May 2013

A lot of interesting law review articles published lately, and here’s the latest: William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738 (2013). As the title suggests, the author argues that for 75 years, the original view was that the federal government lacked eminent domain power, because it was not expressly granted and it “was too great of a power to be granted only by implication.” While this view has not prevailed, he argues this history should be reexamined. Here’s the summary:

It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the District of Columbia and the territories—but not within states.  Politicians and judges…

Continue Reading One More Law Review Article: “Rethinking the Federal Eminent Domain Power”

Here’s one that might make you feel better, particularly if you end up drawing the short straw in litigation: in The Upside of Losing, 113 Colum. L. Rev. 817 (2013), Professor Ben Depoorter writes about how winning may not be the “only thing” in public interest litigation.

Of particular interest to the readers of this blog is the section that begins on page 831, which focuses on the Kelo case and its aftermath. There’s one where the litigant didn’t win in the Supreme Court, but the issue jumped to the forefront of the public consciousness:

What first resembled a resounding loss eventually became a victory of a different sort for the opposition to economic development takings. The history of Kelo illustrates that, as much as a plaintiff might hope to win a favorable verdict, substantial benefits also obtain in defeat. Fundamentally, Kelo and its aftermath suggest that certain disputes…

Continue Reading New Law Review Article, “The Upside of Losing,” Focuses On Kelo

Here is the handout (2 pages) from today’s CLE program on Amicus Briefing, sponsored by the Hawaii State Bar Association’s Appellate Law Section.

Links to the briefs mentioned are also posted here.

Update: here’s the audio of my remarks.

Amicus Briefing – Hawaii State Bar Association, Appellate Law Section – CLE 5-20-2013


Continue Reading Materials And Links From Today’s HSBA Appellate Section CLE On Amicus Briefing

Much of the interest in eminent domain law since Kelo v. New London understandably has been on the Public Use Clause, but as condemnation lawyers know, a supermajority of the issues in these cases involve the other part of the Takings Clause, the question of just compensation.

The shorthand usually employed is that an owner whose property is taken is entitled to “fair market value,” but that is only part of the equation, since, as the Supreme Court has held, the Just Compensation Clause requires the “full and perfect equivalent” be provided when an owner of forced to give up property for the public good. See Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893).

A newly-published law review article addresses some of those issues, and is worth reading.  Brian Angelo Lee, Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013).

Continue Reading New Law Review Article On Just Compensation: Property Owners Getting Too Much

To supplement the HSBA session on amicus briefing, here are some samples:

Hawaii courts

U.S. Supreme Court

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Continue Reading Amicus Brief Samples

HSBAappellateOn Monday, May 20, 2013, I’ll be speaking at the Hawaii State Bar Association’s Appellate Law Section’s monthly meeting, on “Amicus Briefing.”

Sorry for the short notice, but I am a last-minute substitution since one of the original panelists, retired Hawaii Supreme Court Justice Steven Levinson, is under the weather and cannot attend. The other panelist is Daniel Gluck, a Senior Staff Attorney with ACLU Hawaii. Should be a fun and interesting discussion.

In my portion of the program, I’ll be discussing the how’s and why’s, the do’s and don’t’s of amicus participation in state and federal courts, with an emphasis on U.S. and Hawaii Supreme Court practice. We’ll also be entertaining questions from the audience.

Because this is a late-hour pinch hit and I am on the road, I’ll be appearing by video conference. Should make it even more interesting. For those of you who cannot attend in-person…

Continue Reading HSBA Appellate Section: Amicus Briefing

volcanoThis photo and accompanying story (“Volcano officials concerned about risky activity at Kilauea ocean entry“) reminded us of an article we did a few years ago about issues of liability in these cases, the “compensation culture,” and a famous tort decision by the UK’s House of Lords. 

Our article, “Common Sense and Common Law – Who Does the Balancing of Social Utility?,” framed the issues in light of the situation at Hawaii Volcanoes National Park where visitors had (and apparently still have) the ability to simply walk out among the flowing lava:

Hawaii Volcanoes National Park is located on the island of Hawaii, and true to its name, its central attraction is one of the world’s most spectacularly active volcanoes, Kilauea. At the end of Chain of Craters Road, visitors may walk out past where it was cut off by a flow to witness a…

Continue Reading Is Anyone On The Hook If a Volcano Gawker Ends Up In Trouble?

Here’s the BIO recently filed by the United States in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013). This brief responds to the cert petition which seeks Supreme Court review of Estate of Hage v. United States, 687 F.3d 1281 (Fed. Cir. 2012).

In that case, the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. The issue in the case is whether it is a taking for the government to cut off physical access to a property owner’s vested right to use water. The Court of Federal Claims had awarded $4.2 million in just compensation for the taking of Hage’s water rights.

The BIO reformulates…

Continue Reading USA’s BIO In Western Water Rights Takings Case

Watch Eminent Domain Case: How Can You Take My House? on PBS. See more from Constitution USA with Peter Sagal.

Here’s a video snippet focusing on eminent domain and the Kelo decision, from PBS’s ongoing series on the U.S. Constitution. It’s a somewhat generic view of the issue complete with silly sound effects and graphics, but it does touch on the concept of property rights, and there’s a tour of the former Fort Trumbull neighborhood in New London, currently an overgrown field.

The money quote is from former property owner Michael Cristofaro: “How could those justices in black robes steal our property rights from us? I feel like the Constitution failed me.”

Professor Gideon Kanner adds his thoughts on the video here. Continue Reading PBS’s Constitution USA On Eminent Domain

Tomrrow morning (Thursday, May 16, 2013), at 9:00 a.m., the Hawaii Supreme Court will hear oral arguments in Aloha Tower Dev. Corp. v. State of Hawaii, No. SCWC-30484, in which the court is reviewing the opinion of the Intermediate Court of Appeals which held that a party was not entitled to recover attorneys fees under the “private attorney general” doctrine because the public policy vindicated by its arguments were not strong, and because the City and County of Honolulu joined the case on the same side. We summarized the ICA’s opinion here.

The Supreme Court accepted cert on May 1, 2013, just over two weeks ago. Here are the cert-stage briefs (hat tip to colleague Rebecca Copeland):

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Continue Reading HAWSCT Oral Argument Preview: More On The “Private Attorney General” Fee-Shifting Doctrine