Virginians: now is a good time to register for the Virginia Eminent Domain Conference, May 8-9, 2025, at the Kingsmill Resort in Williamsburg.
We have spoken and attended the Conference in past editions, and can report that it is excellent. We're looking forward to joining friends and colleagues again in The Burg in the spring. Check out the faculty and agenda, and then register and reserve your spot.
We'll see you there.
Texans: now is a good time to register for the 24th Annual Texas Eminent Domain Superconference, March 27-28, 2025, at the Austin Country Club in Austin.
We spoke at the Conference a couple of years agolast year and in other editions, and can report that it is excellent. Check out the faculty and agenda, and then register and reserve your spot.
If you are looking for us tomorrow but we don't respond, that's because we'll be in the audience in rapt attention at "Property Rights and the Roberts Court, 2005-2025" at the U.C. Berkeley Law School (fka "Boalt Hall").
Here's the description:
For much of the past century, property rights were relegated to second-class status compared to the rest of the Bill of Rights. However, under the Supreme Court leadership of Chief Justice John Roberts, this trend has begun to shift.In recognition of the 20th anniversary of the Chief Justice’s elevation to the Supreme Court, Pacific Legal Foundation is partnering with Berkeley Law’s Public Law and Policy Program to host a day-long conference exploring the major property rights developments and future of property rights law in the Roberts Court.We’ll hear from two different panels of renowned legal scholars and accomplished litigators, as well as a keynote lunch discussion between Richard Epstein, director of the Classical Liberal Institute and law professor at NYU School of Law, and John Groen, executive vice president at PLF.A catered lunch will be provided.Here's the agenda. See you there.
Property Rights and the Roberts Court Agenda (Feb. 27, 2025)
Registration is open and underway for this year's edition of the Rocky Mountain Land Use Institute in Denver, March 5-7, 2025. Location: University of Denver Sturm College of Law.
This conference is more what we'll call "land usey" than ALI-CLE's Eminent Domain & Land Valuation Litigation Conference (as the respective titles suggest), but there's a lot at RMLUI for those whose practices lean more on the eminent domain side than the land usey. As we know, any attempt to draw a clean line between these practices is futile, and there's tons of crossover. That's why we'll be there, downloading the latest.
As always, there's a great a la carte menu of programs and tracks for attendees to choose from, including sessions on "Sheetz and Exactions," "Brownfields Re-Re-Development," "Managing Growth and Infrastructure in the Southwest," "ADUs for Aging in Place," and, thankfully, "Legal Ethics." And some add-on workshops the day before if that's your thing. Check out the full range of programming here.
Here's the full description of the conference, via RMLUI's website:
Western communities, and the infrastructure and regulatory systems that they depend on, are experiencing the challenges associated with aging. As we invest in foundations for the future, we need to address those challenges and seize opportunities presented as we adapt. The 2025 Western Places | Western Spaces conference will explore the best ideas for how communities can update their planning processes, their infrastructure, and their regulatory systems to meet the moment.Join us for Rocky Mountain Land Use Institute's 2025 conference, featuring focused tracks on:Aging Physical Infrastructure / Aging Intellectual Infrastructure / Aging Population
You can also expect a variety of great sessions addressing:
- Housing
- Energy
- Water
- Transportation + Mobility
- Small Towns & Rural Communities
- Land Conservation & Open Space
- Climate & Disaster Resilience
- Legislative Developments & Legal Issues
- Tools & Technologies
- Equity, Diversity & Inclusion
- Professional Responsibility & Ethics
Perhaps best of all, you will have the opportunity to network with an extraordinary group of thought leaders and practitioners who are working at the vanguard of planning and land use law to build a stronger, more equitable, and more resilient region.Look for us in the back of the room, eagerly taking notes. Stop by and say hi, if you are so inclined.
That was quick: no sooner are we all headed home from the just-wrapped 2025 ALI-CLE Eminent Domain & Land Valuation Litigation Conference in San Diego (report to follow soon), than Bobby Debelak posts up his report in the latest episode of the Eminent Domain Podcast -
Featuring Chris Clough, Angela Misch, Clint Schumacher, and Elizabeth Sockwell.In this episode, we interview a handful of guests--presenters, first timers, and repeat attendees from the 2025 ALI-CLE Eminent Domain and Land Valuation Conference.Note: Next Year's conference will be in Savannah, GA.
Stream the episode above, or download it here.
And yes, we're sporting our newly-acquired EDP pin:
Register now and plan on joining us on Thursday, February 27, 2025 at the U.C. Berkeley Law School for a one-day conference: "Property Rights and the Roberts Court: 2005-2025."
Here's the agenda. Here's a description of the program:
For much of the past century, property rights were relegated to second-class status compared to the rest of the Bill of Rights. However, under the Supreme Court leadership of Chief Justice John Roberts, this trend has begun to shift.In recognition of the 20th anniversary of the Chief Justice’s elevation to the Supreme Court, Pacific Legal Foundation is partnering with Berkeley Law’s Public Law and Policy Program to host a day-long conference exploring the major property rights developments and future of property rights law in the Roberts Court.We’ll hear from two different panels of renowned legal scholars and accomplished litigators, as well as a keynote lunch discussion between Richard Epstein, director of the Classical Liberal Institute and law professor at NYU School of Law, and John Groen, executive vice president at PLF.A catered lunch will be provided.
Register here.
Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.
The 41st Conference was in New Orleans. Here's a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.
Here are some of the highlights of the upcoming Conference:
- Property Rights at the Supreme Court: DeVillier and Sheetz and What's Next
- Slow Take: Possession, Rent, Relocation, and Offset
- The Jury's View: How Jurors See Your Case
- From Penn Coal to Penn Central: How to Prove "Too Far"
- Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
- Kelo at Twenty: What Changed, What Didn't, and What's on the Horizon
- Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land's Inverse Condemnation Taking
- Ethics: Guiding the Trolley: Perspectives on Professional Ethics in Eminent Domain for Lawyers, Appraisers, and Right of Way Agents
- "I Think I Shall Never See" Just Compensation For a Tree: Strategies to Securing Recovery for Trees, Crops, and Fixtures
And more. Check out the complete agenda here. Registration information here.
We especially welcome first-time participants, or those returning after an absence. Connect (or reconnect) with your colleagues from across the nation.
Don't miss out: we have had record attendance in recent years, so hold your space now.
Come, join us!
Like most "paranormal caught on camera" shots,
this one is grainy. But you can just make Mr. Jefferson out.
Colonial Williamsburg is adjacent to the William & Mary Law School, so from time-to-time, we'll take a walk over just to soak up the atmosphere. The vibe picks up in the autumn season, when the leaves are turning and there's a slight chill in the air. We try to time these visits for the evenings, because the atmo is particularly intense.
And so it was yesterday afternoon and into the evening, as we were walking about CW that we happened to run into Thomas Jefferson, Esq., an up-and-coming Williamsburg lawyer, who was kind enough to spend a bit of time chatting. At the end of an educational and enjoyable conversation, we shook hands and went about our business.
A paranormal encounter with the spirit of Mr. Jefferson, author of the Declaration of Independence and the Virginia Statute of Religious Freedom? Had your blogger perhaps indulged in too much at the nearby meadery? Who ya gonna call, Ghostbusters?
No, not quite. But very close. We know we used a clickbaity title to get you to read this post, but we're not being entirely accurate. We did not actually meet up with the otherworldly essence of Thomas J, or the ghost of lawyers past.
But we came about as near as you can without actually holding a seance.
Every year, the W&M Legal History Society asks the fellow who portrays Mr. Jefferson at CW to speak to law students and lawprofs, and offer his thoughts about the legal profession, the study of law, his practice, and his life.
Not only does he do so with admirable candor (and even at times humor), he has always been willing to respond to some very difficult questions about his life, his philosophy and politics ... and his personal conduct.
TJeff recounted studying law at William and Mary in
the building behind him, now the Governor's Palace.
The Society was kind enough to allow me to join them again, and we gathered at the home of Jefferson's mentor-in-law, George Wythe. After some questions and answers there, we walked a short distance to what is now known as the Governor's Palace in the heart of CW, but back in Jefferson's day was the building in which he studied law under Mr. Wythe's tutelage.
He discussed what he considers it his crowning achievement (our words, not his; he tends to avoid "crown" puns) -- the the Declaration of Independence, the Lockean theories behind it.
Locke wrote about life, liberty, and property, so why did Mr. Jefferson replace that last part with "the pursuit of Happiness?" What were you thinking? Using pursuit of happiness, he explained, was his way of suggesting that the purpose of government isn't limited to securing the right to property, but to something larger. Of course, acquiring and possessing property is a large part of happiness, but isn't all of it. It ties back to the notion that all men are created equal, he noted, because it includes people without property.
Jefferson also spoke about other issues, such as republicanism vs democracy, public virtue, the study of law, and even about his favorite violin piece.
Mr. Jefferson remembering final exams
at William & Mary Law School. That darn curve!
To his credit, he was candid about his own faults and responded frankly to some pointed inquires from the law students. He acknowledged that he was hardly perfect, or even good. But he did point out that he was considered a class traitor at the time by his Virginia and southern peers for even suggesting that slavery should be abolished (as proposed by his draft Virginia Constitution, authored at the same time as the Declaration but never adopted), and for including a section in the draft Declaration (also stricken from the final version) pointing the finger at His Britannic Majesty for saddling the colonies with with what he described as a "cruel war against human nature itself," that violated the "most sacred rights of life & liberty in the persons of a distant people who never offended."
Pointing out as well a case from his Williamsburg law practice ("which I argued over in that building" he noted, pointing to the actual courthouse in which the Virginia General Court, the highest court in the Colony sat), Howell v. Netherland (1770).
There, Jefferson argued for more freedom not less, in case involving the legal indentured servitude of the grandchild of a mixed-race couple. He pointed out that his mentor Wythe represented the master (small town barrister practice often means you take the case as it comes, with your friends taking the other party), and that Jefferson lost the case.
All of the above, Jefferson suggested, should count for something when history judges me. We shall see, Sir.
Note: the fellow portraying Jefferson is outstanding, and looks and acts and speaks in a manner of what we imagine Jefferson to have been like, right down to acknowledging that he was not a great orator and expressed himself better in writing.
He never once broke character, and played his part so well that at times we had to remind ourselves that he is portraying Thomas Jefferson, and was not the actual Thomas Jefferson standing before us. It is funny how your mind can break down reality, sometimes. I guess this is why we enjoy plays and movies. After the students departed, I shook his hand to thank him for devoting his time to educating William and Mary law students that laws are made my decidedly imperfect people trying to create a "more perfect" union.
So yeah, maybe I kind of did shake hands with Mr. Jefferson last night.
On Monday, we joined our land use colleagues Dwight Merriam, Professor Shelley Saxer, and Professor David Callies for the Hawaii Bar Association's Section of Real Property and Financial Services program, "Property Rights & Regulatory Takings," a wide-ranging and very well-attended program for Hawaii dirt lawyers.
As the above photo notes (L to R: Charles Nelson Reilly, Dwight Merriam, Shelly Saxer, David Callies), we were not able to be in the room with our colleagues, but had to remote in, as our duties at William & Mary Law School kept us in Virginia and not able to be in downtown Honolulu at the same time. Ah well!
Here are the cases and materials we discussed:
- State of Hawaii v. Williams (Intermediate Court of Appeals, Summary Disposition Order): property owner should not have been prohibited from introducing evidence of the current use of his property at the time of the taking as the highest and best use for valuation purposes.
- City & County of Honolulu v. Victoria Ward, Ltd. (Hawaii Supreme Court): most valuation issues are for the jury, and summary judgment should not be used beyond its usual application to screen out valuation theories or expert testimony, as long as that testimony meets the usual standards for admission.
- Quick take as an Erie Procedural Question (U.S. District Court): the Hawaii eminent domain code's immediate possession section is procedural, thus does not govern in a county-instituted eminent domain case removed to federal court.
- Land use: Is a government-imposed "church purposes" deed restriction void? (Hawaii Supreme Court). Argued but not yet decided.
- Promising Public Use cert petition denied by SCOTUS (U.S. Supreme Court).
- Hawaii courts avoid the unsettled question for wildfire liability: what model, California (inverse) or other courts (torty)?
- Trial court concludes moving the public/private boundary on beaches mauka is a taking (Rhode Island Superior Court).
- Defining property "sticks" is not only a matter of state law (U.S. Supreme Court): Unanimous SCOTUS in Tyler concludes "private property" is not wholly subject to state law definition.
- Shands v. City of Marathon: a total (Lucas) taking for downzoning (Florida Court of Appeal): beekeeping isn't enough use, and TDRs go to compensation, not liability.
It was good to catch up with long-time dirt law colleagues and friends. Aloha!
Lawprof Ilya Somin (GMU Law), Mercatus Center's Charles Gardner,
and lawyer Emily Cruikshank Bayonne (Tubman Realty, LLC)
speaking on "How Policy Changes Can Address Incursions on
Property Rights Where Courts Have Failed to do So."
Jim Burling (PLF) moderating.
Recently, we attended a wonderful symposium co-sponsored by George Mason Law School's Journal of Law, Economics & Policy (congratulations to the student editors who ran the show that day), and our outfit Pacific Legal Foundation. Of course, with the subject being "Imagining the Future of Regulatory Takings," how could we resist attending?
If you missed it, it was not recorded unfortunately. But stay tuned for the full published symposium issue which shall include all of the articles and other pieces the speakers presented that day.
PLF's Ethan Blevins kicked off the day by
urging the speakers and the audience to
"make property rights cool again."
Brian Hodges (PLF) and Amy Boulris (Gunster)
on land use conditions, exactions, and unconstitutional conditions.
Circuit Judge (ret.) (and California Supreme Court Justice),
Hon. Janice Rogers Brown presented the keynote address
and responded to participants' questions.
Lawprof Donald Kochan (GMU), Lawprof Adam MacLeod (St. Mary's),
and Sam Spiegelman (Citizen Action Def. Fund)
started the day off with "Fixing the Text -
How We Can Better Approach Regulatory Takings."
Moderator: Judge Andrew Brasher (CA11).
The day's final program was "Takings on the Ground - Applying the
Takings Tests in Challenging Scenarios" with
lawyer William Shadbolt (Washington Bus. Properties Ass'n),
Lawprof Eric Claeys (GMU), and Michael Berger (Manatt) (aka Big Brother).
Moderator: Judge Ryan Holte (Court of Federal Claims).
Hawaii lawyers (and those barred in the 808), take note: On October 21, 2024, the Hawaii State Bar Association will hold its annual Convention, and as always there's a full lineup of CLE programs so you can meet your MCLE requirements.
Thanks to the Real Property & Financial Services Section, there's a significant dirt law component. First, there's "Property Rights and Regulatory Takings" the program on which we are presenting along with Dwight Merriam and lawprof Shelley Saxer. Here's the official description:
This course will provide a survey of property rights and regulatory takings with an emphasis on recent decisions from the United States Supreme Court. Panelists include distinguished faculty and practitioners that will address impact fees, development rights, taking claims, rent controls, and other current issues.
Following us will be a program on "Land Use Conditions" with Cal Chipchase, Brad Saito, and a lawyer from the State of Hawaii Attorney General's office:
This course will provide a survey of the regulatory systems that govern land use in the State of Hawaii. Panelists will discuss regulatory frameworks at the state and city level together with recent legal developments from the Hawaii Supreme Court
You can attend in-person or remotely. This page has the registration information as well as more details and bios of the speakers.
As Jack Lord used to say: "Be here, Aloha."
Here's the full report from David Morrill about the 21st Brigham-Kanner Property Rights Conference earlier this month. Pictured above: Professor James Stern (responsible for the overall planning of the B-K Conference), this year's Prizewinner Professor Lee Fennell (U. Chicago Law School), and Andrew Brigham, St. Augustine, Florida - property rights lawyer extraordinaire).
Here are what Prof. Fennell had to say:
Upon accepting the Property Rights Prize, Fennell said that spending time in myriad places through the years piqued her interest in how property can work better for complex systems like large and interconnected cities and ecosystems. In the process, she tried to learn more about what sorts of interconnectedness matter most for humans and other animals, and what forms of adaptability and property forms can best serve needs going forward.“We can’t make any headway on property as an institutional response to interdependent systems without practicing interdependence ourselves, getting together and sharing knowledge and ideas,” Fennell said. “And I can’t imagine any better place to do that than at this conference, which throws together a bunch of people who can’t get property out of their systems.”
Fennell said she was “incredibly honored, amazed, and delighted” to be receiving the Brigham-Kanner Prize. “It’s an astonishing privilege to be joining the ranks of all of the esteemed past winners and all of the esteemed future winners of this wonderful award, and I am so grateful to be celebrating with all of you in this incredibly old room.”
The week also included several student-oriented programs, including visits to our two classes (Land Use, and Eminent Domain and Property Rights) by property law practitioners from across the country, to discuss a variety of topics with students, including careers in property law, pathways to practice, and public service vs private practice.
Kady Valois (Pacific Legal Foundation, FL),
Randy Smith (Smith & Fawer, LA),
and Elizabeth Sockwell (W&M Law JD 2023)
(Miller Miller & Canby, MD) discuss "Pathways to Practice"
Jeremy Hopkins (Cranfill Sumner, NC) speaks to our Eminent Domain
class about how and why he chose property rights lawyering
as a career, and how students can enter that profession
if they have similar desires.
Steve Davis, who is now a public-interest lawyer (PLF),
but who also has a varied background in public service (AUSA),
private practice (True North Law), and as legislative counsel,
speaks about the differences between these pathways in the profession.
Xijia Yuan (Troutman Pepper, VA) (and a former student of ours)
discussed with our Land Use class the excitement of
being a transactional real estate attorney. There are multiple
paths in Dirt Law, and lawyers are not limited to courtroom advocacy.
Heather Cunningham (Owners' Counsel of America, ID), speaks about
her time in a smaller, rural private firm, and her current role
as Executive Director of a non-profit.
Andrew Brigham (Brigham Property Rights Law Firm, FL) chats with
Land Use students about ways to enter the Dirt Law Bar, and why he
loves a property law practice.
We're thankful that real, live, practicing lawyers (including two W&M Law
alums (Brett Tensfeld, JD 2016), and Xijia Yuan (JD 2022) took the time
to come our classes to talk about what its really like in the Dirt Law trenches.
There's still time to join us next Friday, October 4, 2024, at the Antonin Scalia Law School (George Mason University) for the symposium "Too Far: Imagining the Future of Regulatory Takings."
Co-produced by our outfit (Pacific Legal Foundation) and the Journal of Law, Economics & Policy, the symposium will feature the most cutting-edge legal academics and courtroom practitioners discussing what is on the horizon in regulatory takings. Here's the description of the program (full agenda and presenter list below):
A century ago, Supreme Court Justice Oliver Wendell Holmes cautioned government that if property regulations went “too far,” they would be “recognized as a taking.” Flash forward to today, where governments are constantly trying to push the limits while the courts struggle to define what exactly “too far” means.Join Pacific Legal Foundation and George Mason University’s Journal of Law, Economics, and Policy for a day-long symposium featuring presentations on property rights and the future of regulatory takings.
Come interact with property rights scholars and enjoy a lunch featuring our keynote speaker, the Honorable Janice Rogers Brown. The symposium will conclude with a reception, where attendees will have the perfect opportunity to network with fellow lawyers working to rein in property regulations.
Registration is free. Come, join us!
Agenda, "Too Far: Imagining the Future of Regulatory Takings" (Oct. 4, 2024)
The 21st Brigham-Kanner Property Rights Conference is underway at the William and Mary Law School. We have a series of student-oriented programs (co-sponsored by the Office of Careers Service),
Tomorrow, lawprof Lee Anne Fennell of the University of Chicago Law School will be presented the Brigham-Kanner Property Rights Prize for her work on "how property rights are structured and imagined, and the implications that different possibilities hold for the allocation of resources and the way societies are organized. She has cast these issues in terms like 'slices' versus 'lumps,' 'unbounded' homes, 'half-torts,' and 'streaming property.'"
On Friday, there's a series of presentations on the impact of Professor's Fennell's work and other hot topics in dirt law. Full agenda here or below.
We are fortunate enough to be the referee -- uh, "moderator" -- for the group discussing what we see as the hottest issue in the field: housing. The title of our program is "Property Rights and Housing in Crisis," and features some of the deep thinkers on this topic:
Shelter is a fundamental human need, and housing is a major component of the U.S. economy. Home ownership has been considered a cornerstone institution of civic life, closely linked with the American dream. Over the last 50 years, median house prices in the U.S. have more than doubled in real terms, significantly outpacing wage growth, and more recently, the residential rents have also substantially outpaced inflation and wages, prompting declarations of a housing crisis. This panel will examine issues connected with the present state of housing in the United States and the role property rights can and should play when it comes to housing.
Professor Fennell will be joining a pantheon of the biggest names in dirt law academia and practice.This is the Super Bowl of property law as we've said before.
If you are not joining us this year, please consider it for the future. You will not be disappointed.
Yes, the mysterious ducks remain -- and seem to have multiplied.
It's that time of the year again. Fall's-a-coming, and that means that starting today, we're back at the William and Mary Law School in Williamsburg, Virginia to lead two courses:
- Eminent Domain and Property Rights (W&M is one of the few law schools in the country that offer a course in eminent domain, just compensation, and takings)
- Land Use Controls (an especially hot topic at the moment)
The registration numbers for both courses are good (really good), and two full classrooms of Dirt Law goodness tells us something about this area of law -- it's really interesting, and a good place to make your way in the practice, and law students recognize that.
We don't use $400 casebooks in either class.
Time to jack back into the (takings and land use) Matrix.
Come join us in Williamsburg, Virginia at the William and Mary Law School for the 21st edition of the Brigham-Kanner Property Rights Conference. The Conference is unique, because its express purpose is to bring property legal scholars and property law practitioners together to discuss, what else, property and property rights law.
Yes, there's a healthy dose of theory and academics, but also the real-world perspectives of practicing lawyers who bring the cases that put theory into practice. (New to this event and want a preview? Here's our write-up of the 2024 Conference.)
More details here. Register here.
The days prior to the Conference launch on Thursday All that week, we're putting on student-oriented programming.in conjunction with the WM Law Career Services Office. Sessions on "Careers in Dirt Law," "Land Use and Real Estate Law in Practice," and "Comparative Property Rights," for example, presented by experienced practitioners including W&M Law alums who now are lawyers in the field. Thursday is the Wren Building dinner at which lawprof Lee Fennell will join the pantheon of past winners, and will be awarded this year's Brigham-Kanner Property Rights Prize.
Friday brings us to the academic portion, where five panels of national expert legal scholars and practitioners. Here's the agenda:
- Restructuring Property: A Tribute to Lee Fennell
- Background Principles, General Law, & Constitutional Property
- Roundtable: Unfinished Business & Emerging Issues
- Property Rights and The Housing Crisis
- Government Trespass: The Open Fields Doctrine Turns 100
Register now and plan on joining us!
If you are in the California Southland (or plan to be in the next week), please be sure to reserve on your calendar Tuesday, August 13, 2024, to join us in-person for the launch of our colleague Jim Burling's forthcoming book, "Nowhere to Live: The Hidden Story of America's Housing Crisis."
Here's a blurb about the book, which is available for preorder on Amazon:
A century of policy mistakes ruined America’s cities and created an unprecedented housing crisis.
For many families, homelessness is no longer someone else’s problem. It is right around the corner, a real threat in their own immediate future. Our housing crisis is the result of a long history of government policies, court cases, and political manipulation. While these disparate causes make up a tangled web, they have one surprising root: the attack on private property rights. For more than a century, government policies and court decisions have attacked, undermined, and eroded private property rights. Whether it be exclusionary zoning, eminent domain abuse, rent control, or excessive environmental regulations, the cumulative impact of these assaults on private property is that it’s become increasingly difficult—or even impossible—to build adequate housing supplies to meet market demands. We are fast approaching a time when millions of typical Americans will, quite literally, have nowhere to live.
Nowhere to Live: The Hidden Story of America’s Housing Crisis, takes readers through the history of how we got here. With stories going back to the Civil War, the early twentieth century, and the ill-fated “urban renewal” movement of the 1950s, Nowhere to Live reveals how the government layered mistake upon mistake to create the current crisis. It also provides a way out: not by government fiat, but through the restoration of private property rights.
Join us next week with ALI-CLE for "Property Rights and Regulatory Takings at the Supreme Court." We've assembled legal experts including counsel in the Sheetz and DeVillier Supreme Court cases, and a dirt law legal scholar to discuss these important decisions and answer your questions (including "what's next?"):
The 2023-24 Supreme Court term has been another one of significance in the world of property rights. In particular, two unanimous cases directly addressed takings: Sheetz v. County of El Dorado, 601 U.S. __ (2024) (holding that the Fifth Amendment’s takings clause does not distinguish between legislative and administrative land-use permit conditions) and DeVillier v. Texas, 601 U.S. __ (2024) (holding that property owners adversely affected by a flood evacuation barrier should be permitted on remand to pursue their takings clause claims through the cause of action available under Texas law).To better understand the importance of these decisions as well as other property issues in the Court this year and what these cases mean for your practice, join our experts for this one-hour webcast. The faculty will also explore what these decisions mean for the future, what steps practitioners can take to incorporate these decisions into their practices, and what may be on the horizon.
More information here, including registration. Join us and bring your questions!
Mark your calendars and register now for the upcoming American Law Institute-CLE webinar "Property Rights and Regulatory Takings at the Supreme Court." The focus of this program is a summary and analysis (including "what's next?") of the two big property and eminent domain cases decided by the U.S. Supreme Court, Sheetz (exactions), and Devillier (just compensation remedy).
We've brought together counsel for the property owners in the cases, as well as a legal scholar to provide an academic view of the cases and issues.
The faculty:
- Larry Salzman - Vice President for Litigation, Policy & Research, Pacific Legal Foundation
- Robert McNamara - Deputy Litigation Director, Institute for Justice
- Professor Elizabeth Elia - University of New Mexico School of Law
Details:
- Date: July 16, 2024
- Time: 12n - 1pm Eastern Time
- Format: webinar, with audience questions
- CLE credits: ALI-CLE programs are approved for CLE credits in most jurisdictions
Come join us!
More details including registration information here.
Lawprof Lee Anne Fennell, whose work makes frequent appearances here (see here, here, and here for example), has been selected as this year's recipient of William and Mary Law School's Brigham-Kanner Property Rights Prize. See this announcement for details.
“Lee Fennell is one of the most thoughtful and thought-provoking scholars writing about property law in the United States today,” said James Y. Stern, Professor of Law at William & Mary Law School and Director of William & Mary’s Property Rights Project. “Her work examining property’s conceptual and social boundaries has almost literally helped to reshape thinking about property law, and the Brigham-Kanner Prize is a fitting tribute to her many contributions.”
Save the date: the Prize will be awarded as part of the 21st Brigham-Kanner Property Rights Conference, to be held at the law school in Williamsburg, Virginia, September 12-13, 2024. That's a bit earlier in the calendar than usual, so make your plans to join us now.
As we've said before, the B-K Conference is the best one-day property rights conference, which is designed to bring the practicing property bar together with the legal academy to talk about dirt law.
Join us!
There are some rewards for working late in the 808
Yesterday was the last day of instruction for the Spring 2024 semester at the University of Hawaii Law School. Did these last few months ever go by fast.
A big thank you to Professor Mark M. Murakami, with whom I guest-lectured at the Old School (both of us earned our JD's at the Law School) over the semester, on such topics as Euclid, vested rights and development agreements, and of course limitations on the police power such as takings.
Although our students have another couple of weeks to finish up with their final papers, we can say with certainty that the future of Hawaii land use law is in good hands. We had some very intriguing and educational discussions over the past few months.
Old School chalkboards remain in some of the classrooms.
(A plus.)
Speaking of Old School, the original signage from
the Law School's original location is up in the front office.
Flora abounds on the U. Hawaii campus, as you might expect.
Not a bad place to learn the law. Or to teach the law.
We say a fond "aloha" to our new colleagues
Be sure to join our Pacific Legal Foundation colleagues Brian Hodges and Larry Salzman, and Paul Beard (arguing counsel) and Chance Weldon (Texas Public Policy Foundation) tomorrow, Thursday, April 25, 2024, at 4pm ET for a free webinar on Sheetz v. El Dorado County, the Supreme Court's recent decision holding that all permit conditions are subject to the nexus and proportionality tests of Nollan and Dolan.
Here's the description:
Pacific Legal Foundation just won its 18th Supreme Court victory! Join us for a virtual discussion to learn more about the case, Sheetz v. County of El Dorado, and how it helps secure property rights (and lower housing costs) for everyone.Register here (free)!When George Sheetz wanted to build a modest manufactured home on the property he bought in El Dorado Country, California, the government told him he was going to have to pay a “traffic impact fee” of more than $23,000 in exchange for a building permit. Even worse, the fee would go toward projects that were not tied to the actual impact of George’s home.
George challenged the fee as an unconstitutional abuse of the permitting process. On April 12, the Supreme Court sided with George in a unanimous decision. At this post-victory discussion, attendees will hear from Paul Beard, the former PLF attorney now at Pierson Ferdinand who argued George’s case before the Court. You’ll also hear from PLF attorney Brian Hodges, who worked on George’s case, and Texas Public Policy Foundation’s Chance Weldon as they break down the Sheetz decision and its significance for property rights and housing costs.
Our thoughts on the decision here ("Sheetz pt. I - "Radical Agreement" At SCOTUS: "Your Money Or Your Rights" Isn't OK Just Because A Legislature Does It").
If you've been around us long enough, you know that we're big into the notion of "generational handoff" and doing what we can to make sure that students and others who are building their careers realize that dirt law and related topics are very good areas in which to find your way.
Well, here's the latest -- a free webinar from the American Planning Association's Planning and Law Division:
Second in a series of webinars aiming to answer student questions about career paths in the planning and law field, this webinar focuses on individuals working, or interested in working, in developing the built environment. Developers, as the main constructors of the built environment, must be familiar with urban conditions and the legal requirements that govern building on or redeveloping land. In-house counsel for development firms help their clients navigate through legal matters related to developing the built environment. Join us for a 90-minute discussion with four expert panelists, covering topics that include possible career paths in the private sphere, changes in the planning and law field over the years, and the experience and skills needed to enter the field, all with a focus on developers and in-house counsel. This webinar is for students, young professionals, and anyone who is interested in learning more about where a degree in planning, law, or both can take you in the private sphere.
Details:
Date: Wednesday, March 27, 2024
Time: 10:30 a.m. - 12:00 noon EDT
Cost: Free
Registration: https://www.planning.org/events/eventsingle/9286709/Speakers:
Kyle McClammer
General Counsel of The Garrett CompaniesRicqui Brager, AICP
Planner with the Regional Planning & Environmental Center (RPEC) of the U.S. Army Corps of Engineers, Fort Worth DistrictLeona Hammill
Leona Hammill joined NewQuest Properties in 2015 and has served as General Counsel since 2021Brodie Smith
Brodie Smith is a project manager for Thrive Home Builders in Denver, Colorado
Register and attend!
Texans: now is a good time to register for the 23d Annual Texas Eminent Domain Superconference, April 25-26, 2024, at the Austin Country Club in Austin.
We spoke at the Conference last year and in other editions, and can report that it is excellent. Check out the faculty and agenda, and then register and reserve your spot.
Have thoughts about where regulatory takings are (or should be) headed? Here's your chance to get in on the conversation, and to shape the future of the law. Our outfit, the Pacific Legal Foundation, in cooperation with the Antonin Scalia Law School's Journal of Law, Economics, and Policy, are calling for papers on "Imagining the Future of Regulatory Takings." There will be an in-person discussion of these papers at the Law School in October 2024.
Here's the full description:
A century ago, Oliver Wendell Holmes, speaking for the Supreme Court, assured us that “[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” In the ensuing one hundred years, courts have struggled to draw the line defining “too far.” Some still wonder whether such a line should even exist. As Justice Clarence Thomas recently said, “If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs.”To date, many jurists and scholars have argued that the “too far” line is anything but clear. The regulatory takings doctrine is a hodgepodge of balancing and categorical tests alongside a scattered throng of exceptions, with little guidance on which tests or exceptions apply when, much less how to apply them in a principled and consistent manner. There are the categorical tests of Lucas (“total” takings) and Loretto (“physical” takings) and the amorphous balancing tests like the Penn Central ad hoc regime and the threshold “relevant parcel” test. Then there are vexing and unanswered questions about whether some restrictions on property are simply exempted from a takings analysis: When is a property restriction a “background principle” baked into the meaning of property itself as opposed to a restraint on a recognized property right? When, if ever, does a valid exercise of the police power operate outside of takings constraints? And, to top it all off, we still aren’t settled on how to define “property.” Pacific Legal Foundation seeks papers that offer fresh ideas on how to make “too far” more just, more concrete, and more principled. We welcome proposals that look at this problem from legal, economic, political, historical, and related angles, including empirical and nonempirical approaches.
Proposals are due by April 15, 2024, and for accepted works there is a $2500 honorarium and an opportunity to publish your work in the Journal. Certain travel expenses to the Law School also will be covered.
Download the full brochure for all the details, including timeline, and a list of possible topics.
Please consider submitting, and joining us in this fascinating enterprise.
Call for Papers: "Too Far: Imagining the Future of Regulatory Takings"
Save the date (and time): next Wednesday, March 6, 2024, at 5:00 p.m., Eastern Time, as we rejoin our friends and colleagues Patrick McAllister and Beth Smith, as they co-host the Eminent Domain and Right of Way Club.
We'll be joining them to try and answer that question, "What is Inverse Condemnation?" As Patrick and Beth note, "[w]e will find out what it is, how it works and when does it happen....and probably a lot more." Sounds intriguing.
For those of you who may not have participated in one of these sessions before, you may be wondering "what is this 'Clubhouse' thing?" Here's the description, straight from their site:
The Eminent Domain & Right of Way Club is on the Clubhouse Drop in audio app. This Club is geared toward right of way professionals & anyone interested in the acquisition of land rights for infrastructure projects.
In short, it is a smartphone-only app, that connects participants to an audio-only chat room, where you informally hang out and listen to Pat and Beth speak with a guest, followed by a moderated open-mic (again, audio) chat room. Having participated before, we can say it is a very informal, friendly, and collegial venue to learn and discuss things. No pressure, no big whoop. It's just talk.
Come give it a try!
When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we're always ready to go. You know that. But this year's version -- the 41st -- was buzzing like no other in recent memory.
Maybe it was the New Orleans venue with its atmo, food, and music for our after-class activities, or even the timing (the second-to-last week on the Mardi Gras parade season, and our conference hotel was right on the routes). It might have been the nice weather (oh, it rained buckets one evening, but there wasn't an ice storm like we experienced in Austin in 2023). Or maybe it was the capacity crowd, and new topics and speakers on the agenda. Or maybe it was just the prospect of seeing our friends and colleagues again after a year.
Here's a photo essay of some of the Conference highlights.
And if you missed out, the webcast was recorded and is available for viewing. Or, better yet, hold on your calendar January 30 through February 1, 2025 for the 42d Conference, to be held at the Westin Bayside San Diego.
Excitement this way...
The view from the podium.
Say "hello" to our opening plenary session in wide-angle.
Prepping the space.
The finished stage that Conference attendees
see isn't how the room starts off.
It takes a lot of work by the ALI-CLE staff
to get the place camera-ready.
The live webcasting of the sessions also takes a lot of
set-up and a ton of equipment. This is just some of it.
Here's more.
The badges were arranged on the table with care...
...in trust that our faculty and registrants would soon be there.
No conference would be complete without swag.
Here is but a sampling.
As always, a huge thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.
The Conference site was right on the routes of several parades.
It was difficult to keep focusing on severance damages and larger parcel
when the music and excitement was just outside.
But we tried.
The opening plenary session -- on the U.S. Supreme Court's
big takings case -- got us off to a solid start.
Thanks to Christina Martin and Steve Silva for speaking
on Tyler v Hennepin County.
The view from the podium as Amy Boulris speaks about the most
significant eminent domain decisions of 2023.
The speakers are a mix of practicing lawyers, judges, other eminent domain
professionals, and legal academics. Here, two property scholars --
Timothy Harris and Jessica Asbridge --
discuss how state property law and state courts
can drive the constitutional issues.
Kinnon Williams, Esq. and Christina Thoreson, SR-WA, MAI, CRE
present on "Valuation of Wasting Assets."
Lawprof Emilio Longoria and attorney Tony Francois
on "What Condemnation Lawyers Need to Understand
About the Clean Water Act After Sackett"
(hint: it goes to highest and best use).
Matthew Ackerman, Marianna Baggett, and Kenneth Haywood
on "The Pitfalls of Objectively Measured Just Compensation:
When Market Value Isn't Enough."
It was not all work and no play.
Again, a big thanks to our generous sponsors.
Our speakers take questions, of course.
We solicit them the old-fashioned way (thanks, James Masterman).
William and Mary Law School Professor
Emerita Lynda Butler (and her former student, North Carolina's
Jeremy Hopkins" discuss property rights in an age of coastal retreat.
Luis Gallardo-Rivera, Dana Berliner, and (off-camera)
Sophia Holley on "Proving and Defending Pretext,
Public Use, and Necessity."
James Masterman and Martye Kendrick on "Preparing Your Witness
to Overcome Obstacles to Highest and Best Use."
Jeff McCoy, Robert McNamara, and Kristen Renfro on
"Getting to Federal Court and Staying There:
Navigating Procedural Mazes in Federal Takings Claims."
Sean Metherell and Nathan Farris zero in on
"How to Win a Future Highest and Best Use Claim: Proving Reasonable
Probability of Rezoning and Other Issues."
Michael Berger is Watching You:
SCOTUS Property Rights Maven Michael Berger zooms in with his
annual "Regulatory Takings Update."
We always hold a spot for Jim Burling on Saturday.
Why? Because his tours-de-force always are interesting
and put people in seats, even on a Saturday morning.
More Big Michael.
Here, sharing his memories of Professor Gideon Kanner.
See you in San Diego!
January 30 - February 1, 2025
Westin San Diego Bayside
Join us at 12:30pm ET today, Tuesday, February 13, 2024, for the ABA's Section of Real Property, Trust and Estates' monthly Professor's Corner, where we will join exactions experts Prof Tim Mulvaney, Andrew Gowder, and Prof Elizabeth Elia to discuss the Supreme Court arguments, the issues in the case, and what may be down the road.
Here's the description:
Can legislative action constitute an exaction subject to the Nollan/Dolan/Koontz test? In his concurrence to the Supreme Court's 2016 denial of certiorari in California BIA v. City of San Jose, Justice Thomas made clear that he was eager to examine this issue. Justice Thomas's wait is over; the Supreme Court granted certiorari to address this very question during the 2024 session in the case Sheetz v. Co. of El Dorado. Our expert panel will discuss all sides of this extremely interesting case and its implication for takings jurisprudence.
Free, but you gotta register. Join us!
Our annual "proof of life" photo -
Yes, this is New Orleans,
but nearly 300 of us are in the room
to talk eminent domain and property rights shop
A fantastic turnout at the ALI-CLE Eminent Domain & Land Valuation Litigation Conference.
Some numbers:
- Eleven. The number of attendees from a single firm, Frederikson & Byron. We think that is some kind of record. Impressive!
- Nine. The number of law students who joined us of their own initiative to learn about eminent domain and takings, and to network.
- Five. The number of members of the legal academy who are on the faculty. Our programs have a good mix of theory and practice.
- Three. Attendees who are sporting bow ties.
- Forty-one. The number of these conferences we've had so far. And going strong.
Wish you were here.
As the title of this post notes, we are underway with the 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, in New Orleans.But the magic doesn't just happen on its own. It takes a lot of hard set-up work by the ALI-CLE staff to make #EminentDomain2024 a great event. Here's some of what goes on beforehand.
The "before" view of the Big Room
In the rear with the (AV - webcast) gear
Getting closer...
We're not all work...just outside the conference room
Starting in January, we'll be helping our friend and former law partner Mark M. Murakami with the venerated and oh-so-important Land Use course (Law 580) at the University of Hawaii's Law School.
We're 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 sleeves -- 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.
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 DealThe 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.
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 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!
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.
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)
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!
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!
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 [email protected] or 303-806-5155. Applications are due by October 3, 2023.
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.
He also serves as the Joseph T. Waldo Visiting Chair in Property Rights Law at the William & Mary Law School in Williamsburg, Virginia.
email | bio | publications
The Law of Eminent Domain - A Fifty State Survey (ABA 2011)
Eminent Domain - A Handbook of Condemnation Law (ABA 2011)
At the Cutting Edge 2009: Land Use Law from The Urban Lawyer (D. Merriam, ed. 2010)
Recent Developments in Public Use and Pretext in Eminent Domain, 41 Urban Lawyer 563 (Oct. 2009)
The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases (Dec. 2008)
Battle For Brooklyn (Rumur Films 2011)
The Complete Guide to Zoning by Dwight H. Merriam (2005)
The Kauai Property Tax Charter Amendment Case (KKCR FM 92.7)
Legal and Other Issues In Honolulu's Rail Project (Think Tech Hawaii, KIPO FM 89.3)
Governor's Announcement of Judge Sabrina McKenna as Associate Justice, HAWSCT (1/25/2011)
Must A Property Owner Seek To Change The Law To Ripen A Federal Takings Claim? (HAWICA, 12/8/2010)
Justice Recktenwald Senate Hearing (8/25/2010)
Judge Leonard Senate Hearing (8/3/2010)
New Jersey's "Bizarre Condemnation" - Klumpp v. Borough of Avalon (NJ Supreme Court, 3/22/2010)
Columbia Eminent Domain Oral Arguments (NY Court of Appeals 6/1/2010)
Turtle Bay/Kuilima Supplemental EIS case (HAWSCT, 12/17/2009)
Atlantic Yards eminent domain abuse (NY Court of Appeals, 10/14/2009)
Ala Loop Homeowners: are state zoning laws "environmental" statutes (HAWSCT, 10/14/2009)
This blog is not sponsored by the author's firm, and the views expressed by the author are just that, his views; they are not the views of his clients, his firm or its clients, or anyone but the author.
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