstitutional act is the enactment of the regulation, and not also the failure to provide compensation when an invitee subsequently exercises the rights granted by the regulation to enter the plaintiff's property against the owner's wishes.

And what of the article's other premise, that regulations allowing physical invasions and occupations of property over time become "background principles of the State's law of property and nuisance" and disappear upon conveyance of the property?

Understandably, many observers were unnerved by Chief Justice Roberts’ decision to brush aside the notion that the California regulation – just seven years younger than the Fair Housing Act – was a background principle of state property law, unnerved many observers. If the 1975 California statute and regulation do not count by 2021 as background principles that inhere in title why shouldn’t the 1968 Fair Housing Act suffer the same fate? The response to Cedar Point from the least alarmed property scholars fell back on the idea that the Court would nonetheless treat the Fair Housing Act as a background principle. But no one has a good theory – other than a realist reading of the justices’ relative hostility to the goals of labor law – for why something magical happened between 1968 and 1975. After Cedar Point it is quite challenging to conclude that there are any principles at all underlying the Supreme Court’s conception of background principles. Our goals in this article include articulating coherent principles that are grounded in existing law and consistent with what the Court decided in Cedar Point.

Id. at 17 (footnotes omitted). 

Some preliminary impressions:

Are all physical invasion challenges facial claims? The article's premise seems to eviscerate the longstanding distinction in constitutional law generally -- and takings law specifically -- between a facial challenge and an as-applied challenge. The window opens on a facial challenge on behalf of everyone when a regulation is adopted, but we thought it was settled that individual property owners had to wait -- upon pain of being tossed out on ripeness grounds --  for the challenged regulation to actually be applied to their facts and circumstances. But the article does not mention the facial vs as-applied distinction.

Standing before incurring a concrete injury? The argument also seems a variation of the Federal Circuit's rationale in Campbell v. United States, 932 F.3d 1331 (Fed. Cir. 2019), where the court held "[i]n the case of a regulatory taking, however, the taking may occur before the effect of the regulatory action is felt and the actual damage to the property interest is entirely determinable." Disclosure 2: we thought the Federal Circuit's reasoning in that case was faulty (that a property owner has an obligation to sue even before she is actually injured seems very strange), and petitioned for certiorari (denied). But it does seem like a weird rule, and very much at odds with injury-in-fact and Article III standing requirements.

Whither Kirby Forest? The rule also seems at odds with Kirby Forest Indus. v. United States, 467 U.S. 1 (1984), where the Court upheld all sorts of government actions that muck around with an owner's property rights prior to an actual judgment and tender of compensation in eminent domain cases. No, the Court concluded, the "taking" takes place in straight takings when there's been an adjudication of compensation and a tender of actual payment. And all those things which happened before that interfere with the owner's use -- like instituting an eminent domain action, filing a lis pendens and clouding title, drying up the market for the property, and similar -- do not interfere sufficiently with property interests because "petitioner was free to make whatever use it pleased of its property." Id. at 15-16. The California provision seems similar: until the union organizers actually entered Cedar Point property under color of the statute, the owner could exclude whom it wanted.

Too early and too late: You just know that if property owners had challenged the California statute as a taking upon enactment, but before anyone had actually attempted to enter under the authority of the statute, that the claim would not have been that they filed too late, but rather too early. Property owners are used to these type of inconsistent arguments and being whipsawed between being accused of filing too early, or too late (or, in many cases, both too early and too late at the same time). We don't think that the line the courts are going to enforce between ripeness and staleness is as clear as the authors make it out to be.

Get ready for more takings claims, federal courts. Unless the article is arguing for abandoning the remaining takings ripeness requirement (something we're down for, but so far the courts are not), we're not sure that a rule that will force prudent property owners to sue upon adoption of new regulations is one that the courts will enthusiastically embrace (even if they should).

Zombie takings, or zombie statutes? The article describes Cedar Point as a "zombie takings claim" (p. 33) because it challenged a statute originally adopted decades ago. It argues that after about 40 years, regulation ossifies into a background principle, immune from challenge. Even though we'd use the "zombie" label to describe the California statute and others like it that are there on the books but are pretty obscure, let's go with the zombie takings label. That brings up an intriguing tradeoff: would we surrender Cedar Point and the ability to challenge 40 year old regulations in return for eliminating the ripeness hurdle and opening up courts to immediate challenges of newly-adopted regulations as we think the piece is advocating for? Hmmmmm... we gotta think about that one.

Cringe. No matter what, we think that calling the Cedar Point outcome the result of "blunders" by lawyers, judges, and scholars (p. 1), the government's strategy a "goof" (p. 5) and "bad lawyering" (p. 48), its lawyers "bone-headed" (id. at 49 & n.314), and accusing government counsel of committing "a colossal strategic blunder" (id. at 2), and saying that the government's lawyers in Cedar Point and Lucas committed "legal malpractice" (id.), is unnecessary and uncharitable in the extreme. We get that the authors don't care for the outcome in Cedar Point and wish their "Monday-morning quarterbacking" strategy (their words not ours, see p.1) would have been raised and tested. But in our view, these type of accusations should not be thrown about lightly, especially by those who didn't enter the amici arena themselves, and by those who don't appear to have been there, done that because their collective time actually practicing law and making strategic litigation decisions in real time in real cases appears to be, let's say, very limited. We hope there can be even vehement disagreement about the issues without slinging accusations of malfeasance, incompetence, and especially malpractice -- claims the practicing bar takes very, very seriously. We respectfully urge the authors and the law journal editors to reconsider these characterizations prior to print publication. 

We're going to meditate on the article and its arguments more. But whatever you may think of the authors' analysis and conclusions, this piece is well worth reading.

IRWA's Summary Of Major Eminent Domain Cases & Legislation (June-Dec 2022)

The International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States."

And what is really nice is that they make the report available.

Here's the latest.

We're posting it here because we're one of the co-authors. Hat tip to our co-authors Brad Kuhn, Jillian Friess Leivas, and Ajay Gajaria.

The report is short, and doesn't contain a lot of fluff. Just what you wanted.

New Article: Maureeen Brady, "The Illusory Promise of General Property Law"

Check this out, a new piece by lawprof Molly Brady, "The Illusory Promise of General Property Law," 132 Yale. L.J.F. (2023 forthcoming).

If the title alone isn't enough to grab you, here's the abstract:

In The Fourth Amendment and General Law, Danielle D’Onfro and Daniel Epps endorse an approach to the Fourth Amendment that defines the scope of protection largely by reference to "general property law"—uniform principles of trespass, abandonment, and so forth—discerned from and informed by the customs and rules of multiple jurisdictions. While their approach attractively reasons from useful common-law and private-law concepts, the specific general-law model they outline has both unresolved internal puzzles and unaddressed external effects.

In this Response, I probe this vision of “general law,” which has the potential to be more open-ended and unconstrained than the general law as it has previously been understood. Even if it did more closely resemble traditional general law, a court’s resort to making general law in a particular context is typically justified by some federal interest or power meriting the application of uniform rules. The authors do not satisfactorily explain that need here, especially given traditional deference to positive state law—and the desirability of some variation reflecting local conditions and expertise—in matters involving property questions in other areas of constitutional law. Further, in justifying reliance on the general law, the authors over-sell its determinacy and stability vis-à-vis existing Fourth Amendment law, which assesses whether an individual’s “reasonable expectations of privacy” have been violated. Given the vagaries of some common-law standards and the breadth of the sources of general law, courts will still be faced with unclear choices within and among them. The general-law approach does not offer guidance on resolving these conflicts and uncertainties, dooming it to the same indeterminacy.

To illustrate with specific examples, I turn to a doctrinal area where the pitfalls of general law—and specifically, general property law—can already be observed: in recent decisions under the Takings Clause of the Fifth Amendment. Decisions interpreting the Takings Clause traditionally “emphasiz[ed] the role of nonconstitutional state property law in defining both what counts as constitutional property and in measuring whether a taking has occurred.” The presumption of deference to state-specific property principles was grounded in a belief that property is an inherently local matter and that different states might opt to recognize and regulate property interests differently. However, two Supreme Court decisions within the last five years—Murr v. Wisconsin and Cedar Point Nursery v. Hassid—have unsettled that longstanding tradition with troubling effects. Takings law also teaches that decisions by courts in federal constitutional cases can influence the direction of nonconstitutional state private law, even though that result is not compelled.

There is an approach that would carry some of the benefits of the general-law model while leaving most of the development of property law to the states. In articles covering the Due Process and Takings clauses, Thomas Merrill has advocated for a “patterning definition” of constitutional property—a set of federal criteria that are met (or not) by the characteristics an interest has under nonconstitutional state law. The idea behind patterning is to provide a baseline, uniform constitutional standard across the states—one of the key purported advantages of the general-law model over the positive-law one—without having courts make a confusing national law of property specific for federal purposes. While private law can helpfully frame and elucidate Fourth Amendment problems, the general-law model offers limited promise for the development of Fourth Amendment doctrine while posing unwarranted risks for the viability of variable state property law.

Get it from SSRN here.

New Article: "Before Property: A Prehistory of Property Rights in Land"

We can't claim to fully understand it (it's full of words and phrases that frighten and confuse us), but we nonetheless commend to you a recent piece by lawprof Amanda Byer (University College Dublin), "Before Property: A Prehistory of Property Rights in Land."

Here's the Abstract:

This paper traces the origins of land as property in the common law and is excerpted from a larger work on the legal geography of property. Unlike previous genealogies of property, this research uses a landscape lens to examine property’s roots, predating its origins not in Lockean notions of individual ownership, but in the pre-feudal era. Property diverged from landscape, a term signifying a locally distinct polity or place, in which ‘land’ represented a complex web of diverse non-proprietary relationships and interests. This divergence was facilitated by a legal system that prioritised (placeless) abstract rights in land that could be owned, as exemplified by John Locke’s property theory of value. Revealing property’s early origins in place reframes property’s ascendance, not as a linear evolution from primitive collectivism, but as a retreat from grounded perspectives in land. A landscape lens may allow us to reimagine property’s potential, by re-infusing place into the property discourse.

Check it out (it's not terribly lengthy, so it won't set you back too far time-wise).

New Article: "Theft, Extortion, and the Constitution: Land Use Practice Needs an Ethical Infusion" (Michael Berger)

Here's your must-read for today, the latest journal article from Michael Berger, "Theft, Extortion, and the Constitution: Land Use Practice Needs an Ethical Infusion," 38 Touro L. Rev. 755 (2022).

Here's the Abstract:

There are many ways in which property owners/developers interact with regulators. To the extent that texts and articles deal with the ethical duties of the regulators, they tend to focus on things like conflicts of interest. But there is more. This article will examine numerous other ways in which regulators may run afoul of ethical practice in dealing with those whom they regulate.

And if that isn't enough to grab you, there's this:

There may be more to the issue than how to act in narrow circumstances. For one thing, there is the idea that government and the governed need to deal with each other on a level playing field. As one court put it:

It has been aptly said: “If we say with Mr. Justice Holmes, ‘Men must turn square corners when they deal with the Government,’ it is hard to see why the government should not be held to a like standard of rectangular rectitude when dealing with its citizens.”

Moreover, there are some peculiarly land use related questions that have a core of ethical content and that receive too little attention as ethical issues. For example, as the U.S. Supreme Court once put it, in explaining the need for just compensation when private property is taken for public use:

[t]he political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice.

So, there is at least one parameter: ethics is a part of the Fifth Amendment, and it prohibits “confiscation” of private property. That seems a good place to start. This article will highlight a few of the larger ethical issues stemming from that beginning.

Id. at 756-757 (footnotes omitted).

Be sure to check it out.

Law Of The Lava - Who Owns New "Accreted" Land? (And Other Questions)

Due to our 808 roots, we've been fielding a lot of questions related to the ongoing eruption of Mauna Loa on the Big Island.

It's big, it's spectacular (see video above), and (for us) it's law.

The questions (who owns "accreted" lava?, how does the NPS let the public out to see this?, what uses can be made of property covered by lava?) made us realize that we had addressed some of those issues in prior posts. So we're reposting:

• Visitors At The Volcano: Is The NPS Nuts?
• "Accretion," Hawaii Style
• What Constitutes a Loss? - Bridge Aina Lea and takings

Hope you find useful these things that make Hawaii property law pretty interesting at times.

New Article: "Warranted Exclusion: A Case for a Fouth Amendment Built on the Right to Exclude"

Check this out: a new article from lawprof Mailyn Fidler (U Nebraska SOL), "Warranted Exclusion: A Case for a Fourth Amendment Built on the Right to Exclude," 76 SMU L. Rev. ___ (2023) (forthcoming).

The Abstract:

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. And the leading competitor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible conception of property rights—what this Article terms a “situational right to exclude.” When a searchee has a right to exclude some law-abiding person from the thing to be searched, in some circumstance, the government must obtain a warrant before gathering information about that item. Keeping the government out is warranted when an individual has a situational right to exclude; it is exactly then that the government must get a warrant.

Download the draft here (SSRN).

Are we reading this one? Because this is one of the areas that we're digging into in the courts, you bet we are.

New Symposium: Northwestern L. Rev.'s Property Issue

Be sure to check out Northwestern Law Review's symposium issue on "Reimagining Property Rights in the Era of Inequality." which brought 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."

We found the essay by Professor Fennell ("Streamlining Property," and the essay by Timothy Mulvaney ("Compulsory Terms in Property") to be of particular interest. Full list of essays above, or here.

New Must-Read Article: "Cedar Point Nursery and the End of the New Deal Settlement" - Property Rights Are Civil And Human Rights

Here's your must-read for today, a new article from U. Va. lawprof Julia D. Mahoney, "Cedar Point Nursery and the End of the New Deal Settlement."

Disclosure: we show up in footnote * along with others for offering "comments and conversations" about the piece. 

Here's the Abstract:

In Cedar Point Nursery v. Hassid, the United States Supreme Court ruled that a California state regulation granting labor organizations a limited “right to take access” to agricultural employers’ property constitutes a per se physical taking. Cedar Point has sparked intense criticism, with critics arguing that the decision threatens to transform the law of property rights so as to “hobble” government land use regulation and even undermine democracy. This Article explains why the objections of Cedar Point’s detractors are misplaced. Far from disabling government regulation or fomenting stasis by favoring the “already haves,” Cedar Point is best understood as another step in the normalization of property rights. In this, Cedar Point is in accord with other recent Court decisions, including Horne v. Department of Agriculture, and Knick v Township of Scott. These cases illustrate how constitutional recognition of property interests, duly enforced by the judiciary, protect the interests of the working and middle classes. That is no small thing, particularly at a time of well-justified concerns about the outsize influence of elites on the legislative and executive branches of government, with its attendant worries that those who lack power to defend themselves in the political and administrative arenas are vulnerable to “redistribution up.”

It is true that this normalization of property rights amounts to a retreat from the “New Deal Settlement,” under which courts declined to subject legislative and administrative actions affecting property rights to significant oversight. But for anyone who cares about the economically vulnerable, the passing of the New Deal Settlement should be cause for celebration rather than alarm. Eighty years on, it is evident that the costs to many poor communities of judicial abdication in the area of property rights were very high. The careful readjustment now underway does nothing more than recognize property’s status as a civil and human right, one that needs serious constitutional protection if people are to flourish as citizens, family members, and workers.

Check it out. Get the pdf here.

IRWA's Summary Of Major Eminent Domain Cases & Legislation (Jan-May 2022)

The International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States."

And what is really nice is that they make the report available. 

We're posting it here because we're one of the co-authors. Hat tip to our co-authors Brad Kuhn, Jillian Friess Leivas, and Ajay Gajaria.

The report is short, and doesn't contain a lot of fluff. Just what you wanted.

Lawprof Saxer On Jotwell: "The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions"

Check this out: Pepperdine lawprof Shelley Saxer has a piece in Jotwell, "The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions," a review of U. Hawaii lawprof David Callies' book, "Regulatory Takings After Knick."

The review is short and to the point, so we suggest you read it. But here's a teaser:

This small but mighty book offers a concise history and understanding of takings jurisprudence as it stood before and after the Knick decision. It brings clarity to a convoluted chronicle of takings litigation and presents specific situations where litigants have asserted a total taking claim and the defense has relied on the various exceptions to Lucas.

Don't miss it.

New Article: Woolhandler & Mahoney, Federal Courts and Takings Litigation, 97 Notre Dame L. Rev. 679 (2022)

A new article on takings from U. Virginia Law School profs Ann Woolhandler and Julia Mahoney in the Notre Dame Law Review, "Federal Courts and Takings Litigation." Get the pdf here.

Rather than try and summarize the piece, we're just going to cut-and-paste the highlights from the article's Introduction:

While Knick clearly expands the lower federal court role in takings claims, many questions remain. We do not know how federal courts will respond to the increase in claims—whether they will embrace a robust federal role in land use cases, or use various abstention doctrines to rein them in. While pro-regulatory and pro-property rights scholars have predictably taken sharply contrasting positions as to the appropriate federal court role post-Knick, this Article will recommend a middle-of-the-road approach, based partly on history and partly on an assessment of where the lower federal courts may most usefully contribute to the fair determination of takings claims.

...

Going forward after Knick’s overturning Williamson County, we ask: What role should the federal courts play? The demise of Williamson suggests that the federal courts may significantly increase their role in land use decisions, but it may also suggest that they will more actively use abstention doctrines to reduce Knick’s impact. We evaluate the use of Pullman and Burford abstention doctrines in takings claims, and find them inapt. We suggest an abstention doctrine specially for takings cases that would sort out cases where the federal courts are most likely to contribute to fair applications of the law. Finally, we suggest that constitutionally-based actions brought under § 1331 may be better homes for takings cases than § 1983 actions.

...

[The Article] outlines categories of claims for which lower federal court jurisdiction may be more and less warranted. Finally, it suggests that constitutional claims under the federal question statute rather than § 1983 may be a better vehicle for federal courts takings claims, Knick notwithstanding.

(footnotes omitted).

Highly recommended. [Disclosure: as noted in footnote ** of the piece, we offered our thoughts to the authors on a draft of the article.]

IRWA's Summary Of Major Eminent Domain Cases & Legislation (June-Dec 2021)

Check this out: the International Right of Way Association's Real Estate Law Committee produces twice-a-year reports "which contain summaries of eminent domain decisions and legislation within the United States." (This is the "international" right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available. 

We're posting it here because we're one of the co-authors. The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to ask me for some input.

Brad and Jillian wrote up more at the California Eminent Domain Report.

The report is short, and doesn't have a lot of fluff. Just what you wanted.

New Article: "'Equitable Compensation' as 'Just Compensation' for Takings" (Brigham-Kanner Property Rights Journal)

An article, from the just-published issue of the Brigham-Kanner Property Rights Journal, about a rarely-covered academic topic, just compensation.

Brian A. Lee (Brooklyn), “Equitable Compensation” as “Just Compensation” for Takings, 10 Brigham-Kanner Prop. Rts. J. 315 (2021).

Here's the Abstract:

The Fifth Amendment’s requirement that the government pay “just compensation” to owners of taken property is typically assumed to mean “full” compensation, equivalent to the taken property’s fair market value. In this symposium contribution to the Brigham-Kanner Property Rights Journal, I explore an often overlooked alternative understanding of “just compensation” for takings, one freed from automatic equation with full, fair-market-value compensation. Rooted in traditional equity, this “equitable compensation” alternative has significant historical roots, starting with the Fifth Amendment’s drafters’ striking choice not to follow the Northwest Ordinance of 1787’s requirement of “full” compensation, and running through a line of cases and commentary that has emphasized takings compensation’s equitable nature. I argue that recognizing takings compensation’s equitable dimension—particularly equity’s attention to reciprocal obligations—can help takings law more naturally respond to thorny difficulties caused by specific rigidities in takings doctrine, rigidities that create challenges when takings doctrine is forced to address situations that differ from core cases of eminent domain. Attending to the relative weights of parties’ reciprocal duties, and equitably adjusting compensation in response, can help resolve such cases more plausibly, including takings for private projects with public benefits (as in Kelo v. New London) and regulatory takings.

Check it out.

The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law's Eminent Domain & Property Rights, And Land Use Courses

If you ever get the opportunity to teach in a law school -- either as a full-time legal scholar, or part-time as an expert adjunct practitioner -- take it if you can. You might think you know a lot about a particular subject, but there's nothing like spending time at the lectern in a law classroom in front of sharp and eager lawyers-in-training to sharpen your thoughts, and get you to truly understand a subject.

And folks calling you "professor" can evoke a smile.

But if there's one downside to the law school experience from the teacher's side of the lectern, it's grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve. In upper-division courses that we handle like Eminent Domain and Property Rights Law and Land Use -- where we're dealing with some very high-level stuff and the quality of the students is uniformly high -- that makes for some hard choices at this time of year. Despite these challenges, we've wrapped up grading for the Fall 2021 Semester, and have submitted the official scores.

Although I cannot share with you the students' final papers in these classes, I don't think they would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about property, property rights, takings, land use, and environmental law (inter alia). 

Check out these titles:

• The Many Saints of Land Use Law
• The Past, Present, and Future of Richmond Affordable Housing
• What's on the Menu? - The Future of Outdoor Dining and the Tension Between Land Use and Public Health
• Could Monetary Compensation Fully Indemnify Property Owners for Idiosyncratic Values in Takings Cases?
• The Lingering Effects of the Dawes Act on Tribal Land Use
• The Dawn of Debt and Everything Else: An Examination of the Works of Michael Graeber and the Role of Eminent Domain and Property Rights
• Inflation for Land Use Control
• Agritourism in Wine Country: Analysis of Accessory Uses in Napa Valley
• Judicial Exaction of Euclidean Deference Under Koontz
• A Review of Richard Rothstein’s The Color of Law: A Forgotten History of How Our Government Segregated America
• What’s on the Inside Counts: Why Historical Preservation Regulations Should be Allowed to Regulate Interior Landmarks and the Issue of Public Access
• Through the Buchanan Lens: Reframing Virginia Land Use Laws
• The Case for Equal Application of RLUIPA’s Equal Terms Provision
• The Government Giveth, and the Government Taketh Away: Retroactive Application of Inter Partes Review Under the Takings Clause
• The Right to Share: Is Virginia Beach’s Regulation of Short Term Rentals a Taking under the Takings Clause of the Fifth Amendment?
• The laws of nature do not recognize property rights, complicating the Commonwealth of Virginia’s adaptation to climate change
• Looking at Viniculture Through the Glass of Historic Preservation Law, or
  A Brief Wine Advocate
• Is the New York State Canal Corporation the Onceler of Upstate New York?: An Analysis of Town of Pittsford v. Power Authority of New York
• Law and Ownership as Evolving Stories: A Review of Mine!
• Incentive Zoning in New York
• The Tide is High but Norfolk's Holding on: An Analysis of Norfolk's Climate Change Adaptation Strategies and a Review of the Potential Claims in Response
• Flipping the Play: How Localities Can Use the Power of Eminent Domain to Seize Sports Franchises and Finally Stick it to Bob Irsay
• Land Use Control – Is it Important to the Average Joe?
• Re-Evaluating Bennis and Civil Forfeitures Under the Takings Clause
• The Guardian of Every Other Right - A Constitutional History of Property Rights and a Discussion on Tariffs, Redistributionism, and Capitalist Liberty
• Pipelines and Eminent Domain: A Constitutional and Environmental Analysis of Energy Takings
• Paradise Stolen: An Ethical Reexamination of Property Deprivation and the Plight of the Atakapa-Ishak Peoples of Louisiana’s Grand Bayou Indian Village
• A Flood of Pollutants: The Promises and Perils of a Regulatory-Takings Approach to the Right to a Clean Environment

And this is only a sampling.

I don't know about you, but I feel pretty good about this. I will be encouraging several of them to consider beefing up their papers and submitting them for publication.

What We're Reading: "Mine! How the Hidden Rules of Ownership Control Our Lives"

We've talked about the "playground constitution" before (and written about it). You know this stuff:

The third constitution is what has been labeled the "popular constitution" that exists, unwritten, in the broader culture. I call this the "playground constitution," embodying rules that a broad swath of the populace believes are part of the legal canon, and which often contain a grain of accuracy but do not capture the nuance of the actual legal rules. For example, "finders keepers, losers weepers," and possession being "nine-tenths of the law."

You snooze, you lose. Whomever smelt it, dealt it. Come on, you have surely experienced it. Even you law mavens have, right? There's all sorts of levels of this stuff, from clients who just "know" that the law says something (when in reality it doesn't - they can't take my property!), or judges who assume that a land use "variance" is some kind of general exception to a development prohibition (it ain't, Your Honor).

In that vein, we were pleased last year when lawprofs Michael Heller and James Salzman published "Mine! How the Hidden Rules of Ownership Control Our Lives," a book that, in part, tries to get to the roots of what this thing we call "property" represents, and what it means to "own" something. From whether it is ok to take that last slice of pie, to "reserving" street parking spaces, to more important things like whether it is ok to recline the seat on an airplane. What are the the hidden rules of ownership in your area of operations? 

This book is a straightforward read, and appropriate for a range of readers from the seasoned dirt law professional, to the dabbler who wants to have some snappy comeback to other playground lawyers or their HOA president. And a nice companion book to Prof Bart Wilson's ""The Property Species - Mine, Yours, and Human Mind" (which we wrote about here). 

Get your copy here or here (we got the audio book for longer drives).

New Article: "Takings, PASH, and the Changing Coastal Environment," 43 U. Haw. L. Rev. 525 (2021)

Back in February, we were honored to be part of the University of Hawaii Law Review's symposium "25 Years of PASH," a retrospective of one of the Hawaii Supreme Court's most famous (or infamous) decisions, Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm’n, 79 Haw. 425, 903 P.2d 1246 (1993), cert. denied sub nom., Nansay Haw. v. Pub. Access Shoreline Haw., 517 U.S. 1163 (1996) (PASH).

At the conference, we spoke on the panel about "PASH and the Changing Coastal Environment" (see video here at the 2:02:25 mark if you want to watch our panel's summations). The Law Review has now published the symposium, and here's our contribution, Takings PASH and the Changing Coastal Environment, 43 U. Haw. L. Rev. 525 (2021).

For those of you not totally tuned in, in the PASH case the Hawaii Supreme Court concluded that subject to certain qualifications, the Hawaii Constitution allows native Hawaiians to exercise traditional practices, even on private property, and that "[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii." Yes, the right to exclude is not "universally applicable" in the 808. Let that one sink in. (The U.S. Supreme Court denied the takings cert petition.)

Here's our piece's Introduction:

The topic of this portion of the Symposium is “Takings and the Changing Coastal Environment” and in this comment I focus on the “takings” part of that title, as well as offer some thoughts on our guiding subject, the Hawai‘i Supreme Court’s decision from a quarter-century ago in PASH, which most famously noted “that the western concept of exclusivity is not universally applicable in Hawaii.” How might this statement be considered today through the lens of property law and property rights, especially if we account for the changes in the U.S. Supreme Court’s approach to takings in the time since PASH was decided? And what implications does PASH have, if any, for property rights in the coastal zone?

This comment is in three parts. Section I summarizes the PASH opinion, and concludes that the jurisdictional questions presented in the case should have resolved the case, and the court should have avoided the takings questions, and the court reached out to resolve an issue it need not have. Next, Sections II, II, and IV offer up my three main criticisms of PASH, the first on the court’s seemingly incomplete view of how Hawai‘i property law treated the right to exclude, the second on whether defining “property” for purposes of federal takings analysis is only a matter of state law, and the third on separation of powers. Finally, Section V concludes with some thoughts about how courts should consider property rights in a changing coastal environment in light of these criticisms of PASH.

Check out the symposium issue, which has similar articles from a variety of perspectives.

Takings, PASH, and the Changing Coastal Environment, 43 U Haw L Rev 525 (2021)

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 behalf of eight Justices encapsulated the crux of modern government: while government needs to be able to regulate, zealous regulators can “go too far” and, when they do, regulation becomes a taking. The Constitution drew a line in the sand that may not be crossed without consequences. Second, a cautious Supreme Court thereafter left the Holmesian standard intact and nibbled around the edges, adding alternative descriptors that confused and confounded the situation. Third, the solution to the problem of how to define a regulatory taking lies in the simplicity of the common law. One of the genius features of the common law is the jury. Over a wide variety of legal and factual situations, one thing remains true: the jury always knows the answer. Thus, what the Supreme Court needs to do to make sense of the hash that has become regulatory takings law is to sweep away the debris left by earlier decisions (specifically including any that confirmed or denied the existence of a taking based solely on the size or percentage of value impacted by a regulation) and allow the jury to examine the factual impacts of the regulation on specific property. If the jury believes that regulatory action went “too far,” that should essentially be the end of the matter. That is, in fact, what happened at the trial of Bridge Aina Le‘a, but that gets ahead of the story.

In sum, Penn Central aptly concluded that there is no “set formula” for regulatory takings because each case is sui generis and must be decided “ad hoc” on its own facts (just like everything else in American litigation).Del Monte Dunes then held that regulatory takings liability is a jury question.

Check it out. Now.

New Article: "Inverse Condemnation: Standards and Burden of Proof" (ALI-CLE Practical Real Estate Lawyer)

Worth reading: an article in ALI-CLE's Practical Real Estate Lawyer, authored by our friends and colleagues Steve Clarke, Justin Hodge, Jeremy P. Hopkins, and Christian Torgrimson, "Inverse Condemnation: Standards and Burden of Proof."

A subscription to PREL costs, but for this issue the good people at ALI have made it available for free. Lucky you. But you really should get a subscription -- PREL publishes useful articles like this frequently.

And since we're on the subject of ALI-CLE, we can't resist reminding you that registration for the 2022 ALI-CLE Eminent Domain & Land Valuation Litigation Conference is underway (including reservations for the limited room block at the Scottsdale Resort). Please register and make your plans to join your colleagues (including the authors of the article!) in January in Scottsdale.

Article: "2021 Eminent Domain Update: Key Decisions in Public Use and Just Compensation" (with Amy Boulris)

Thank you to ALI-CLE and the Practical Real Estate Lawyer for publishing an article jointly authored by us and our friend and colleague Amy Boulris, "2021 Eminent Domain Update: Key Decisions in Public Use and Just Compensation."

And a special thanks for allowing us to post and distribute it here. A subscription to PREL costs (it's a pretty good deal for a very useful publication), and it was kind of the publisher to let us post the article here for you, gratis.

Boulris & Thomas, 2021 Eminent Domain Update: Key Decisions in Public Use and Just Compensation, 37 Prac. Real Est. Lawyer 29 (Sep. 2021)

New L Rev Article: "The Dawn of a Judicial Takings Doctrine: Stop the Beach Renourishment v. Florida Department of Environmental Protection," 75 U. Miami L. Rev. 798 (2021)

Here's what we're reading today, a recently-published law review article by Brendan Mackesey, The Dawn of a Judicial Takings Doctrine: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 75 U. Miami L. Rev. 798 (2021). 

Here's the Abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), the U.S. Supreme Court granted certiorari to determine whether the Florida Supreme Court had violated a group of littoral property owners’ Fifth Amendment rights—or committed a “judicial taking”—by upholding the state of Florida’s Beach and Shore Preservation Act. Under the Act, the State is entitled to ownership of previously submerged land it restores as beach; this is true even though the normal private/state property line, the mean-high water line, is moved seaward, and the affected littoral owner(s) lose their right to have their property about the water. Although a four-justice plurality led by Justice Scalia held that that the Florida Supreme Court did not violate the Fifth Amendment in this instance, the plurality recognized that it is unconstitutional for any branch of state government to declare that what was once an established private property right no longer exists without providing just compensation. In so doing, the plurality appears to endorse a judicial taking doctrine. This Article explores the institutional and policy ramifications of such a doctrine—ultimately concluding that the due process analysis advocated by Justice Kennedy in concurrence is a better doctrinal mechanism to corral wayward judges. After exploring the procedural and federalism concerns raised by a judicial takings doctrine, the Article hypothesizes the viewpoints of several famous deceased takings scholars. The Article then evaluates the position of living taking scholars Eduardo M. Penalver and Lihor Strahilevitz, whom propose a flexible approach that considers Takings Clause and due process analysis on a case-by-case basis.

Check it out.

New Must-Read Article: Katherine M. Crocker, "Reconsidering Section 1983's Nonabrogation of Sovereign Immunity," 73 Fla. L. Rev. 523 (2021)

Here's what we're reading today. And this is one of those articles that you should not miss.

Our W&M colleague Katherine Mims Crocker has published "Reconsidering Section 1983's Nonabrogation of Sovereign Immunity," 73 Fla. L. Rev. 523 (2021).

Why is this a "must read" you ask? Because Professor Crocker concludes, "[t]he preceding Parts have revealed substantial arguments for reading Section 1983 to abrogate sovereign immunity, which would make state governments susceptible to damages actions for violating constitutional rights."

There's not a mention of our friend the Takings Clause in the article (it focuses mostly on excessive force cases), but it doesn't take much to see how the analysis Prof Crocker sets out can include section 1983 takings claims.

Here's the Abstract:

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion—in legalese, Section 1983’s nonabrogation of sovereign immunity—along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983’s enactment, the caselaw contravenes commonsense interpretive practice, works a methodological anomaly, and offends foundational democratic values. This Article also contends that the caselaw rests on inappropriate assumptions that members of Congress during Reconstruction thought about federalism the same way members of the Court a century later did.

Turning to an affirmative critique, this Article explores Section 1983’s semantic meaning and expected applications. Among other things, this analysis uncovers evidence that some members of the public may have initially understood the statute to reach states—and that members of Congress inadvertently amended the default definition of “person” in 1874. The upshot is that despite credible counterarguments, the best reading of Section 1983 may make states suable.

Finally, this Article explores implications for reforming constitutional-tort law. In particular, it introduces the policy landscape and proposes a path forward with an initial focus on Fourth Amendment excessive force claims and a gradual extension to other contexts.

Check it out.

New L Rev Article: "Givens v. Mountain Valley Pipeline, LLC and the Unresolved Circuit Split" (Tex. A. & M. J. Prop. L.)

Programming note: as we noted here, we've recently moved our email subscribers to a new service. If you are already subscribed to our email updates you should not need to do anything, except look for the emails coming from Feedblitz, not Feedburner. If you want to sign up for email updates anew, go here. If you experience technical issues, or receive duplicate email notifications, please let me know.

Now back to your regularly scheduled programming...

Be sure to take a read of an article we've had in our queue to read for a while: Karen Adlay, Givens v. Mountain Valley Pipeline, LLC and the Unresolved Circuit Split, 7 Tex. A. & M. J. Prop. L. 137 (2021).

Several federal courts of appeals -- including the Fourth Circuit in Givens -- have upheld giving prejudgment possession of property to a private pipeline condemnor once a district has ruled in favor of the pipeline that it qualifies under the three predicates to condemn private property under the Natural Gas Act, 15 U.S.C. § 717f(h). These courts conclude that summary judgment on the power to take grants a pipeline a "substantive" right, and therefore there's no reason to not give it possession now by granting a Rule 65 injunction even though in the NGA, Congress did not expressly delegate to private condemnors the "quick take" power. 

A close read of the language of section 717f(h) shows it is only about whether a private pipeline company may institute an eminent domain lawsuit to take property. In other words, whether it has standing. Summary judgment on the three statutory factors doesn't grant a "substantive" right in these type of condemnations. Rather, the substantive right in a "slow" take is ownership of the property, which will not be finally determined until after a final adjudication of compensation and payment of that compensation. Only then does title (and possession) pass to the taker. The courts' faulty reasoning is highlighted by their conclusion that summary judgment was an "order of condemnation," when as we old hands know, and order of condemnation is the final order transferring title after adjudication and payment of compensation.

This is an issue we've been following along with for a while (see here, for example). We even filed an amici brief in an earlier case presenting the same issue. The article is a good summary of the state of affairs, and makes what we think is a solid argument that the Supreme Court needs to do something about it.

From the Abstract:

The natural gas industry is central to the United States economy. However, due to vague regulations and judicial leniency, natural gas pipeline companies have almost zero restraint in exercising eminent domain. Their current operations mirror that of the federal government’s authority to exercise immediate possession. Recently, landowners have contested the pipeline industry’s authority to exercise eminent domain, which has developed into a circuit split. The Fourth Circuit, and the six other circuits that have followed suit, hold that pipeline companies have the substantive right to immediate entry and are entitled to a preliminary injunction before a trial on just compensation. The Seventh Circuit holds that the courts do not have the authority to grant immediate entry, and the pipeline company must complete the entire standard condemnation process before entering the property. In 2019, there were two attempts to bring this issue before the Supreme Court, and both attempts failed. This Note evaluates the most recent attempt in Givens v. Mountain Valley Pipeline, LLC and argues that the Supreme Court should address this issue and adopt the Seventh Circuit approach.

Check it out.

New L Rev Article: "Floods, Fires, and Inverse Condemnation"

Here's what we're reading today (inter alia): Walter W. Heiser, Floods, Fires, and Inverse Condemnation, 29 N.Y.U. Envtl. L. J. 1 (2021).

From the Introduction:

This Article examines the proper application of the doctrine of inverse condemnation in two important areas: flood damage to private property caused by a public improvement (e.g., a flood control, storm drain, or sewer project), and wildfire damage to private property caused by a project (e.g., electricity or telephone lines) undertaken by either a public or privately-owned utility. Under the doctrine of inverse condemnation, a plaintiff may recover for a physical injury to private property caused by a public improvement as deliberately designed, constructed, or maintained.

....

How courts define the standard of liability in inverse condemnation cases will become increasingly important in both the flooding and wildfire contexts. The continuing nature of climate States and more wildfires in others. This Article examines issues concerning the standard of liability in both contexts with the goal of determining their proper resolution by the courts. While the analysis will often focus on California authorities, it draws upon sources from other jurisdictions as relevant.

We recommend you check it out.

New L. Rev. Article: "Temporary Eminent Domain"

For your Monday reading, Amnon Lehavi, Temporary Eminent Domain, 69 Buff. L. Rev. 683 (2021). From the Abstract:

Times of emergency call for drastic measures. These steps may include the physical takeover of privately-owned assets by the government for a certain period of time and for various purposes, aimed at addressing the state of emergency. When will such acts amount to a taking, and what compensation should be paid to the property owner? How do temporary physical appropriations during times of emergency diverge, if at all, from temporary takeovers in more ordinary times?

The doctrinal and theoretical analysis of potential temporary takings has been done mostly in the context of non-physical government intervention with private property, such as when a local government imposes a temporary moratorium on land development until a certain condition is met. This Article focuses, however, on less investigated scenarios of temporary physical takeovers or other forms of government invasions. It seeks to identify the differences between a temporary invasion and a permanent occupation of property considered a per se taking under the Loretto rule. In so doing, this Article argues that while the alleged distinction between prevention of public harm and promotion of public benefit often proves untenable in evaluating whether a permanent government measure constitutes a taking, it might make more sense in exploring temporary acts.

Temporary eminent domain—referring here to various types of acts amounting to time-limited physical takings, even if not initially recognized as such by the government—may diverge from permanent eminent domain in yet another key element: identifying the basis for just compensation. Under long established (although often criticized) rules, compensation for a permanent taking is based on identifying the “fair market value” of the rights taken, while ignoring the effects that the public use for which the underlying asset is taken might have on the property’s long-term value.

The allegedly parallel metric used in the case of temporary takings,one of “fair rental value,” may often prove inadequate, both practically and normatively. This Article argues that because of unique aspects of temporary physical takings, legal rules on compensation should often seek to identify lost profits or actual damage. Moreover, in some cases, in which there is a direct relation between the pre-appropriation use of the asset and its post-appropriation use by the government, just compensation might also be based on a certain portion of the value of the public use. This is especially so when the time-sensitive value of the asset during such public use is particularly high. On this point, the Article offers an analogy to rules pertaining to compulsory licenses for patents.

Check it out.

New Article: "Takings, PASH, and The Changing Coastal Environment" (U. Haw. L. Rev., forthcoming)

Back in February, we were honored to be part of the University of Hawaii Law Review's symposium "25 Years of PASH," a retrospective of one of the Hawaii Supreme Court's most famous (or infamous) decisions, Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm’n, 79 Haw. 425, 903 P.2d 1246 (1993), cert. denied sub nom., Nansay Haw. v. Pub. Access Shoreline Haw., 517 U.S. 1163 (1996) (PASH). 

At the conference, we spoke on the panel about "PASH and the Changing Coastal Environment" (see video here at the 2:02:25 mark if you want to watch our panel's summations).

The speakers also produced short written comments for the Law Review's upcoming issue, and ours is finally in a shape where we think it is OK for public consumption, so we've posted it on SSRN here (or you can download the pdf "Takings, PASH, and the Changing Coastal Environment").

For those of you not totally tuned in, in the PASH case the Hawaii Supreme Court concluded that subject to certain qualifications, the Hawaii Constitution allows native Hawaiians to exercise traditional practices, even on private property, and that "[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii." Yes, the right to exclude is not "universally applicable" in the 808. Let that one sink in. (The U.S. Supreme Court denied the takings cert petition.)

From the Introduction:

The topic of this portion of the Symposium is “Takings and the Changing Coastal Environment” and in this comment I focus on the “takings” part of that title, as well as offer some thoughts on our guiding subject, the Hawai‘i Supreme Court’s decision from a quarter-century ago in PASH, which most famously noted “that the western concept of exclusivity is not universally applicable in Hawaii.” How might this statement be considered today through the lens of property law and property rights, especially if we account for the changes in the U.S. Supreme Court’s approach to takings in the time since PASH was decided? And what implications does PASH have, if any, for property rights in the coastal zone?

This comment is in three parts. Section I summarizes the PASH opinion, and concludes that the jurisdictional questions presented in the case should have resolved the case, and the court should have avoided the takings questions, and the court reached out to resolve an issue it need not have. Next, Sections II, II, and IV offer up my three main criticisms of PASH, the first on the court’s seemingly incomplete view of how Hawai‘i property law treated the right to exclude, the second on whether defining “property” for purposes of federal takings analysis is only a matter of state law, and the third on separation of powers. Finally, Section V concludes with some thoughts about how courts should consider property rights in a changing coastal environment in light of these criticisms of PASH.

The entire symposium issue should be pretty worthwhile reading, if the conference itself is any indication. Good stuff.

New Law Review Article (Ours) - "Evaluating Emergency Takings: Flattening the Economic Curve," 29 Wm. & Mary Bill of Rights J. 1145 (2021)

Wondering about so-called "covid takings" such as business lockdowns, seizures, commandeerings, eviction moratoria, and whether these might be takings?

If so, check out our latest article, Evaluating Emergency Takings: Flattening the Economic Curve, just published in the latest issue of the William and Mary Bill of Rights Journal.

Here's the Intro to the article:

Desperate times may breed desperate measures, but when do desperate measures undertaken as a response to an emergency trigger the Fifth Amendment’s requirement that the government provide just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power”—a sovereign government’s power to regulate property’s use in order to further the public health, safety, and welfare —and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. After all, emergencies do not increase government power, nor do they necessarily alter constitutional rights, and an invocation of police power by itself does not solve the compensation question, but is merely the predicate issue: all government actions must be for the public health, safety, or welfare, in the same way that an exercise of eminent domain power must be for a public use.

This Article provides a roadmap for analyzing these questions, hoping that it will result in a more consistent approach for resolving claims for compensation that arise out of claims of emergencies. This Article analyzes the potential takings claims stemming from emergency measures, mostly under current takings doctrine. Which types of claims are likely to succeed or fail? In “normal” times, it is very difficult to win a regulatory takings claim for compensation. In the midst of emergencies—real or perceived—the courts are even more reluctant to provide a remedy, even when they should, and emergencies are a good time to make bad law, especially in takings law. Can a better case be made analytically for compensation?

Part I summarizes the economic “flattening the curve” principle that motivates takings claims for compensation. Part II sets out the prevailing three-factor Penn Central standard for how courts evaluate claims that a health, safety, or welfare measure “goes too far” and requires compensation as a taking, examining the character of the government action, the impact of the action on the owner, and the extent of the owner’s property rights. Deep criticism of the Penn Central standard is beyond the scope of this Article, and here, I accept it as the default takings test. But I argue that the government’s motivation and reason for its actions—generally reviewed under the “rational basis” standard—should not be a major question in takings claims. Rather, as this Article argues in Part III, the government’s emergency justifications should be considered as part of a necessity defense, not subject to the low bar of rational basis, but a more fact and evidence driven standard of “actual necessity.” Part IV attempts to apply these standards and examines the various ways that emergency actions can take property for public use: commandeerings, occupations of property, and restrictions on use. I do not conclude that the approach will result in more (or less) successful claims for compensation, merely a more straightforward method of evaluating emergency takings claims than the current disjointed analytical methods.

In sum, this article argues there is no blanket immunity from the requirement to provide just compensation when property is taken simply because the government claims to be acting in response to an emergency, even though its actions and reasons may satisfy the rational basis test. Instead, claims that the taking is not compensable because of the exigency of an emergency should only win the day if the government successfully shows that the measure was actually needed to avoid imminent danger posed by the property owner’s use and that the restriction on use was narrowly tailored to further that end.

One final word: the editors at the Bill of Rights Journal have been fantastic to work with to get this piece publication ready. Offering helpful comments, gently suggesting that certain parts are not working (but never insisting, and giving the author a lot of discretion), and getting the citations squared away: I could not have asked for more helpful editing. Congratulations on the publication of your latest issue. 

Thomas, Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm. & Mary Bill of Rights J. 1145 (2021)

New L Rev Article: Knick Won't Mean Much Until Federal Courts Get Over "Strong Distate, If Not Outright Contempt" For Land Use Matters

R.S. Radford's most-recent article, Knick and the Elephant in the Courtroom: Who Cares Least About Property Rights? in the latest issue of the Texas A&M Journal of Property Law, should be next on your to-read list. 

Here's the summary of the article:

Throughout the thirty-four-year history of Williamson County, one fact was taken for granted. Never directly mentioned but always looming in the background of two rounds of oral argument before the Supreme Court in Knick was the premise that relegating takings claims to state court made it less likely that property owners would prevail on those claims than if they could be filed in federal court in the first instance. This Article examines that premise and finds little support for it in the historical record.

Part I of this Article discusses Williamson County and highlights the logical, doctrinal, and procedural confusion associated with the opinion, both in its conception and as the consequences of the ruling were revealed over time. It concludes with a brief review of the Knick decision, which finally laid Williamson County to rest. Part II turns to the “elephant in the courtroom”—the generally unspoken assumption that reopening the federal courthouse doors to takings claims will significantly increase the number of claims that result in awards of compensation. Part II also points out that, both before Williamson County and after, federal courts have expressed a strong distaste, if not outright contempt, for becoming involved in land-use disputes. A review of the pre-Williamson County practice of invoking abstention to clear the federal judiciary’s calendar of takings cases is followed by an examination of the extremely low success rate of takings cases that have managed to avoid both Williamson County and abstention and adjudicated on their merits in federal court. A case study of Guggenheim v. City of Goleta exemplifies the Ninth Circuit’s policy of dismissing takings challenges to regulations that predate a plaintiff’s acquisition of title—in direct contravention of the Supreme Court’s ruling in Palazzolo v. Rhode Island. Finally, the Ninth Circuit’s most recent foray into takings law, Bridge Aina Le’a v. State of Hawaii Land-Use Commission, raises the question of whether the Circuit is flouting the Seventh Amendment’s Re-examination Clause in its eagerness to set aside jury verdicts of takings liability. Part IV concludes this Article by reminding the reader that Knick has essentially returned federal takings jurisprudence to where it stood in 1984—before Williamson County cut off its development by diverting most takings cases to state court. How the federal judiciary responds to the Knick challenge will set the parameters of takings law for the twenty-first century.

7 Tex. A & M L. Rev. at 579-580 (footnotes omitted).

Radford highlights a point that we've made also (thanks for the shout-outs, R.S.) - that until the courts clean up substantive takings doctrine, the availability of a federal forum - while it will help - won't be a true game-changer.

The entire article is worth your time.

R.S. Radford, Knick and the Elephant in the Courtroom: Who Cares Least About Property Rights?, 7 Tex. A & M...

Your Friday (And Weekend) Reading: Merrill On Compensation; Epstein On Valuation

Two very interesting law review articles (essays) by well-known property experts are now available in the Notre Dame Law Review:

• Thomas Merrill, The Compensation Constraint and the Scope of the Takings Clause, 96 Notre Dame L. Rev. 1421 (2021). Professor Merrill asks "whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause." This idea is worth exploring in much greater detail, and amplifies a thought we've long had: instead of trying to forge new ground when trying to figure out whether a government action results in a taking, might it not be simpler and more consistent to look at an established body of law that truly informs the subject, valuation and just compensation? For example, see our thoughts on Murr v. Wisconsin, in which we suggested that instead of a new federal test for what qualifies as "property" in regulatory takings, that the Court simply could have looked at Wisconsin's "larger parcel" law for a well-worn answer.

• Richard Epstein, Valuation Blunders in the Law of Eminent Domain, 96 Notre Dame L. Rev. 1441 (2021), in which Professor Epstein scores some good points (naturally): "To rely on the fair market value for a property that is not for sale necessarily eliminates the owner’s surplus derived from his subjective enjoyment of the property. The resulting undercompensation thus leads to a distorted choice between public and private uses. Awarding compensation for subjective value, however, presents distinct valuation problems of its own. Hence, the gap between use and exchange value creates a constant crimp on any valuation system. The second glitch in valuation arises from an emphasis on the value of the 'property . . . taken.' Although that formulation looks expansive, it is not. If literally followed, it removes compensation for incidental or consequential damages from government takings, including, for example, site-specific goodwill, and litigation and appraisal fees, which now have become 'legislative grace,' not constitutional obligation." 

It is somewhat rare that legal scholars focus on the just compensation and valuation parts of property law and takings. Especially scholars of this stature. We think they should do it more often.

We suggest you read both of these articles; they are short, and to the point.

Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii's Emergency Authority, 43 U. Haw. L. Rev. 71 (2020)

Not our usual takings fare, but our readers are pretty forgiving about our occasional sidebars. And this one is otherwise relevant if you are wondering how governors and other executive state and municipal officials have the power to do things in events deemed to be emergencies. 

So here's the final, as-published version of the law review article we wrote up on Hawaii's emergency powers and suggestions for making the statute less bad, Hoist The Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii's Emergency Authority, 43 U. Hawaii L. Rev. 71 (2020). 

From the Intro:

Even though legal challenges to similar emergency restrictions have developed in other jurisdictions, Hawai‘i’s courts have not dealt with many objections to the governor’s exercise of these emergency powers. Perhaps because it is mostly predictable how a court would analyze a challenge to emergency powers under the U.S. Constitution. The leading U.S. Supreme Court case about the power of government to protect the public health, Jacobson v. Massachusetts, upheld the state’s vaccine requirement, concluding that a person’s liberty could be limited by reasonable regulations designed to protect “the safety of the public.” The Court based its reasoning on public “self-defense,” noting that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Even though the power cannot be exercised in “an arbitrary, unreasonable manner.” Jacobson affirmed the very low floor for most constitutional challenges to exercises of police power generally, and exercises of such power in emergencies specifically.

In this article I examine whether Hawai‘i law might compel a different analysis. Most state emergency power statutes, like Hawai‘i’s, contain internal limitations on delegated emergency power. I argue that Hawai‘i’s statute contains a single major check on the executive’s delegated authority: the “automatic termination” provision, under which an emergency proclamation terminates by law the sixtieth day after it was issued, or when the governor or mayor issues a “separate” proclamation, whichever comes first. This provision is an essential limitation on the power of the executive, with the only real question being whether that limitation will be enforced by the courts. Despite the statute’s clear limitation on power, I conclude that the circumstances in which a court would sustain a challenge to the governor’s or a mayor’s power as a matter of Hawai‘i law are very limited, and that the primary remedy which a court will likely recognize is a political one. It should not be so, however. Under existing precedents, there are at least two ways in which a court might analyze this limitation. This article examines the prominent narrative threads that have emerged from Hawai‘i’s judicial history of adjudicating claims arising out of public health crises, quarantines, and emergencies, as a way of comparing the directions a court might take.

This brings me to the title of this article, and its reference to Spam® (the canned luncheon meat, not annoying unsolicited email) . When emergencies loom, Hawai‘i residents are known to stock up on essentials like toilet paper, rice, and Spam®. If the courts are reluctant to enforce the sole limitation on executive power in the statute, then all that is left is to stock up on Spam®, keep vigilant, and hold political officials accountable. This means identifying the shortcomings in the present law and clarifying the statute at the earliest possible opportunity. This is what the article ultimately proposes. The alternative is rule by indefinite executive decree as the COVID-19 emergency starkly illustrates, a result that Hawai‘i’s emergency response statute plainly rejects.

Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii's Emergency Authority, 43...

New Takings Lawrev Article: Jessica Asbridge, "Redefining the Boundary Between Regulation and Appropriation"

Next up on our reading list: "Redefining the Boundary Between Regulation and Appropriation" (forthcoming, BYU L Rev), by Baylor Lawprof Jessica Asbridge. Available on SSRN here.

This one is especially relevant in light of the upcoming arguments in Cedar Point, which will consider many of the issues Prof. Asbridge writes about. 

Here's the Abstract:

The U.S. Supreme Court currently claims to distinguish between appropriations and regulations when interpreting the Fifth Amendment’s Takings Clause. While appropriations always require just compensation to survive constitutional scrutiny, whether a regulation infringing upon property rights requires compensation is determined on an ad hoc basis, guided by concerns of fairness and justness. In Loretto v. Teleprompter Manhattan CATV Corporation, the Court attempted to define the boundary between regulations and appropriations, holding that an appropriation occurs when a government action results in a permanent, physical invasion of an owner’s real property. What constitutes a permanent, physical invasion, however, is entirely unclear due to the Court’s inconsistent decisions applying Loretto. The circumstances under which the physical takings doctrine applies has confounded the lower courts, rendering the heightened constitutional protection for appropriative actions largely illusory.

Takings Clause scholars almost uniformly call for the elimination of the Court’s physical takings doctrine. Most, if not all, critics of Loretto argue that any distinction between appropriations and regulations should be eliminated, such that all government actions short of formal acts of eminent domain should be evaluated on a case-by-case basis, with compensation only justified where the public interest is minimal or the economic hardship on the owner is great. This approach, however, would only further weaken the protection provided by the Takings Clause.

The physical takings doctrine is unsound, but, contrary to the dominant view in the scholarship, the Court’s distinction between regulations and appropriations is not. The Court has long recognized that appropriations require compensation without regard to the public interest at play or fairness and justness concerns, as shown by nineteenth and early twentieth century cases overlooked or ignored by contemporary Takings Clause scholars. Rather than define appropriations as permanent, physical invasions, however, these cases demonstrate that an appropriation occurs when government seeks to transfer the right to use private property to a third party or the government itself whereas a regulation involves the government controlling or restricting an owner’s use of property. Redefining the boundary consistent with this historical understanding would bring much needed doctrinal clarity to takings jurisprudence and further important normative considerations. Requiring compensation for all properly defined appropriative acts furthers multiple values including autonomy and political freedom and accounts for the interests of owners and non-owners alike.

Check it out. Especially before the upcoming oral arguments in Cedar Point.

Today's Readings: "Federal Courts and Takings Litigation" (Woolhandler & Mahoney), "Swallowing its Own Tail: The Circular Grammar of Background Principles Under Lucas" (Stein)

It's Monday, so we're just going to ease into the week by (inter alia) reading a couple of law review articles:

• Federal Courts and Takings Litigation, by Prof. Ann Woolhandler & Prof. Julia D. Mahoney: "While Knick clearly expands the lower federal court role in takings claims, many questions remain, for it is not yet clear whether federal courts will embrace a robust federal judicial role in land use cases. This Article surveys the history of takings claims in the federal courts and recommends that going forward federal courts develop an abstention doctrine particular to takings cases in order to ensure prudent deployment of judicial resources. This Article also explains why § 1331 actions may be superior vehicles for takings cases than § 1983 actions."
• Swallowing its Own Tail: The Circular Grammar of Background Principles Under Lucas, by Prof Gregory M. Stein: the article "argues that the “background principles” exception that Lucas claims to have recognized is, for purely linguistic reasons, not an exception to the rule of that case. Justice Kennedy alluded to this fact in his Lucas concurrence, remarking on the “inherent . . . circularity” of the Court’s analysis. Professor Glicksman recognizes this circularity and states, even in his title, that the exception swallows the rule. The Lucas Court’s discussion goes beyond circularity, however, effectively swallowing its own tail. It sets forth a rule that at best contains two clauses that are redundant and at worst intrinsically incorporates its own inconsistent exception."

Check them both out.

Latest Issue Of The Urban Lawyer: Two Takings Theories, Home Rule, Rideshare Takings, And Vacation Rentals In The Coastal Zone

The latest issue of The Urban Lawyer, the scholarly law journal of the ABA's Section of State and Local Government Law (our Section) has been published. Takings mavens are going to like this one:

• William W. Wade, Love Terminal: A Tale of Two Theories - our friend and colleague Bill's final work.
• Kenneth Stahl, Home Rule & State Preemption of Local Land Use Control - land users and muni lawyers: read this.
• Eric Lynch, Fifth Amendment on Fifth Avenue: New York City Taxicab Medallions App-Dispatch Services & Just Compensation in Regulatory Takings - a former student of ours and now colleague, on sharing economy takings; this article began life as his final paper for our class.
• Robert Freilich, et al., The California Coastal Commission & Beach Access: The Necessity for Overriding City & County Ordinances Banning the Use of Short-Term Vacation Rentals in the Coastal Zone - analysis of an important issue, from one of the masters.
  

Get the entire issue here. To download it, you need to be a subscriber (easiest way to get a subscription: it is included in Section membership).