2014

Today is Good Friday, an official state holiday in Hawaii, so we’re reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that it doesn’t really. It’s just coincidence that the “spring holiday” occurs on the same day, and it’s plausible that the State had a secular purpose when it officially sanctified “a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary.” 

Or so says the Ninth Circuit.

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Continue Reading Don’t Forget To Celebrate The Secular Good Friday Holiday Today, By Going Shopping Or Something

As many of you may already know, we’ve been publishing this blog for quite a while. What you may not know, except anecdotally, is that several of our law firm colleagues also are active bloggers in their respective fields of interest. We’ve mentioned them a few times, but you may have missed it.

So now, thanks to Hawaii Business magazine, there’s a neat little story on what we do, “Hawaii-Focused Legal Blogs” by Jon Letman, in the April 2014 edition. And for those of you who do not subscribe, they’ve kindly posted the article online here.

In addition to our humble blog, it notes that Tred Eyerly publishes Insurancelawhawaii.com (insurance coverage issues, locally and nationally), Anna Oshiro focuses on Hawaiiconstructionlaw.com (construction litigation, arbitration, bonding, and licensing issues), while Mark M. Murakami does Hawaiioceanlaw.com (maritime, Jones Act, navigation, and other interesting topics like “do captains have a duty…

Continue Reading Hawaii-Focused Legal Blogs

Each year, the William and Mary Law School’s Property Rights Project awards the Brigham-Kanner Property Rights Prize to a deserving person “whose work affirms that property rights are fundamental to protecting and preserving individual liberty.” This list of past recipients is an All-Star roster of property scholars and jurists, including lawprofs Frank Michelman, Richard Epstein, James Ely, Carol Rose, Thomas Merrill, and Supreme Court Justice Sandra Day O’Connor. 

The Project just announced that Michael Berger has been selected as the 2014 recipient of the Prize. As noted, Mike “is the first practicing lawyer to receive the prize and is widely considered to be among the best takings lawyers in the nation.” The Prize will be presented at the 11th Annual Brigham-Kanner Property Rights Conference, on October 30-31, 2014 at the Law School in Williamsburg, Virginia. 

Here’s the full story:

Berger to Receive 2014 Brigham-Kanner Property Rights Prize

…
Continue Reading Mike Berger To Receive 2014 Brigham-Kanner Property Rights Prize From William & Mary Law School

The North Carolina Supreme Court has issued its opinion in Beroth Oil Co. v. North Carolina Dep’t of Transportation, No. 390PA11-2 (Apr. 11, 2014). That’s the case which we’ve been following about the class-action worthiness of of a case in which the N.C. DOT effectively blighted a huge swath of land by identifying it as a future highway, and then doing mostly nothing to acquire it, even though by virtue of a parcel’s identification on the map, the owner was prevented from obtaining building permits, or undertaking other development of the land.

The Supreme Court briefs are posted here, and we also recently posted NCDOT’s summary of the effect of a “protected corridor,” which is the DOT’s way under North Carolina’s Map Act of keeping property that it wants for future highways from being developed in the interim (we thought it should be called a “taking”). More background on the case here…

Continue Reading N.C.: “Map Act” Inverse Cases Must Be Prosecuted Individually, Not As A Class

Here’s the latest from the Federal Circuit, a decision involving regulatory takings, the big auto bailout, and the nature of property rights. A&D Auto Sales, Inc. v. United States, Nos. 13-5019, 13-1520 (Apr. 7, 2014)

In the TARP and the related bankruptcy cases, the federal government bailed out the two big American auto manufacturers, General Motors and Chrysler. Part of the $55 billion assistance deal required GM and Chrysler to terminate the franchises of many dealerships. Not surprisingly, those dealerships didn’t care for the idea that their businesses were not “too big to fail,” and objected in the Court of Federal Claims to the idea that they should be sacrificed to the greater good with a takings claim against the federal government. 

Although the automakers were already reducing their dealer ranks over time and GM’s initial viability plan had included additional dealer terminations, the government determined that…

Continue Reading Fed Cir: Big Auto Bailout Could Be A Taking

Check out this language from a recent decision by the U.S. District Court for the District of D.C.:

The CityCenterDC development may be a laudable and exciting public-private partnership, and it may entail a more comprehensive level of urban planning and cooperation than the ordinary project, but the exercise will result in the creation of an enclave of private facilities. What is being constructed will be no more for the use and benefit of the population of the District than any other condominium or hotel: members of the general public will be welcome to enjoy the surrounding sidewalks, and possibly the lobby, and they can spend their dollars in the nearby shops and restaurants, but at the end of the day, they will not be permitted to go upstairs. CityCenterDC is not a public work of the District of Columbia, and the ARB’s decision to the contrary cannot be sustained.…

Continue Reading “Incidental Public Benefits – Such As Employment Opportunities, Increased Tax Revenue” Does Not Make A Project “Public”

For those of you who are members of the ABA, here’s a tangible member benefit.

On Wednesday, April 9, 2014, tune in for a free webinar, “Rails-to-Trails and the Impact of Brandt Revocable Trust v. United States.” The program is sponsored by the Real Property, Trusts & Estates Legal Education and Uniform Laws Group. 

Here are the details:

ABA-RPTE Professors’ Corner – A FREE monthly webinar featuring a panel of law professors, addressing topics of interest to practitioners of real estate and trusts/estates

This is a One Hour WEBINAR

Wednesday, April 9, 2014
12:30 pm Eastern / 11:30 am Central / 10:30 am Mountain / 9:30 am Pacific

Register online here.  

March’s Program: “Rails-to-Trails and the Impact of Brandt Revocable Trust v. United States”

Professors’ Corner is a monthly webinar (on the second Wednesday of each month) featuring a panel of law professors, discussing recent cases or issues of interest to real estate or trust and estate practitioners and scholars.

Speakers:

  • Professor Danaya C. Wright, University of Florida Levin College of Law
  • Professor Michael Allan Wolf, University of Florida Levin College of Law

On March 10, 2014, the U.S. Supreme Court decided Brandt Revocable Trust v. U.S., involving the interpretation of the General Railroad Right-of-Way Act of 1875. The case involved a railroad right of way obtained in 1908, crossing land conveyed by the U.S. to the Brandt family in a 1976 land patent that did not specify what would happen if the railroad later relinquished its right of way (which occurred some years later). In the case, the U.S. sought to quiet title to the abandoned right of way, including the portion that crossed the land conveyed by the Brandt patent. Reversing the Tenth Circuit, which had affirmed a grant of summary judgment for the U.S., the Supreme Court held that the right of way was only an easement and was extinguished when the railroad abandoned it. The decision has already created some substantial consternation regarding its potential impact on the Rails-to-Trails movement and recreational trail development along abandoned rail corridors.

We’re registered, and you should too.
Continue Reading Mark Your Calendars: “Rails-to-Trails and the Impact of Brandt Revocable Trust v. United States” (4/9/2014) – Free To ABA Members

Check out this Power Point presentation, sent our way by a North Carolina colleague. It’s an explanation by the NC Department of Transportation of a “protected corridor,” a “[t]emporary restriction on development placed upon properties located within a proposed highway alignment.”

And what, pray tell, is the purpose of this protected corridor? To allow the NCDOT breathing room to come up with an orderly plan of development or something similar that is often used to justify moratoria? No, to “[h]elp[] insure availability of proposed locations for large-scale projects…”

In other words, to stop development in anticipation of NCDOT eventually — maybe, someday — condemning the land for a highway.

You see, those darn developers, they keep building subdivisions in the path of our future beltways (the nerve), so we have this plan to protect the land so we might eventually take it at reduced acquisition and relocation…

Continue Reading What Is A Protected Corridor? A Taking, Or At Least It Should Be

We’re not sure whom to root for in this one, the crony capitalist movie moguls who’ve threatened to pull up stakes if the legislature doesn’t give them additional tax credits continue to film the House of Cards series in Maryland, or the members of the state House of Representatives who responded by threatening to exercise eminent domain to condemn the production’s property if it does so. 

You know what? We hope you both lose. Continue Reading A Plague O’ Both Your Houses Of Cards

Update: there’s been an en banc petition filed.

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An interesting discussion is going on about so-called “judicial fact finding” in the legal blogs, triggered by the acknowledgement by Seventh Circuit Judge Posner that he did an “experiment with a novel approach” in a recent case:

The issue in the case was whether the time poultry workers spent changing into and out of their sanitary gear for their lunch breaks must be compensated. The old “donning and doffing” issue from labor law. [Takings sidebar: federal judges constantly tell us that they want no part of land use and takings cases — despite their plain textual basis in the Fifth…

Continue Reading On “Judicial Factfinding”