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Join Us For 100 Years Of Pennsylvania Coal (Pace Land Use Conference, Dec. 8, 2023)

22nd annual Alfred B. DelBello Land Use
and Sustainable Development Conference

Come, join us (and others) on Thursday-Friday, December 7-8, 2023, at Pace Law School in White Plains, New York for the Land Use and Sustainable Development Conference (this year’s conference theme is "Balancing Economic Realities with Environmental and Social Concerns").

We're speaking about the 100th anniversary of the modern regulatory takings doctrine, which got its start nearly 101 years ago with the Supreme Court's opinion in Pennsylvania Coal Co. v. Mahon, where the Court held that property may be regulated, but if the regulation "goes too far," it will be deemed a taking.

Here's a description of the program:

The 100th Anniversary of Pennsylvania Coal vs. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal

The Takings Clause and 100 years of the Pennsylvania Coal v. Mahon doctrine have become the primary check on governmental power that the Due Process and Contracts Clause used to serve, before the Supreme Court finally and formally abandoned judicial review under those doctrines during the New Deal. Mahon transcended its primary relevance as to compensation for the taking of private property to become the fundamental means by which the Rule of Law determines of the individual’s relation with the government.

This session will survey the evolution of takings law and assess its impact on federal, state and local government authority, including not only the limits of that power over private property, but how the law as created by Mahon reconciles the essential issue of an individual’s private rights as they relate to the government’s exercise of authority in the public interest. This ambitious session will predict where these trends are taking us and what constitutional, legislative, and executive initiatives should be considered.

Carole N. Brown, Esq. Professor of Law, University of Richmond School of Law
Dwight H. Merriam, Esq., FAICP, Attorney at Law
Robert H. Thomas, Esq., Joseph T. Waldo Visiting Chair in Property Rights Law, William & Mary Law School and Director, Property Rights Litigation, Pacific Legal Foundation
Gregor I. McGregor, Esq., Founding Partner, McGregor Legere & Stevens PC
Moderator: Carolynne C. White, Esq., LEED AP, Brownstein Hyatt Farber Schreck, LLP

Should be a good (and fun) program. The other programs on the agenda are also very worthwhile (we shall be attending the entire day). Registration information and the complete agenda and speaker list here.

Please stop by and say hello if if you are there.

The Queen Is Dead, Long Live The Queen(s): Introducing The "SCOTUS Ladies" Blog

Although the Dissed! podcast is no more, our colleagues Elizabeth Slattery (PLF) and Anastasia Boden (Cato) have thankfully redirected their efforts to the written form, a new law blog (how retro!).

As the title ("SCOTUS Ladies") hints, their blog focuses on the doings of a certain court in Washington, DC. Here's how they describe the project:

The SCOTUS Ladies are Elizabeth Slattery and Anastasia Boden. You may know us from our legal commentary, social media exploits, public speaking, or our former podcast about Supreme Court dissents, Dissed. ​

We're two liberty loving Supreme Court superfans with experience in the liberty legal movement, ranging from the Heritage Foundation to the Cato Institute—and a few places in between. We believe legal commentary doesn't have to be dull on the one hand or polemical on the other. And it should never be dense. We started this website so any liberty-curious person with an interest in the Court can keep up with what's happening at 1 First Street NE, read about some of the important cases being litigated by friends and allies, and have fun while doing it.

Each week, we'll preview what's coming up at the Supreme Court, flag cert petitions of note, and recap what happened inside the marble palace.

We’ll also invite others in the liberty legal movement to join us as contributors. ​ We live, breathe, and sleep the Supreme Court, so we hope you enjoy this website as much as we've enjoyed creating it!

Check it out and be a regular reader.

Here's The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

Here's the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte - Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew longstanding ones – in a welcoming environment and amongst others who share the same passion for this area of the law.

Please check it out. Over the next couple of weeks we shall bring you details of the various programs.

If you have joined us in the past, you know what a worthwhile conference this is. If this will be your first time, welcome; we hope that you will become a long-term colleague.

Register now, and reserve your spot. In the past few years, we've sold out the hotel block and the Conference seats. So don't miss out!

2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference Brochure, Feb. 1-3, 2024, New Orleans,...

20th Brigham-Kanner Property Rights Conference: Property Rights As A Means Of Human Flourishing

Professor Gregory Alexander: the newest inductee in
the Property Rights Hall of Fame

Jim Burling, discussing Prof Alexander's
property work.

Our panel at today's Brigham-Kanner Property Rights Conference at William and Mary Law School in Williamsburg, Virginia, which was focused on the work of this year's Brigham-Kanner Property Rights Prize, Prof. Greg Alexander, was tasked with addressing this topic:

"Equity has long had an influence on the delineation and development of property rights. In addition to defining the extent of property rights and influencing a court’s choice of remedies, equity has played a role in governing or managing the impact of property rights on other interests. This panel will discuss these and other topics related to the role of equity in property law, including the relationship of that role with constitutional protection of property rights."

Speakers on this topic included Profs Henry Smith (Harvard) and Samuel Bray (Notre Dame), and fellow public interest practitioner Timothy Sandefur.

Here are my remarks.

* * * *

Equity’s Role in Defining Property Rights

Congratulations to Professor Alexander on this, his latest honor.

Before we begin, I’d appreciate us recognizing the William and Mary law students, and young lawyers in attendance. Thank you for spending time here in the room, engaging on a topic – property law and property rights – that, unfortunately – and wrongly, in my opinion – is being treated more and more as an afterthought in other law schools, and legal circles. Here at William and Mary Law, we’re doubling down and maybe swimming a bit upstream, because we recognize property as highly relevant, and a subject of teaching, study, and scholarship.

I must admit to struggling with our topic: “Equity’s Role in Defining Property Rights.” Like a lot of academic descriptions, that could mean a lot of things to a lot of people.

Your world frightens and confuses me.

With apologies to Phil Hartman and Jack Handey.
photo credit: Steve Davis

It could mean “equity” in the Smithian sense. Property as formalized “law,” in contrast—or maybe not in contrast—with equity, or as he has put it “[a]n equitable safety valve”—(but perhaps a valve, like the Chancellor’s Foot, without standards). I should avoid that, I thought, because with Professor Smith here to correct me and explain it himself—in a room full of law school gunners, all I would accomplish is self-embarrassment.

Or it could mean the equitable remedy. Property, after all, supplies the one big exception to the usual rule that the usual remedy for breach of a sales contract is damages, and not an injunction. Nope, too :contracty: for today's program.

Or it could mean, as the Supreme Court held last term in Tyler vs Hennepin County (shout-out to Christina Martin up in the back row today) that “equity”—the owner's stake (her property) remaining in property after encumbrances—is private property subject to the Just Compensation requirement when it is acquired, or perhaps more conceptually, pressed into public service by dumping into the County’s General Fund. Tyler, where the unanimous Court—the unanimous Court!—recognized the very Locke-ian view that Ms. Tyler’s lifetime of labor (reduced to the money with which she acquired her home), is “private property” that the County could not simply grab because she neglected to pay her property taxes. Her “pursuit of Happiness” happened to find form in her home, and she did not forfeit that Happiness just because she neglected to pay the Crown its tithe for a year or two.

Lawprof Michael Wolf (Florida) and Christina Martin (PLF)
discussing "Emerging Issues"

But we are lucky to have Christina here, so you don’t need to hear the details from me, and she can tell you what it was like to be in the room where it happened.

Or, finally, it could be some other vision of property as a form of equity. Instead of property being viewed as a bundle-of-rights or the foundation for personal autonomy or individual liberty, it should be viewed as a set of rules applied to promote the collective good, or well-being. And who could argue for as seductive a theory whose goal is human flourishing? Is private property subject to a "reciprocal obligation" to maximize social good? To put it in private law tort terms, do property owners have a duty to rescue others whom they did not endanger? Prosser says no; why not Nichols? Indeed, both our First and Second Founders seem to have said exactly the opposite.

But as one previous Brigham-Kanner Prizewinner commented at this Conference a few years ago, that year’s Prizewinner “loves property so much, he thinks everyone should have yours.” But alas, as above, if I chose that as my gloss on property as equity, I would also be faced with the daunting task of, in effect, “talking back” to my Professor in class. I was a back-of-the-class student in law school—and even gunners know you don’t tug on Superman’s cape.

So let me lay this perhaps counterintuitive notion on you:

Private property and the individual’s right of ownership of private property—including the right to exclude others from using it, taking it, or occupying it—is at its core an equitable notion. After all, property is the great equalizer. Not in the sense that we are all guaranteed a share of the pie, but rather that ownership and protection of private property rights affords the opportunity for a share of the pie, both economically and more importantly, politically. As Prizewinner Jim Ely quoted in his book title, it indeed is the “Guardian of Every Other Right.” If you possess property – and the law protects your property rights – you have a unassailable stake in the democratic enterprise.That kind of "equity."

To illustrate that, the story of one of my mentors in the law, an Old School San Francisco trial lawyer. As a courtroom lawyer, he was a simple guy (as he always said). He was a successful courtroom lawyer back in the day before Escobido and the right to counsel and public defenders -- 22 death penalty defense cases with 21 acquittals, one hung jury --but he never practiced property law a day in his life. He had become a lawyer after growing up during the Great Depression and then somehow surviving the entirety of World War II -- December 7, 1941 to V-J Day -- as a United States Marine.

It was, in his words, lawyering was "a living," and beat storming various island across the Pacific under machine gun and artillery fire. He found success as a lawyer and bought some San Francisco property -- a home, his law office, and even a couple of residential rental properties.

As he was nearing retirement, I asked him what he would do if it all came crashing down again, just like in '29, or '41, and the world went to crap. What would you do if you had to start all over again?

He responded that he took comfort in the fact that he could always go "camp on my land." That if the world started again on the hellish path, his last line of security was his property. He'd seen rough times. Worse than any of us today ever has. And his property was the one place he could call his own. That's where he'd make his stand.

That seems true for many of us. Property is where our families are. The things we've turned the sweat of our brows into. Where we make our stand.

So should it offend our sense of equity when—purportedly in the effort to equitably ensure that no one is kicked out on the street during a pandemic—every level of government rewrites the most essential term in a residential and commercial lease—the property owner’s agreement to turn over to the tenant the right to occupy and exclude, but only as long as the tenant pays timely rent—that most courts conclude that the right to exclude – timely rent – has been forfeited indefinitely, wholly ignoring the autonomous mutual agreement otherwise. That the costs of commandeering for public pandemic housing should be borne by property owners alone.

Or should it offend our sense of equity when a municipality prohibits property owner from even asking whether a prospective occupant has a criminal record? You must include everyone. Equitable, perhaps. But not really, if instead of seeing the equitable distribution of property as the measure of human flourishing, we view property’s role as focused on its equality-forcing individual qualities.

How about when the sovereign compels a pharmaceutical company to give away its product for free, because people need it?

I don’t think this is a novel idea. The common law concepts of “property” is an equitable notion in that the custom, as determined by the community itself acting mostly through juries, established which sticks in the bundle are—in some particular application (think private nuisance law, for example)—deserving of legal protection.

Today we might call that a determination of how far may regulation go into intruding on property and property rights before it can be deemed to go “too far” and “in justice and fairness” (talk about equitable language) is a public benefit that must be borne by everyone benefited. These “ad hoc factual inquiries” (more equitable language) should, it seems, be made by the same juries that have for a millennium been determining the ultimate question in every property case: What is Property? Is the right, the autonomy, advanced by the claimant, a property right deserving of recognition in our custom?

Who better understands what outcome will maximize "human flourishing" as our Prizewinner advocates than a jury? Yet the most common refrain I hear today is about how judges should view property.

In my view, judges' views of property are less important than a jury's view.

Lawprof Molly Brady (Harvard) explaining the work
of the Restatement of Property (Fourth)

But these days, it has morphed into a judge question—the scope of the property as determined by the Chancellor’s Foot, rather than the equitable (and dare I say democratic) institution of the jury.

I think there’s no better (or perhaps “worse” is a better way to put it), illustration of the failure of the equitable power of property rights than our collective history of denying everyone the equal opportunity to own property – and every stick that comes along with ownership – (including, yes, the ability to keep it). For the longest time, the law only asked for the views of Pierson and Post, never bothering to ask the fox about his. Excluding everyone from the human right of property ownership and property rights, and their equitable effects—is a tragic story, and one that we’re presently confronting in the search for our “more perfect” Union.

Before I sum up, please allow me to take the opportunity of having the dais to venture a little off-script. We all recognize what Lynda Butler has done for this Conference, for the Property Rights Project, and for the Law School. But I want to thank you, Lynda, for being my Dirt Law Spirit Guide, and especially for entrusting me with your beloved Land Use class upon your retirement. It was then that I told myself “Robert, my boy, when Lynda Butler asks you to teach Land Use, you know you’ve made it.” Thank you, Lynda, I will never forget your trust and kindness.

Finally, being here at the lectern at the Brigham-Kanner Conference is the Property Law equivalent of standing at home plate at Yankee Stadium in October. The Super Bowl of property law and property rights. Top of the mountain. No better place.
I’m honored to be sharing this time with you.

Mr. Moderator, I yield the balance of him time. I welcome the Court's questions.

Thank you.

* * * * 

Final note: this is an excellent conference for Dirt Law practitioners, scholars, and jurists. If you have not attended in the past, you really should consider joining us for the 21st edition next year.

2023 Brigham-Kanner Property Rights Conference (Oct. 26-27, 2023)

This week is what we call Brigham-Kanner week here at William and Mary Law School. The week culminates in the Thursday presentation of the Brigham-Kanner Property Rights Prize to lawprof Greg Alexander, followed on Friday by the Conference presentations (see below).

And earlier in the week, we're having a series of law student-oriented programs, featuring sessions on "Careers in Dirt Law," "Comparative Property Rights" (feat. Toronto expropriation lawyer Shane Rayman), and "Property Rights Practice Perspective" (feat. several young lawyers -- including W&M Law alums -- who are now practicing eminent domain and takings law).

Here's the full B-K Conference program.

The Friday program includes some very intriguing topics:

• Property and Propriety (or the Well-Ordered Society): A Tribute to Gregory S. Alexander
• Equity’s Role in Defining Property Rights*
• Emerging Issues Roundtable
• The Restatement’s Impact on Property Rights
• The Scalability of Property Rights - the Extent to Which Interests in Property Are or Should be Constitutionally Protected
  

* we're speaking at this session along with Prof. Henry Smith (Harvard), Prof. Samuel Bray (Notre Dame), and Timothy Sandefur (Goldwater Institute).

2023 Brigham-Kanner Property Rights Conference Program (Oct. 27, 2023)

Links And Materials From "Inverse Condemnation & Paying for Disasters"

Yesterday, during the Annual Meeting of the Hawaii State Bar Association, we participated in a program sponsored by the Real Property and Financial Services Section, "Inverse Condemnation & Paying for Disasters."

As you can see above, we joined lawprofs Shelley Saxer and David Callies to share thoughts about inverse claims, and the difference between these property arguments and tort negligence claims.

Here are some of the key cases and materials which we mentioned (or should have):

• Lights Out In The Land Of No: The Practical Effects Of California's Wildfire Inverse Condemnation Doctrine
• Cal Supreme Court: Stop Saying Inverse Condemnation Is "Strict Liability"
• MR-GO, Katrina Flooding: Inverse Condemnation And Schlimmbesserung At The Federal Circuit
• Evaluating Emergency Takings: Flattening the Economic Curve, 29 Wm. & Mary Bill of Rights J. 1145 (2021)
• First Lawsuit Filed (Incl. Inverse Condemnation) For Maui Wildfire: Is California-Style Inverse Condemnation Coming?
• Our Drive-Time Conversation About Hawaii Inverse Condemnation And Wildfires
• Shelley Saxer, Paying for Disasters, 68 Kan. L. Rev. 413 (2020)
• Inverse Condemnation And Wildfires

To those of you who were able to join us -- mahalo!

ALI-CLE's Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here's Why.

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes, the consistent response from our participants about why the attend is the participants. The faculty and other attendees, the vendors. The collegiality, the chance to renew long-standing friendships, and especially the chance to make new friends and colleagues who share our passion for this area of law. The welcoming environment, and our desire to have lawyers and other professionals new to this area of law or new to the Bar feel at home and welcomed.

I can personally attest to that one, having been welcomed to a Conference long ago by Toby Brigham, who although he was one of the Chairs of the event, made it a point to notice that I was a new attendee, and to introduce me around to the "old hands."

We have also made a big effort in the last few years to include a range of professionals from various perspectives, including lawyers, legal academics, jurists, appraisers and MAIs, planners, right of way and relocation experts, and jury and trial consultants. Family members also welcome (there are a lot of "adjacent" social and networking events, and families are welcome as long as they don't mind a lot of "shop talk"). Our program is a mix of practical and substantive sessions.

We also have a special track on the first day of the Conference designed as a crash course in Eminent Domain law ("Condemnation 101"), which is a good place for an overview and introduction to the practice, or as a refresher course for those with more time under your belt.

In short, we try and make the Conference not just a place to learn the latest in eminent domain and related topics, but somewhere you can return to each year, and feel welcome.

So if you have not attended before, give us a try! We'd love to see you in New Orleans in just a few months. Registration and hotel reservation now open. Sign up now, and don't miss out.

Register Now For The 20th Brigham-Kanner Property Rights Conference, Oct. 26-27, 2023

Heads-up: the registration page for the 20th Brigham-Kanner Property Rights Conference, October 26-27, 2023, at the William and Mary Law School in Williamsburg, Virginia, is now up.

Early registration is a good thing because space is limited, especially at the Wren Building banquet on the 26th, at which the 2023 B-K Property Rights Prize will be presented to Prof. Gregory Alexander.

So please don't miss out.

The Property Rights Hall of Fame (second plaque)

If you are not already familiar with the Conference, it is (in our opinion) the best one-day event on property and property rights theory and practice. Expressly designed to bring together the legal academy and the practicing dirt law bar, the conference is where we discuss the burning property and property rights issues of the day. Here's the 2023 Program:

• Property and Propriety (or a Well-Ordered Society): A Tribute to Gregory S. Alexander
• Equity’s Role in Defining Property Rights
• Roundtable: Emerging Issues
• The Restatement’s Impact on Property Rights
• The Scalability of Property Rights (or the extent to which interests in property are or should be constitutionally protected)

Details here.

For more on the Conference, see our report from the 2022 Conference (more here as well).

Come, join us!

Owners' Counsel Toby Prince Brigham Scholarship - Applications Being Accepted

Two years ago, Owners' Counsel of America endowed a scholarship in the name of its founder, property rights advocate and trial lawyer Toby Prince Brigham (1934-2021). The scholarship is for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in New Orleans, Louisiana, February 1-3, 2024).

The Conference affords the Scholar an all-expenses-covered opportunity to meet and network with leading property rights and eminent domain lawyers from across the country, while also learning about property law and practice. 

Here's the official description from OCA:  

In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI-CLE Eminent Domain conference and associated OCA events held annually in January. This unique scholarship affords the student the opportunity to learn about the substantive law of eminent domain and property rights, while also meeting and networking with the leading lawyers in these practice areas from across the country. This is what the very first Toby Prince Brigham OCA scholar, Nina Sawaya, had to say about her experience:

“Thank you Owners’ Counsel of America for the opportunity to meet and learn from the nation’s leading eminent domain and property rights lawyers. While I gained significant knowledge of the substantive law, I also learned about the importance of character as a practitioner. The OCA members taught me that you can be a strong attorney for your client, while still maintaining respect for your opponent. Learning about Mr. Brigham’s commitment to inclusion inspired me to remain true to my core values, while achieving my professional goals. The entire experience was one I will never forget!”

If you are a law student with an interest in applying for this scholarship or know of someone who may be, please contact Leslie Fields, Executive Director of OCA at o[email protected] or 303-806-5155. Applications are due by October 3, 2023. 

More here, from OCA.

Toby Prince Brigham OCA Scholarship Brochure (2023)

Still Time To Join Us Wed Aug 9: ALI-CLE's "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next"

Tomorrow, Wednesday, August 9, 2023 at 1:00 - 2:00 p.m. (Eastern Time), please join us for ALI-CLE's web program, "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next."

Here's the course description:

This has been a blockbuster U.S. Supreme Court term for property law, with the Court deciding three major property cases: Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking), Wilkins v. United States (is the federal Quiet Title Act’s statute of limitations a jurisdictional bar?), and Sackett v. EPA (the scope of Clean Water Act wetlands jurisdiction). To gain a better understanding these opinions, the current state of takings and property law, and what these cases mean for your practice, join a distinguished panel of experts for this one-hour webcast. The faculty will also explore what these decisions mean for the future and what steps lawyers can take to incorporate these decisions into their practices.

Among the things we'll be analyzing and discussing:

• What happened in each case and how the Court ruled
• The practical consequences of the decisions
• What new rules practitioners must understand
• What Sackett means for the efforts to define “Waters of the United States”
• How courts will treat the question of “what is the property” in takings and eminent domain litigation
• How you can avoid statute of limitations problems
• Where the Supreme Court might be going next and what issues remain open

I'll be moderating, and joining me will be takings and property experts lawprof Emilio Longoria, and Sophia Holley (Keating Muething & Klekamp).

We will also have a preview of the 2024 Eminent Domain and Land Valuation Litigation Conference, February 1-3, 2024, New Orleans.

Come, join us. The format allows for a lot of questions, interaction, and open discussion. As usual, there are group discounts.

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...

Join Us August 9, 2023: ALI-CLE's "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next"

On Wednesday, August 9, 2023 at 1:00 - 2:00 p.m. (Eastern Time), please join us for ALI-CLE's web program, "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next."

Here's the course description:

This has been a blockbuster U.S. Supreme Court term for property law, with the Court deciding three major property cases: Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking), Wilkins v. United States (is the federal Quiet Title Act’s statute of limitations a jurisdictional bar?), and Sackett v. EPA (the scope of Clean Water Act wetlands jurisdiction). To gain a better understanding these opinions, the current state of takings and property law, and what these cases mean for your practice, join a distinguished panel of experts for this one-hour webcast. The faculty will also explore what these decisions mean for the future and what steps lawyers can take to incorporate these decisions into their practices.

Among the things we'll be analyzing and discussing:

• What happened in each case and how the Court ruled
• The practical consequences of the decisions
• What new rules practitioners must understand
• What Sackett means for the efforts to define “Waters of the United States”
• How courts will treat the question of “what is the property” in takings and eminent domain litigation
• How you can avoid statute of limitations problems
• Where the Supreme Court might be going next and what issues remain open

I'll be moderating, and joining me will be takings and property experts lawprof Emilio Longoria, and Sophia Holley (Keating Muething & Klekamp).

We will also have a preview of the 2024 Eminent Domain and Land Valuation Litigation Conference, February 1-3, 2024, New Orleans.

Come, join us. The format allows for a lot of questions, interaction, and open discussion. As usual, there are group discounts.

ICYMI: "Property Rights Hat-Trick: Breaking Down PLF's Supreme Court Victories" (vid)

Missed our law firm colleagues Jeff McCoy, Damien Schiff, and Christina Martin when they were live, talking about their SCOTUS wins in Wilkins v. United States (is the statute of limitations in federal Quiet Title Act cases a jurisdictional bar?), Sackett v. E.P.A. (scope of Clean Water Act wetlands jurisdiction), and Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking)?

We recorded it, so you can watch and listen at your leisure.

This is more than just a victory lap, the advocates offer their thoughts on the implications of the wins, and what might be next.

Bon appétit.

Upcoming Event: "The History [That Doesn't Suck] of Eminent Domain" (Wed, June 7, 5pm ET - Free!)

Mark your calendars to join us on Wednesday, June 7, 2023 at 5pm Eastern Time, as the Eminent & Right of Way Club welcomes Professor Greg Jackson, host of the History That Doesn't Suck Podcast.

We're going to have a discussion about the history of eminent domain, what zoning looked like in the 19th Century, and if the Founders planned for the infrastructure we have today.

RSVP for this Lounge Event on the App (register for the (free) Clubhouse App here).

What's this "Clubhouse" thing, you ask? More here on that. Come, join us!

Condemnation 101: Preparing & Presenting an Eminent Domain Case Webcast (May 18, 2023)

Missed out on the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference back in February in Austin, and the legendary "Condemnation 101" track?

Well, here's your chance to get the knowledge. On May 18, 2023, ALI-CLE is going live with a rebroadcast of that program, including real-time Q & A with the program Planning Co-Chairs.

As we've noted before, the Condemnation 101 program is a great "basic training" program for lawyers new to the eminent domain and takings practice. But it is also a fantastic refresher course for those experienced dirt lawyers looking to brush up on the fundamentals.

CLE credits are available, of course. And unlike the in-person program back in February, there's no danger of ice storm delays!

More about the program here, including registration information, fees, the agenda, and the faculty. And, just because you are a reader of this blog, you can get an additional $50 off the registration -- just enter COND50 in the box during checkout. Or, alternatively, bring a friend and get the group discount an even better deal.

We missed out on most of the Condemnation 101 program back in February because we had our own chairing duties in the room next door. So we may be in the audience along side of you on May 18 for this very popular and useful program.

See you there.

Watch: Cato Institute Book Forum - "Natural Property Rights" (Eric Claeys)

In case you missed it live last week, here's the recording of Cato Institute's Book Forum on lawprof Eric Claeys' forthcoming book, "Natural Property Rights." As Cato notes:

The book introduces and defends a theory of property relying on labor, natural rights, and traditional principles of natural law. Justified on those grounds, property rights protect individual freedom, but they also help government officials resolve the basic resource conflicts that arise in property law. Natural Property Rights illustrates this with examples from real estate, oil and gas, tangible personal property, water rights, government regulatory and taking powers (and constitutional limits on those).

With Professor Clayes (George Mason Law School), Matthew Cavedon (Visiting Legal Fellow, Cato Institute, and Robert Pool Fellow, Center for the Study of Law and Religion, Emory University), Chad Squitieri (Assistant Professor of Law, Catholic University), and Clark Neily (Sr. Vice President for Legal Studies, Cato Institute).

Worth watching and learning.

Condemnation 101 (2023), Redux

Missed out on the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference back in February in Austin, and the legendary "Condemnation 101" track?

Well, here's your chance to get the knowledge. On May 18, 2023, ALI-CLE is going live with a rebroadcast of that program, including real-time Q & A with the program Planning Co-Chairs.

As we've noted before, the Condemnation 101 program is a great "basic training" program for lawyers new to the eminent domain and takings practice. But it is also a fantastic refresher course for those experienced dirt lawyers looking to brush up on the fundamentals.

CLE credits are available, of course. And unlike the in-person program back in February, there's no danger of ice storm delays!

More about the program here, including registration information, fees, the agenda, and the faculty. And, just because you are a reader of this blog, you can get an additional $50 off the registration -- just enter COND50 in the box during checkout. Or, alternatively, bring a friend and get the group discount an even better deal.

We missed out on most of the Condemnation 101 program back in February because we had our own Chairing duties in the room next door. So we may be in the audience along side of you on May 18 for this very popular and useful program.

See you there.

Links And Materials From The 22d Annual Texas Eminent Domain Conference

Good crowd.

Here are the cases and other materials we spoke about on Friday at the 22d Annual Texas Eminent Domain Conference, in Austin. A big thank you to the Planning Chairs and to our friends at CLE International for the speaking invite.

• Sackett v. EPA (SCOTUS and WOTUS)
• Wilkins v. United States (Federal Quiet Title statute of limitations)
• Tyler v. Hennepin County (Takings, Excessive Fines - Home Equity Theft)
• Eychaner - the near-miss on revisiting Kelo
• Louisiana's successful (!) necessity challenge
• Self-executing Just Compensation: First Circuit (it is self-executing) vs Ninth Circuit (it isn't); see also Devillier v. Texas (pending)
• Property in the non-takings context: K-9 putting his paws on car is a "search" because...trespass to chattels

The other cases discussed are in your materials!

The nearby Caldwell County Courthouse. A classic.

Why did no one tell me that Jabba's Palace is in Austin?

Tyler v. Hennepin County Previews: Get Yourself Prepared For The Next SCOTUS Takings Arguments

Here at our law firm, we're getting ready as one of our colleagues prepares to argue the Supreme Court's next takings case in a couple of weeks. Yes, this is what we've alternatively called the "home equity theft" or the "keep the change" case where government seizes property to satisfy the owner's tax debt, and after liquidation of the property and satisfaction of the debt, keeps any excess equity instead of returning the balance to the (former) homeowner.

The case is Tyler v. Hennepin County, No. 22-166, and it's set for argument on the last day of this term's argument calendar, Wednesday, April 26, 2023.

In the meantime you should check out the parties' merits briefs and the beaucoup amici briefs (mostly filed in support of the property owner) on the Court's docket.

But you should also see what others have to say, and how they are viewing the issues. Here are several upcoming programs and an article you might want to check out:

• Deep Dive and Amicus Review: Tyler v. Hennepin County (Pacific Legal Foundation [our firm] April 19, 2023, at 2:00 p.m. EDT/11:00 a.m. PDT)
• Courthouse Steps Preview: Tyler v. Hennepin County (Federalist Society, April 17, 2023, 1pm EDT)
• ABA publishes article by True North Law’s Steve Davis on Upcoming Property-Rights Case at the Supreme Court: Tyler v. Hennepin County (April 11, 2023, via True North Law and the ABA)

Again, because this is one of our firm's cases, I won't be commenting much and will simply point you to resources. (You already know what I think about the case.)

Join Us At The 22d Annual Texas Eminent Domain Conference, April 13-14, Austin

If you are in the Austin area (or anywhere in Texas for that matter), please consider joining us April 13 and 14, 2023 for the 22d Annual Texas Eminent Domain Conference.

Two days of great programming and talking shop, plus a chance to connect and re-connect with friends and colleagues. And, of course, all the things Austin has to offer. Yes were were there not that long ago, but come on...Austin is a great conference venue, right?

We're speaking about "National Eminent Domain and Takings Trends," and the balance of the program is pretty darn good also (see here or below for the full agenda).

Registration ongoing, but space is filling up fast so don't miss out.

See you there.

Agenda & Program, 22d Annual Texas Eminent Domain Conference (CLE Int'l), Austin, Apr. 13-14, 2023)

Join Us On Wed March 8 at 4:30pm For 2023 Distinguished Gifford Lecture In Real Property - Prof Thomas Mitchell On "Heirs' Property & the Uniform Partition of Heirs' Property Act: Challenges, Solutions, & Historic Reform"

If you are in Honolulu, please join us on Wednesday, March 8, 2023, 4:30-5:30 p.m. at the University of Hawaii Law School for Professor Thomas Mitchell on "Heirs’ Property and the Uniform Partition of Heirs Property Act: Challenges, Solutions, and Historic Reform."

Our U.H. Land Use class is attending to learn more about "heirs' property" (described as "the biggest problem you've never heard of"), and so should you. Yes, Hawaii has adopted the Uniform Partition of Heirs' Property Act and we have followed this issue for some time, but if you didn't know about this, now is your chance to catch up.

Here are the details from the U.H. newsletter:

Carlsmith Ball presents the 2023 Distinguished Gifford Lecturer in Real Property, Thomas W. Mitchell. Mitchell is a professor at Boston College Law School, where he holds the Robert F. Drinan, S.J. Endowed Chair and serves as the Director of the Initiative on Land, Housing & Property Rights. He is a national expert on property issues facing disadvantaged families and communities and has published leading scholarly works addressing these matters.

In 2020, Professor Mitchell was named one of 21 recipients of the MacArthur Fellowship in recognition of the substantial impact his professional work has had in assisting disadvantaged farmers and property owners, people who are disproportionately but not exclusively African American and other people of color. He is the only lawyer in his MacArthur Fellowship class. Please join us for this Distinguished Gifford Lecture; a light reception is to follow from 5:30 - 6:30 p.m.

Come, join us for this compelling session.

Video: "Are Zoning Laws the Cause of Hawaii's Housing Crisis?" With Nolan Gray

As we wrote up here, national zoning and planning expert Nolan Gray joined our U. Hawaii Land Use class (and the public) last week for a talk about whether zoning is an impediment to affordable housing in Hawaii.

Thank you to Grassroot Institute of Hawaii for recording the talk, as well as making Mr. Gray's appearance in our classroom possible. See Grassroot's summary of his presentation here.

If you'd prefer to just listen, try this.

A National Zoning Expert Pays A Visit To The L580 Land Use Class At U. Hawaii

The session was recorded.
Here's the video and audio.

Earlier this week, planner M. Nolan Gray, author of the new book, "Arbitrary Lines: How Zoning Broke the American City and How to Fix It" (Island Press 2022) joined our Land Use class at the University of Hawaii Law School to talk about zoning and housing.

The title of his talk was "Are zoning laws the cause of Hawaii's housing crisis?" The subject matter is important, and the public was invited to join us. As you can see, there was a lot of interest in this critical topic and turnout was excellent. 

Thank you to the Grassroot Institute of Hawaii for their sponsorship of the event, and for generously getting Mr. Gray to Honolulu for his in-person appearance. It was also nice to have refreshments following class, and a chance to "talk story" (as we say) with our speaker, the students, and our guests.

Grassroot recorded the session on video, and we shall post a link to it once it is published and available. If you could not join us for his talk, be sure to watch and listen to the recording. Some very compelling stuff.

The public was also invited.
(We let them know they arrived at the right place.)


All set up and ready for our guest speaker.
Recording posted here. 

What is Zoning? A good question (the impression is that "zoning"
means all regulation of land uses). Not quite. Generally speaking, the term 
only covers regulation of use, density, and height. Getting the terms correct
is important. Mr. Gray does not advocate for tossing all regulation,
only zoning. He advocates for a more planning-centric
approach. Read his book for the details.

The heart of the matter: how and why overly restrictive zoning
(see above) inevitably restricts the supply of housing by focusing
mostly on single-family residential. Leave zoning the way it is,
and you are effectively planning for an affordability crisis.

A good, engaged audience.

Mahalo, Nolan, for coming all this way. 

We allocated plenty of time for questions from the audience.

Cases And Links From Today's Land Use Institute Session: "The Use of Eminent Domain for Redevelopment & Economic Development Projects"

Here are the opinions that we spoke about this afternoon at the Land Use Institute on "The Use of Eminent Domain for Redevelopment & Economic Development Projects."

• Redevelopment: You Can't Just Say "Redevelopment" - Take Now, Decide Later Isn't A Public Use
• Due Process: Before Taking Property, Condemnor Must Provide Notice Reasonably Calculated To Put The Owner On Actual Notice
• Scope of delegation: A Hospital Parking Lot Isn't An Authorized Reason To Take
• Necessity: No Necessity: Landowner Met Burden - Condemnor Did Not Consider Other Sites
  
• After the taking: First Circuit: "[T]he Fifth Amendment precludes the impairment or discharge of prepetition claims for just compensation in Title III bankruptcy."

Thanks for joining in.

Land Use, Hawaii Style: We're Underway With Law 580 (Land Use) At The University Of Hawaii

The Registrar would not accept our suggestion
to change the course description to "Dirt Law"

This spring, starting mid-January we've been back in a law classroom, this time at one of our law almae matres, the University of Hawaii School of Law in Honolulu.

The course is Land Use Management and Control, and we meet twice a week to earn either 3 or 4 credits (depending on how big a final paper the students want to write).

Hey, we know that fellow...

For Hawaii law students this is an essential course whether or not they intend to become dirt lawyers after graduation. Because land use law and policy cuts across almost all other areas of practice in the 808 (being a small place where land is a scarce commodity, property plays an oversize part in shaping policy, politics, and law), every law student should be taking the class. 

The view from the lectern.

Fill it with 100% pure Kona coffee, of course.

Our former viewpoint, when we were in
these seats (many years ago!).

A bimal bottle from a long-gone brand.

And since we're on the topic of Hawaii, this. A bottle from a long-ago Hawaii soda company. This was gifted recently by a friend, who is a collector of, and an expert in, these type of things. This doesn't have any direct relation to the Land Use course, but it seems like a good time to put up this interesting item, and to say mahalo for thinking to send it our way.  

There might be another motivation for being in
Hawaii during the winter...

Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past year most of us got back to some semblance of "normal," and the turnout promised to be good.

We had record registrations: with over 300 attendees, faculty, and staff signed up, things were shaping up.

Plus, we were headed to Austin, Texas. The last time we held the Conference there in 2016, we loved it so much it has been in-demand for a return visit. And this year is the debut Conference for some new planning co-chairs for both the main tracks as well as the "Condemnation 101" tracks, so the buzz for the 2023 Austin Conference was building.

But then the weather reminded us that Mother Nature is often the boss. 

Very Icy Austin on Wednesday (Conference Eve).

On Tuesday, one day before the Conference was to get underway, the 2023 Central Texas Ice Storm blew in and things were gonna get (as they say) "challenging."

Austin Airport effectively shut down with few flights in or out. Planes and cancellations stacked up nationwide. And even for those nearby, slick icy roads, and seemingly everything was closed, from gas stations to hotels to restaurants. Widespread power outages. 

Were we ready with Plan B if people couldn't get on-site? Read on.

Unless you are already here or are driving,
you ain't getting to Austin via AUS any time soon, pard.

Even flying from sunny California was a problem.

Ticket agent: Austin flight cancelled. How about flying to Houston and then driving?

Me: Sure, that'll work. Just get me to Texas and I'll figure it out from there.

Improvise, adapt, overcome: planes, trains, and automobiles (and car rentals, and long-distance rideshares, and four-layovers-from-Boise flights). Jacksonville to Austin via Chicago and Nashville.

Although those of us who made it to Austin were receiving widespread reports of people delayed and rerouted, we had only a handful who said they would not be pressing forward to get here. 

When this is what greets you when you arrive
at your conference site...uh oh.

And yes, Austin was cold and icy. Most things shuttered and widespread loss of power. But the Conference venue was up and running, and throughout the day on Wednesday, faculty, staff, and attendees were showing up. Trickling in, but showing up or on the way.

When this is what you see at the United Airlines
luggage counter, you ask yourself:
Can I make my presentation in a t-shirt and sweats? (Yes!)

We had confidence, and were prepared
for everyone to get to Austin.

So the aforementioned Plan B went into effect. Agenda items shuffled from tomorrow to today because the speaker is here, now. One speaker in the room, one speaker remote. Our audience is full of experts ... say, Billy can you pinch-hit on this panel? Sure. One speaker remoting in from his (unexpected) hotel room in Phoenix and presenting, before he went to the airport in the afternoon to continue on to Austin.

And so forth. Our long-time ALI-CLE Program Attorney, Amy Weinberg (who was delayed out of Philadelphia) was working furiously behind the scenes doing a lot of juggling, updating, texting and calling, and making alternative arrangements. And the tech team from ALI-CLE was preparing for overload if needed.

Plan A: continue to set the room up, assuming everyone is here or on the
way, and we'll have most or all of our people in the room.

Our Planning Chairs were ready, even if not
all of us were actually there (yet).

Plan B: the ALI-CLE technical crew was prepared to livestream
and record the Conference if the weather made travel
to Austin impossible or infeasible.

The tech command center.

Before we go on, a big thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.

We're underway, with a pretty good crowd.

Thursday morning, 9:00 a.m., and we're looking not too bad. A fair number of folks have pressed forward despite the weather and travel disruptions and are in the room. More report they are not tapping out, and are pressing onwards.

We have more viewers remote than we originally anticipated, but the tech is holding up.

Over the next couple of days, our lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals made their way to Austin.

The fact that folks who were experiencing some rather dramatic travel difficulties and delays (ask Jack about his late night Uber from Houston airport to Austin, or how our west coasters got re-routed all over creation), didn't quit but were determined to get to Austin told us something about why this Conference has been so successful over the decades.

It's more than great programming from the nation's experts. The Conference is also an essential venue to get acquainted with new colleagues and welcome them to the Dirt Law Bar, reconnect with long-time friends, and have a bit of fun together.

Most of the Conference attendees eventually made it, and very few (reasonably) threw in the towel and turned around for home. This was the 40th edition of the Conference, and we really know why it is one of the most-established and successful conferences in the ALI-CLE stable of programs. This year's experience really drove home why we come, and why our attendees and faculty are so dedicated and committed, despite the sacrifices we make to attend or to present. 

Hybrid: Pacific Legal Foundation's John Groen
remoting in while en-route via Phoenix, and
Baylor lawprof Jessica Asbridge on
"Everything Old is New Again: Why Today’s Practitioners
Need to Understand the Original Meaning of the
Takings and Just Compensation Clauses."


The "Condemnation 101" track was wildly popular
both with new members of the Eminent Domain Bar,
as well as old hands. Standing room only throughout the day.

We also had reports from the field that the remote viewing
was going well. Here's how we looked in the
mountains of North Carolina.

Let's not forget the substance of the Conference.
Lots of practical learning. Here's Hawaii's Mark Murakami
and Virginia's Steve Clarke on "Avoiding the Real Jeopardy:  
Structuring Eminent Domain Settlements."
And no, two-time Jeopardy! champion Steve did not
give answers in the form of a question.

Weather throughout Wednesday and Thursday was icy and nasty,
but towards the end of Thursday seemed to be clearing up.

Consequently, the view from the podium looked better and better
with more showing up and more reporting they were nearly there.

The programming at the Conference is traditionally
a mix of practical subjects and the more theoretical.
Here's one of the highlight latter programs,
Alan Ackerman (Michigan), Matthew Ackerman (also Michigan),
and Steve Davis (Missouri) on "What Does the Supreme Court
Mean When it Says Just Compensation is “Self-Executing?"

There's an ethics program, naturally, for those of us in jurisdictions
with mandatory CLE requirements. But we try and not do "typical"
(i.e., boring) ethics programs. Here's Sarah Kellner (Colorado) and
Shane Rayman (Ontario, CN) on "Ethics: Building Your Practice
by Mentoring the Next Generation of Eminent Domain Professionals."

An example of our practice-oriented programming: Tony DellaPelle
(New Jersey), Bernadette Duran-Brown (California), 
and Andrew Lines (Illinois) on "Preparing Your Expert
Witness to Shine in Virtual Proceedings:
Tools and Tips For Trial Lawyers." 

Andrew actually pretended he was far, far away for his "deposition"
when he was in fact one floor up from the Conference room.
Way to go all-in.

Thanks to our generous sponsors, we were able to avoid Austin's
icy roads and have our Mickelthwait barbecue
brought in for lunch. Was it well-received? See for yourself. Line
was through the lobby and nearly out the front door.

Thank you to Texas Supreme Court Justice Jimmy Blacklock
for speaking on "Developing Property Right Issues in Texas,
Questions and Answers with Justice Jimmy Blacklock"
(interviewed by Justin Hodge (Texas)

It was not an echo-chamber either. Here, in a hotly-debated
session, Jeff Redfern (Virginia), Steve Silva (Nevada), and
Lawprof Emilio Longoria (St Mary's Law, Texas)
debate "When the SWAT Team Comes (No) Knocking:
Police Power Takings."

Jeff, Steve, and Prof Longoria's session got everyone's blood pumping.

It wasn't all serious, and we had a bit of fun.
Like this after-hours live edition of the Eminent Domain & Right of Way
Clubhouse with Beth Smith (Wisconsin), Patrick McAllister (Indiana)
and some dude who was having a post-CLE session beer.

Some of our faculty are more formal and like to speak
standing at the lectern. Here, Pacific Legal Foundation's Jon Houghton
(New Jersey) and Ben Stormes (Montana) on
"Avoiding Pitfalls When Trying a Penn Central Case:
Lessons From the Takings Trenches."

Others are less formal, and speak while sitting
(and wildly gesticulating to make sure you are paying attention).
Kristen Renfro (California), and some guy on
"Your Regulatory Takings Case is in Federal Court – Now What?"

By Friday morning, the Austin weather was looking up. Really up.
And we nearly had everyone in the room.
By hook or by crook, most everyone was there.

By Friday were were pretty much back to normal.
Nearly all faculty and all attendees in the room.
And thus we turned it over to our Saturday morning stalwarts,
starting with Jim Burling, here speaking about "The Many Theories of
Property - Do They Matter in Court?" (and Pufendorf)

No one wanted to miss Michael Berger's "Regulatory Takings Update"
on Saturday morning either.

When you can fill this many seats at a CLE conference on a
Saturday morning after two full days of programming,
you know your speakers are the
right ones (thank you Jim and Michael).

After Jim and Michael did their thing, we held our "National Forum,"
a moderated "open-mic" session where Conference attendees
take to the podium and speak about their case or issue,
or crowdsource a question. Here, Pacific Legal
Foundation's Kady Valois, speaking about
our firm's latest takings cert grant.

We were happy to announce that the 41st ALI-CLE Eminent Domain &
Land Valuation Litigation Conference will be held February 1-3, 2024,
at the JW Marriott in New Orleans.
Save the date!

Ivy Cadle (Georgia - Go Dawgs!) is already planning his trip to
#EminentDomain 2024 in New Orleans.
See you there, Ivy.

With the programming wrapped up, it was time for farewells
and thank yous. Here, four of our law students from William and Mary Law,
who took the time out of their schedules to make their way to
Austin for some real-world learning and networking.
Well done, new colleagues!

Even after the proceedings closed, there was more work to be done.
Here, the ALI-CLE Tech Team breaks it down, after successfully
guiding us through the past four days. They are a large part of the
reason why this Conference works so well (plus, they make the
speakers look really good on camera).

To those who joined us - in-person or on-line, thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year in New Orleans...

We'll see you in New Orleans for
#EminentDomain2024!
(Want to keep the conversation going in the
interim? Join the ALI-CLE Eminent Domain Conference
page on LinkedIn.)

We're Remote, So It's Easy To Join Us For The 36th Annual Land Use Institute

Land users: come join us online for the 36th Annual Land Use Institute. Yes, the venerable program is back again, with the usual line up of dirt law experts covering all you need to know and bringing you up to speed on the latest. Here's the description of the program:

This Annual Land Use Institute program is designed for attorneys, professional planners, and government officials involved in land use planning, zoning, permitting, property development, conservation and environmental protection, and related litigation. It not only addresses and analyzes the state-of-the-art efforts by government to manage land use and development, but also presents the key issues faced by property owners and developers in obtaining necessary governmental approvals.

This outstanding program features:

• Preeminent faculty of practitioners and academics who provide nationwide perspective without losing sight of state-specific issues.
• Critical review and analysis of the most important new cases;
• Practice-oriented discussion of basics and “hot” topics;
• Guidance on routine and complex procedural issues; and
• Substantial high-quality and well-researched course materials.

Topic and speaker details in the brochure. A very modest registration (law students are free!).

Find out more here. And come join us. We'll be speaking next week Tuesday (Feb. 14, 2023) on "The Use of Eminent Domain for Redevelopment & Economic Development Projects."

LAND USE INSTITUTE - 36th Annual Land Use Conference Program

"Emerging Issues In Property Rights" - Wednesday, February 8, 2023, 3-4pm ET (Free!)

Join our Pacific Legal Foundation colleagues Jon Houghton, Daniel Woislaw, Kady Valois, and Sam Spiegelman (moderating) tomorrow, Wednesday, February 8, 2023, at 3:00 - 4:00 p.m. ET for a free webinar, "Emerging Issues in Property Rights."

Here's the agenda:

Protecting private property rights has been at the heart of PLF’s work since our founding in 1973. Our view, and that of the American Founders, is that property rights are foundational to all other constitutional rights.

Our relentless defense of property rights has secured many precedented victories, including 12 property rights wins at the U.S. Supreme Court—and counting.

Unfortunately, even today, the need for property rights champions remains critical.

Government officials too often relegate property rights to second-class status among Americans’ constitutional rights—cloaking their assaults in erroneous assertions of environmental protection or cleverly constructed land use restrictions.

To learn more about property rights’ legal landscape in 2023, join us for part two of our four-part webinar series, Emerging Issues in Property Rights. Our panel of PLF attorneys will preview the road ahead for property rights and strategies to restore these fundamental rights to their rightful constitutional status.

Join us, and register here (free!).

Hey Honolulu, RSVP To Join Us: Nolan Gray, "Are zoning laws the cause of Hawaii's housing crisis?" Feb 15 @5:30, U.H. Law School

Here's your chance to spend some time with the author of one of the hottest land use and public policy books out there, Nolan Gray.

RSVP now (admission free, but space is limited) to join our Land Use class when we welcome Mr. Gray to respond to the question in the title of this post. Details:

Date: Wednesday, February 15, 2023

Time: 5:30pm - 7:00 pm, Hawaii Time

Location: University of Hawaii Law School (2515 Dole Street, Honolulu), Classroom #3.

Cost: Free, courtesy of Grassroot Institute of Hawaii

RSVP: You must register here to reserve your place in the room.

Parking: modest fee, available at the adjacent UH parking structure.

As we noted when we featured his book "Arbitrary Lines: How Zoning Broke the American City and How to Fix It" (Island Press 2022) at the top of our dirt lawyer holiday gift guide recently, his work is an accessible summary of what zoning is and what it isn't and isn't simply a polemic, but a thoughtful laying out of why the author (a former planner for New York City) believes that zoning's time is up. The book also offers solutions for what might replace zoning (Houston, we're looking at you).

From the registration site:

Housing prices in Hawaii are through the roof. Demand outpaces supply, and many local families are saying “Aloha” to Hawaii simply because they cannot afford to live here.

So what can state and county lawmakers do to address this crisis?

Nolan Gray, a former city planner in New York City who now leads a “Yes In My Backyard” advocacy group in California, thinks a good first step would be to abolish zoning laws. In February, he will talk in depth about that provocative proposal at two events sponsored by the Grassroot Institute of Hawaii.

Gray's presentation will be on Wednesday, Feb. 15, at the University of Hawaii at Manoa William S. Richardson School of Law, Classroom 3, from 5:30 to 7 p.m. Admission is free and paid parking is available in the law school lot or the main UH parking structure.

Keli‘i Akina, Grassroot Institute president and CEO, will moderate the event, including a Q&A session.

Gray, who also is a Ph.D. candidate in urban planning at the University of California, Los Angeles, wrote about zoning codes and housing shortages in his new book, “Arbitrary Lines: How Zoning Broke the American City and How to Fix It.”

He said zoning codes go beyond general city planning, and that by micromanaging real estate usage and density have served to limit housing supply and make America’s metropolitan areas unaffordable for most residents. In addition, he said, zoning laws have contributed to greater urban sprawl and pollution.

Seating is limited, so please register early. For more information, contact Sean Mitsui at 808-864-1776 or [email protected].

Come, join us and open your mind to his intriguing proposals.

(Nearly) Last Call: There's Still Time To Join Us For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, Austin

We really want you there...

One (nearly) last reminder that there's still time to register for your space at the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 1-4, 2023, in Austin. In the past several years, we have sold out due to the conference room capacity and the conference hotel block. But there's still space, although we are nearly full. So register now - don't delay any further! 

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses
  
• When the SWAT Team Comes (No) Knocking: Police Power Takings

• Private Utility Takeovers – Lessons From a 67 Day Trial

• "Contraband": How Property Rights Helped Pave the Way for Civil Rights

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Preparing Your Expert Witness to Shine in Virtual Proceedings: Tools and Tips for Trial Lawyers

• Developing Property Right Issues in Texas - Questions and Answers from the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• the Condemnation 101 program (a one-day course for those new to the practice, or for experienced practitioners wanting a refresher)
• ...and much more!

To register, go here.

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

From The Mahon Property: Your Invitiation To The 40th ALI-CLE Eminent Domain Conference, Austin (Feb 1-4)

Neither snow nor ...

Details, including registration here. Or download the print brochure.

In the recent past, we've sold out, so don't miss out. We recently opened up a new room block, so there's still time.

Come, join your colleagues for 3+ days of the best eminent domain and related programming. And, of course, all the fun Austin has to offer.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-... b

Hawaii 5-80: Land Use Law At The University Of Hawaii

Starting in January, we'll be teaching the venerated, and oh-so-important Land Use course (Law 580) at the University of Hawaii's Law School.

We're at least temporarily stepping into some mighty big slippers (this is Hawaii, so we don't always wear shoes), as this is the course that our mentor Professor David Callies taught for decades. And is there a better venue in which to teach and study land use law and regulation, and its limits? After all, Hawaii may be the most heavily-regulated land on the planet, and is a focal point for every issue you can think of, from zoning to environmental restrictions to takings to public trust to subdivision to admin law to ... well, you get the drift.

We'll cover those topics, as well as the fundamentals. And we have a few surprises up our sleeve - some impressive guest lecturers, explorations of dirt law careers, and maybe a field trip or two. We'll bring you the highlights here, as they happen.

Is there a bit of pressure on us to get it right? You bet. But are we looking forward to it (not just an opportunity to head back to the 808, but because this is a great subject)? You bet.

Here's The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

• Private Utility Takeovers – Lessons From a 67 Day Trial

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Developing Property Right Issues in Texas - Questions and Answers from the Bench: A View From the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• ...and much more!

To register, go here.

Register now and hold your space. In the past several years, we have sold out due to the conference room capacity, and the conference hotel block. So don't delay. 

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Video: "The Future of Private Property Regulation in America"

Check it out: our Pacific Legal Foundation colleagues Jim Burling, Jon Houghton, and Jeff McCoy, along with Jeremy Hopkins (Cranfill & Sumner, North Carolina), share with us the latest on property rights, Sackett, takings, the future of Penn Central, and the upcoming SCOTUS arguments in Wilkins v. United States (is the Federal Quiet Title's statute of limitations jurisdictional?).

Don't miss it.

What's "The State of Takings Law: 100 Years After Pennsylvania Coal Co. v. Mahon and One Year After Cedar Point Nursery v. Hassid"? Incoherent (But Getting Better)

For the last week, the blog has been a bit idle. That hasn't been because we're slowing down, but was mostly the result of our blog platform being worked on behind-the-scenes, which knocked a lot of the hosted blogs offline, this one included. But things look good now, so here we are.

We were also on the road, traveling to New York for the Seventeenth Meeting of the American College of Business Court Judges, where we were able to join an august panel of takings mavens (pictured above, L-to-R: Judge Paul Wallace, Professor Julia Mahoney, some guy, Nancie Marzulla, and Professor Richard Epstein) to talk about the state of takings law.

The title of our program was "The State of Takings Law: 100 Years After Pennsylvania Coal Co. v. Mahon and One Year After Cedar Point Nursery v. Hassid," and we spent our time discussing and debating the state of takings law and theory.

When it came our turn at the mic, we started by answering the call of the question: the current state of takings law is "incoherent...but with the footnote that it appears to be getting better." We won't go into the details of why we so concluded, but you can guess: the default test for a regulatory taking, Penn Central, is hardly a model of coherence and when you add in the various procedural traps that remain, you get ... a lot of fodder for panels like these.

Our appreciation goes out to George Mason U. Law School and Professor Donald Kochan, who were kind enough to include us among these august speakers.

Brigham-Kanner Property Rights Conference Wrap-Up

The William and Mary Law School has posted David Morrill's summary of the recent Brigham-Kanner Property Rights Conference.

In addition to a full day of academic and practicing bar speakers on Friday, and the award banquet on Thursday evening, the Conference included two full days of student-oriented programming earlier in the week, where practicing land use and property rights spoke about their practices, the hot topics in the field, and how they ended up in this practice area. Every session was well attended, as the photos from the events show.

Check it out. And please join us at future Conferences!

Congratulations On Reaching The "Century" Milestone, Eminent Domain Podcast!

That's right: Clint Schumacher's Eminent Domain Podcast has reached its 100th episode. Very impressive, Clint!

And for this "very special episode," Clint was kind enough to ask us to return to celebrate. In a wide-ranging hour-plus chat, Clint and I talked property rights and takings of course, but also hit on several more philosophical subjects. If you could have coffee with any historical figure who would you choose? Pharaoh Khufu? Jack the Ripper? Winston Churchill? What person has influenced your life the most? What's on tap for the 2023 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Austin? If you had to choose a last meal, what would it be (for me, an easy question)? Clint is a generous host (and person), so I really had a good time.

One note: Clint makes it seem seamless, but I know that the behind-the-scenes process of putting together an episode is a heckuva lot of work, especially if you add it up over 100 episodes and several years, week in and week out. He's too modest to claim kudos, but I am not so reticent: we should all say a big thank you to Clint for putting the podcast out there and keeping us tied together. Please pass on your appreciation! 

We wrapped up by Clint promising me that I could be the guest on his 200th episode. I look forward to it, friend.

Brigham-Kanner Property Rights Conference 2022 Report: It's Chief Justice Roberts' Property World, We Just Live In It

We spoke on the second panel of the day at the 2022 Brigham-Kanner Property Rights Conference at the William and Mary Law School. The subject of our panel -- which included Professors David Callies, Tim Mulvaney, and Dave Owen -- was "Reshaping the Framework Protecting Property Under the Roberts Court."

Here's a rough transcript of my remarks.

--------------------------------------

President Reveley, Professor Butler, distinguished Brigham-Kanner Prizewinners (present and future), mentors, colleagues, family and friends: thank you for the opportunity to speak today.

The story goes that when asked what it was like to be a part of the "Rat Pack,*" that Dean Martin responded "It's Frank's world, we just live in it."

When I first heard the title of this portion of the program and the discussion of how and if the Roberts Court is reshaping property, my first reaction was a paraphrase of Dean Martin's quip, with a legal twist:

It's the Chief Justice's property world; we just live in it.

Now let me explain. Our session asks if the Roberts Court is reshaping the framework of property protections, and if so how.

I can answer the first part with a definitive yes. The Roberts Court is reshaping the way we look at property, and specifically the term “private property” as employed in the Fifth Amendment.

Summed up, this is property’s “moment” at the Supreme Court.

And to me, there's no question that it is the Chief who is, in Reggie Jackson’s immortal words, “the straw that stirs the drink.”

The “how” takes us to a series of decisions by the Court, most of which have seen the Chief take the lead in producing the opinion. Or at least providing the intellectual steam and the vision of how the Court views this thing called “private property” and its role in the pantheon of civil and human rights. In addition to Cedar Point, how many of the Court's property or property-related opinions has he authored? Knick. Penn East. Horne II. Murr dissent. Winter. This recent per curiam sure reads a lot like he wrote it, too. Those opinions he didn't author he played a big part in: the fifth vote in Koontz; presumably employing his role as Chief to organize unanimous or nearly unanimous decisions in Arkansas Game, Horne I, Brandt, Hawkes, and Sackett; and joining in very pro-property rights pluralities when there wasn't a majority. (Did we miss any?)

So let’s take a look at the vibe of these decisions, starting with the most recent, Cedar Point Nursery v. California. And before we go further, let me proudly disclose my bias, as my own law firm – the same law firm as our Brigham-Kanner honoree, Pacific Legal Foundation – represented the property owner in Cedar Point.

There, the narrowest framing of the issue would ask whether there’s any difference between a temporary and permanent physical invasion. The Court has already told us that a permanent physical occupation is considered a taking, which shifts the burden to the government to either pay up, or back off.

And on that, let another hat tip to my former law partners Diane Hastert and Charlie Bocken who bucked more than a century of seemingly contrary law and started us down this path with 1979’s Kaiser Aetna v United States in a decision authored by then-Associate Justice Rehnquist (who, the following Term, would be the boss of a young Harvard Law grad named John Roberts).

In Kaiser Aetna, the majority concluded that just because a navigable waterway might be subject to federal regulatory authority didn’t mean that along with the regulatory authority came the public. If those regulations invited the public to “come on in, the water’s fine,” that’s such a dramatically different nature than mere regulation, and triggered the obligation to pay compensation. Or, in that case, decide whether the price of regulation was worth the cost. It was not, and the federal government chose to back off instead of pay, leaving the owner to bar the public if it chose.

Kaiser Aetna re-introduced us to the centrality of the “right to exclude” (another hat tip to Prizewinner Tom Merrill) and the notion that permanent invasions triggered the Fifth Amendment calculus. Leaving open the natural question: what if the invasion isn’t “permanent?”

Let’s set that aside for a moment, and get to the issue the Kaiser Aetna Court was able to avoid dealing with: what might be the more difficult question of the source of the right to exclude and other property rights deemed to be within the scope of how private property is defined in the Fifth Amendment (and Kaiser Aetna was a pure Fifth Amendment case, as the federal government was the party pushing the closed gates open).

I say this was an easier question in Kaiser Aetna because there, the Court noted that under Hawaii law – all the way back to the Kingdom days – these type of waterways were not considered “navigable” in the sense we do (even though many of them were, in fact, navigable. Thus, the majority reasoned, if state law recognizes an admittedly unusual right to exclude, who are we as mere federal judges to say otherwise? On that, they were on firm footing, going at least as far back as Justice Holmes in another case out of Hawaii, Damon v. Hawaii, in which he noted in the most Holmesian language that if local law recognizes portions of the ocean as private property, then so does the Fifth Amendment.

So let’s flash forward to Cedar Point which resolved that permanent vs temporary question, holding that permanence is not the sine qua non of takings. But the Court did have to grapple with the issue of where the property interest the owner asserted was taken actually came from. (Or maybe “who” defines property.) We all know that state law is the touchstone of private property and states have a lot of latitude about how to define and redefine it. As the Court noted in Cedar Point, "[a]s a general matter, it is true that the property rights protected by the Takings Clause are creatures of state law."

But, as we all know, a state’s notion of property cannot go below the floor of the Fifth Amendment, and the Court has never countenanced state law defining property in a way that eliminates “fundamental elements” of “central importance to property ownership.” Indeed, the Cedar Point majority rejected California’s argument that state regulations limited the fundamental right to exclude). The Court held that core property right such as the right to exclude are not “empty formalities, subject to modification at the government’s pleasure.”

For that notion, I think there’s no better statement of the issue than Justice Thurgood Marshall in PruneYard Shopping Center v. Robins, where he emphasized that property includes a “normative dimension” insulated by the Fifth Amendment from state tampering. These fundamental rights protect individual autonomy:

I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common law rights by Congress or a state government. The constitutional terms “life, liberty, and property” do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.

Justice Marshall continued:

Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core” common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.

For more, see the Chief’s dissenting opinion in Murr v Wisconsin, where he argued that Justice Kennedy’s multifactor test (surprise!) for defining the denominator property in takings isn’t so much defined by state law as the baseline, but turns on a multiplicity of factors (what one advocate in that case called Penn Central squared).

The Chief argued that the question of property should always start with state law and traditional understandings (this is my property line) but doesn't always end there. And that gets me to my point here: when trying to predict what the Court might do about property and how it might analyze it, the best place to start isn't with "new property," but with old property. So dirt lawyers and scholars, dust off your Lord Coke, your Blackstone, and your Grotius. State law goes only so far, and cannot dominate the conversation and shape an owner's expectations (if expectations are even part of the calculus).

Let me suggest what some of those "normative" dimensions of property might qualify as "core" would look like. What, in addition of the right to exclude, are fundamental to the notion of property?

• The right of reverter. This is where Yee v. Escondido may come into play. If I invite you on my property subject to certain terms (you can only stay for a year or a month, or can only stay if you continue to pay rent), can the government alter that deal?
• The right to timely compensation when your property is taken.
• The right to be indemnified when property is taken. Can "other law" interfere with the natural operation of compensation? Or, what does it mean when the Court says the Just Compensation Clause is "self-executing?"

Before I sign off, let me wrap up by recognizing the people who attend this Conference. The William and Mary law students who take advantage of this great event and spend the day (or more!) with us, seeing how the things they are leaning in class are applied in the world.The alums of our Land Use course, and our Eminent Domain and Property Rights course. It was heartening to see that many lawyers who first attended this Conference as students continue to come as lawyers. And I am thrilled to see several emerging property law scholars in attendance, because among them may be the next generation of B-K Prizewinners.

And finally, to Jim Burling for his hard earned, well-deserved recognition. This Conference is the Cooperstown of Dirt Law, and I'm thrilled to be here sharing in the celebration. And if it isn't out of place, this student (and yes, I continue to consider myself a law student -- a 38L at this point) would like to honor one of his teachers. I do consider Jim Burling to be one of those legal mentors who shaped my own views of property and law.

I anticipate many years of continued studying at your side, Jim. And I might have to modify slightly my opening thoughts; I should say that it isn't the Chief Justice's property world we live in: it's Jim Burling's Property World.

Congratulations, Jim.

------------------------------------------------------------

*We refer to the Rat Pack in its Vegas iteration, not the original RP formed by Humphrey Bogart.

Still Time To Join Us (In-Person Or Remote) For The 19th Annual Brigham-Kanner Property Rights Conference

One last reminder that there' still time to register for the upcoming Brigham-Kanner Property Rights Conference at the William and Mary Law School in Williamsburg, Virginia, September 29-30, 2022. If you can't make it to the historic campus, there's an option to attend remotely.

In our opinion, the Conference is the best of its kind because it brings together legal scholars and the practicing bar to talk dirt law theory and practice. We also a have a full supplemental program for law students, that covers property law and careers in eminent domain law, a recruiting session, a program on international property rights, and a program on land use law.

Registration for the Conference is ongoing, and you can sign up here.

Here is the full agenda. (We'll be speaking on Panel #2, "Reshaping the Framework Protecting Property Under the Roberts Court.")

Come on, join us!

 

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.

Registration Underway - 19th Annual Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

There's still space for you to join us -- preferably in-person, but remotely if that is not possible for you -- at the 19th Annual Brigham-Kanner Property Rights Conference, September 29-30, 2022, at the William and Mary Law School in Williamsburg.

The American Law Institute was kind enough to post a notice about the Conference and the ALI members who are on the speaking faculty here.

Registration for the Conference is ongoing, and you can sign up here. Here is the full agenda. (We'll be speaking on Panel #2, "Reshaping the Framework Protecting Property Under the Roberts Court."

In our opinion, the Conference is the best of its kind, and brings together legal scholars and the practicing bar to talk dirt law. So please come join us.

Links From CRE's "Supreme Court Update: Is This Property's Moment?"

Here are the links to the cases and other materials that we mentioned (and some we didn't) earlier today at the Counselors of Real Estate's program on "Supreme Court Update: Is This Property's Moment?" Thank you to our colleagues at CRE for including us in the program.

I.  The evolving ground rules

• Takings cases can go to federal court:
  • Condemnation: PennEast Pipeline Co. v. New Jersey (eminent domain and the 11th Amendment)
  • Inverse and regulatory: Knick v. Township of Scott (opening back up federal courts to takings claims).
• How you define the “property” taken is key:
  • Murr v. Wisconsin (the larger parcel issue, applied in regulatory takings cases).
  • Koontz (money as property ... and exactions).
  • Brandt (easements, vel non)
• The exclusion “stick” is really important:
  • Any distinction between “permanent” and “temporary” takings is a matter of valuation, not liability: Cedar Point Nursery v. Hassid. 
  • Horne v. USDA (II) (California raisins and physical invasions)
  • Arkansas Game (physical invasions, again).
•  Remedies:
  • The remedy for a “taking” isn’t limited to just compensation: Horne v. USDA (I).
  • Winter v. Natural Resources Defense Council, Inc. (preliminary injunctions, diesel-electric submarines, and Pearl Harbor).

 II.  Issues on the horizon

• Compensation and timing:
  • what to do when the condemnor doesn’t promptly pay up?
  • what is the date of valuation?
• Ability of condemnor to define the taken property:
  • Is there an obligation to value severance damages?
  • Fee take vs easement.
  • Temporary vs permanent.
• Does the Constitution protect property’s use, or value? Police power or takings?
• Whither Yee and the future of the physical occupation rule.
• Are eviction moratoria “takings?”
• Can you really get to federal court and stay there?
• The undivided fee rule ... constitutional?

Ye Olde Law 608: Eminent Domain & Property Rights, S5E1 @ William & Mary Law

Is there a more appropriate place at which to study property rights and dirt law than William and Mary Law School? After all, it is a stone's throw from Jamestown, the place where there's a good argument the concept of property law and property rights first took hold in the New World. As noted by author David Price in "Love and Hate in Jamestown - John Smith, Pocahontas, and the Start of a New Nation" -

The introduction of private property for the common citizen had a salubrious effect on the owners' sense of initiative, as John Rolfe would observe. By the end of 1619, he reported, the "ancient" (or longtime) colonists had chosen their allotments, "which giveth all great content, for now knowing their owne lande, they strive and are prepared to build houses and to cleare their grounds ready to plant, which giveth ... greate incouragement, and the greatest hope to make the colony florrish that ever yet happened to them."

Was it a coincidence that at the same time as property rights took hold, that the seeds of representative and republican government were also planted? As Price writes:

The other major liberalization of 1619 sprang from the company's desire for "a forme of government there as may bee to the greatest benifitt and comfort of the people, and wherby all injustice grevance and oppression may be prevented." That form of government would be English America's first representative legislature. Sir Thomas Dale's authoritarian "Lawes Divine, Morall and Martiall" would be superseded by enactments of a locally elected body, to be known as the General Assembly.

And also just down the road from the Law School, coincidentally, is where the "new birth of freedom" took hold, again by way of a property-centric argument. So yes, William and Mary Law is a very appropriate venue for the study of property rights and property law.  

With that background in mind, in just over three weeks, we're about to get underway with the fall semester at the Law School, where we're again teaching two upper-division courses: Eminent Domain and Property Rights (Law 608), and Land Use Controls (Law 425). For a sampling of what we cover, check out some of the final papers our students produced last year - pretty compelling stuff.

The enrollment in the courses has really grown over the five years we've done them, which might be a reflection that the word is getting out. in the Eminent Domain and Property Rights class we cover not only eminent domain and just compensation, but takings, civil forfeiture, property theory, the cultural view of what it means to "own" something, and international approaches to property law and property rights. And, importantly, how to lawyer up these cases (this is a professional school after all). Of course, we take advantage of the opportunity to have some of the nation's best property law scholars "guest lecture" during the Brigham-Kanner Property Rights Conference. Here's the official description of the course:

Property rights and the sovereign's power of eminent domain have been essential components of Anglo-American law for centuries, and the protection of the right of private property ownership is one of the foundations on which the U.S. Constitution, the Bill of Rights, and the post-Civil War Amendments are built. This course will introduce students to the practical lawyering and analysis necessary for eminent domain practice, including the nuts and bolts of takings practice as well as the study of recent (and ongoing) U.S. Supreme Court cases. In addition, this course will focus on the history, policy, and, to some extent, the politics of property rights, eminent domain law, and related legal topics. We will examine how the right of private property was developed in common and constitutional law, the relationship of property rights to other civil rights and the sovereign's power to take land, the role of federal and state courts in protection of property rights, how private property squares with environmental law, and the proper 'place' of property rights in the modern administrative state. Course materials will be cases and selected portions of books and journal articles, and other materials which will be made available. Grading will be based on a take home paper and class participation.

The Land Use Controls class is your class land use regulation class that focuses on things like zoning and planning, the administrative process, vested rights, nonconforming uses, due process, Euclid, private land use controls, nuisance, and other dirt law topics.   

Students: it's not too late to join (add/drop will commence soon after the first day of classes). We can't promise that you will gain instant knowledge of the subjects, but can guarantee a rewarding semester taking a deeper dive, coming out of it in December with a greater appreciation of these areas of law, and a working understanding of what it takes to actually practice. Come, join us!

Here's The Full Speaker And Topic List For The Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

By now, you know that the 19th Brigham-Kanner Property Rights Conference is set for September 29-30, 2022, at the William and Mary Law School in Williamsburg, Virginia (register here - space is limited - fee ranges from free to $195 - a bargain!). And you know that our colleague Jim Burling is this year's B-K Prize winner.

But now you know who is speaking at the Conference, and the topics: here's the full agenda. The list of speakers is too long to list here but check out these topics:

• Panel 1: The Importance of Property Rights: A Tribute to James S. Burling
• Panel 2: Reshaping the Framework Protecting Property Under the Roberts Court (that's the panel we're speaking on)
  
• Roundtable: Emerging Issues in Takings and Property Rights Litigation
• Panel 3: Choosing A Property Regime
• Panel 4: Property Rights in Times of Scarcity and Crisis

Who can resist these subjects? Plan on joining join us in September.

2022 Brigham-Kanner Property Rights Conference Speaker Panels

Owners' Counsel Toby Prince Brigham Scholarship - Applications Being Accepted!

In honor of property rights advocate and trial lawyer Toby Prince Brigham (1934-2021), Owners' Counsel of America has endowed a scholarship for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in Austin, Texas, February 2-4, 2023.

In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI-CLE Eminent Domain conference and associated OCA events held annually in January. This unique scholarship affords the student the opportunity to learn about the substantive law of eminent domain and property rights, while also meeting and networking with the leading lawyers in these practice areas from across the country. This is what the very first Toby Prince Brigham OCA scholar, Nina Sawaya, had to say about her experience:

“Thank you Owners’ Counsel of America for the opportunity to meet and learn from the nation’s leading eminent domain and property rights lawyers. While I gained significant knowledge of the substantive law, I also learned about the importance of character as a practitioner. The OCA members taught me that you can be a strong attorney for your client, while still maintaining respect for your opponent. Learning about Mr. Brigham’s commitment to inclusion inspired me to remain true to my core values, while achieving my professional goals. The entire experience was one I will never forget!”

To apply or to find out more, contact OCA's Executive Director Leslie Fields. Deadline is October 1, 2022.

Toby Prince Brigham OCA Scholarship Brochure (2022)

Update: 2023 ALI-CLE Eminent Domain & Land Valuation Litigation Conference - Hotel Blocks Open; Reserve Yours Now!

The hotel blocks for the 40th ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Austin, Texas, are now open and taking reservations.

Yes, the Conference is more than a few months off (Feb 2-4, 2023), but in recent years we have sold out the room blocks at the conference rate very early, so it's never too early to reserve your room. Go to this link (the ALI-CLE web brochure) and scroll down to "Format/Venue" and follow the links from there.

You will note blocks at two additional nearby hotels in case you miss out on the Conference hotel, or simply prefer to stay elsewhere. Same or similar rates. 

For a sampling of what our Conference is all about, check out our summary of this year's Scottsdale event.

Stay tuned, we shall soon be releasing some of the details about the agenda and programming, including some of the fun stuff that Austin has to offer.

One last word: if you are interested in being a sponsor, now's the time also. We are lining up supporters and sponsors for the Conference, and some of these are "exclusive" (single-sponsor) items. So if you are thinking about it, come on down!

Brigham-Kanner Property Rights Journal Vol. 10 Now Available

In case you have not already obtained your printed copy (you really should subscribe), it is now available in pdf format.

The theme for the issue is "Where Theory Meets Practice," and with articles on "Property Beyond Flatland," "Property Rights and the Modern Resurgence of Rent Control," "Hurdles to Just Compensation," "Implied Preemption in the Regulation of Land," and "'Equitable Compensation' as 'Just Compensation' for Takings." And more.

Check out the complete article list here, or below.

And don't forget to mark your calendars for the 2022 Brigham-Kanner Property Rights Conference, in Williamsburg and the William and Mary Law School, September 29-30, 2022. Plan on joining us in the fall for what is, in our opinion, the best single-day conference on property rights.

Table of Contents, Brigham-Kanner Prop. Rts. J. vol. 10 (2021)

Hawaii Land Use Law Conference, May 25-26, 2022, Honolulu - Join Us!

It's back! After a hiatus on the in-person program, the bi-annual Hawaii Land Use Conference is back in-person (see here for a sample of one of our prior presentations at this conference).

May 25 and 26, 2022, downtown Honolulu.

The full agenda and speaker list has not yet been published, but here's a summary of the program:

Sponsored by the Hawaii State Bar Association and the Real Property and Financial Services Section. Coordinated by David Callies and Benjamin Kudo, his 2-day conference is a must attend for any attorney or professional whose practice involves land use and development. Distinguished land-use practitioners, scholars, planners, and regulators from Hawaii and the Mainland will discuss timely and relevant issues, including:

• Takings 

• Transit Oriented Development (TOD) 

• Seawalls and Shoreline Access 

• Climate Change 

• Affordable/Workforce Housing 

• Ethical Considerations for Real Property Practitioners and Other Professionals

We'll be speaking during the session on Takings, along with our colleagues Greg Kugle, Brad Saito, and Ellen Ashford.

Register here (limited to 70 registrants, no walk-ins, so be sure to get your spot now). Travel to and from Hawaii is back open and no more Co-19 hassles at the airport, so take advantage of the opportunity for a little R&R and CLE. 

As Jack Lord would say, "be there, aloha!"

Links From Last Week's Georgia Bar Association Eminent Domain Conference

Here are the links to the cases and other materials that we talked about last Friday at the Georgia Bar Association's annual Eminent Domain Conference. Our talk was entitled "It's the Chief Justice's Property World, We Just Live In It: National Trends in Takings, Property, & Eminent Domain," and was part of the Eminent Domain Section's (yes, the Georgia Bar has a Section entirely devoted to eminent domain!) annual conference on the topic. I was honored to have been asked to chat with this august and expert group of lawyers.

• Knick (opening back up federal courts to takings claims).
• Penn East (eminent domain and the 11th Amendment)
• Horne II (California raisins and physical invasions)
• Murr (the larger parcel issue, applied in regulatory takings cases).
• Winter (preliminary injunctions, diesel-electric submarines, and Pearl Harbor).
• The per curiam CDC eviction moratorium opinion.
• Koontz (money as property ... and exactions).
• Arkansas Game (physical invasions, again).
• Horne I (compensation isn't the only remedy for "takings").
• Brandt (easements, vel non)
• Help me help you!
• What to do when the condemnor doesn't promptly pay up.
• Abstention as the new Williamson County?
• The undivided fee rule ... constitutional?
• Whither Yee and the future of the physical occupation rule.

I look forward to future collaborations with our Georgia colleagues!

It's Official, So Mark Your Calendars: ALI-CLE Eminent Domain & Land Valuation Litigation Conference: Feb 2-4, 2023, Austin, Texas

When we met for the 39th ALI-CLE Eminent Domain & Land Valuation Litigation Conference in-person in Scottsdale a couple of months ago, we hinted that you'd like the venue for the 2023 Conference. We say "hinted" because without an executed contract with the venue, we could not officially announce it.

But the good folks at ALI-CLE have let us know that signed, sealed, and delivered the agreement, and that we can make the official announcement. So here it is: for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, we will be returning to one of our favorite cities, Austin, Texas. Details:

Date: February 2-4, 2023 (as usual, the week between the playoffs and the Super Bowl)

Conference hotel: Sheraton Austin Hotel at the Capitol

Programming: the same high-quality presentations you know and love.

We were last in Austin in 2016, and even though the city has undergone some changes since then, some things remain the same: central location (so it is easy to get to from nearly any airport), lots of things to do (between CLE sessions, of course!), great food and drink (so it will be easy to continue the Conference's tradition of collegiality and social events), and a high probability of pleasant weather in February. 

We had a great turnout in Scottsdale earlier this year, and had standing room only when we last were in Austin, so let's keep it up. Please plan on joining your colleagues in 2023, and make the turnout even greater.

The Conference block at the hotel is not yet open, but will be shortly. We shall post notice as soon as you can register and reserve your room and space at the Conference. In the meantime, hold the time on your calendars, and stay tuned.