2018

1205181530f_HDR

With the first snow of the season beginning to fall in Williamsburg, today was the final day of classes at the William and Mary Law School. Which means that my time serving as the inaugural Joseph T. Waldo Visiting Chair in Property Rights Law is beginning to wrap up. There’s still the reading period, exams, and grading, but today was the last day we met as a class.

What a great law school, and wonderful students. I learned way more than I conveyed. A welcoming administration, faculty and staff, too. This was the best experience of my professional life.

A huge thank you to law school dean Davison Douglas, and Professors Lynda Butler and James Stern, for guiding and supporting me, and making me feel like I belonged. And to my students, who challenged me. And, of course to Joe Waldo, who made it all possible.Continue Reading End Of The Term For Law 608: Eminent Domain And Property Rights

The U.S. Court of Appeals for the Third Circuit recently heard oral arguments (stream above, or download the mp3 here), in a case involving an issue we briefed recently in another circuit: whether state or federal law governs the determination of Just Compensation in federal court Natural Gas Act takings.

Now, you might automatically assume that because the case is in federal court under federal law, that federal standards for Just Compensation (and not the law of the state in which the property is located) provides the rule of decision. But it is not that simple. 

Short answer to the question posed by our title: no, the state’s law of just compensation does not govern. But the state’s law of property does govern.

Thus, we think that which law governs compensation in federal condemnations is determined by the law of the state. After all, the particular “sticks” in…

Continue Reading In Federal Pipeline Takings, Does The State’s Law Of Just Compensation Govern?

Here’s the third (and final) supplemental letter brief in Knick v. Township of Scott, No. 17-647 (which is set for reargument before the Supreme Court next month).

Of course, you should not be surprised that the Township disagrees with both Ms. Knick’s arguments, as well as the SG’s supplemental brief, and argues instead that all’s well in Williamson County, and that the Court should not disturb it one bit. 

Indeed, if there’s a fault here, it lies with Congress (according to the Township), which could have provided for federal jurisdiction to consider “questions” of federal law, not merely “violations.”

Finally, it is worth recalling that petitioner’s only quarrel with Williamson County is that it recognizes limits on the subject-matter jurisdiction of lower federal courts to hear claims for just compensation. But those limits are statutory, not constitutional, and Congress has discretion to lift them. See…

Continue Reading Township’s Supplemental Brief In Knick: This Is A Statutory, Not Constitutional, Issue

As we wrote in this post, the federal government”s position in Knick v. Township of Scott, No. 17-647, which is set for reargument next month, has us a bit perplexed.

On one hand, the SG’s bottom line is good: property owners can bring their takings claims against local governments in federal as well as state courts. On the other, however, the SG’s supplemental letter brief disagrees with Ms. Knick’s supplemental brief, and argues that no, a “municipality does not violate the Takings Clause when it adopts a regulatory measure that may constitute a taking of property for a public use, even if it denies that such a taking has occurred[.]” SG letter at 3. The fact that state law provides a means for the owner to “still establish the existence of a taking and obtain just compensation through a reasonable, certain, and adequate state inverse-condemnation lawsuit,” means …

Continue Reading SG’s Supplemental Knick Brief: No Fifth Amendment Violation If Govt Does Not Admit To A Taking, But Property Owners Should Still Be Able To Come To Federal Court Anyway To “Vindicate” The Right To Compensation

Here’s the supplemental letter brief, filed today on behalf of Rose Mary Knick, as requested by the Supreme Court. 

Two more — by the Township and by the SG — to be filed today as well. We shall post those as they become available. 

Letter Brief of Rose Mary Knick, Knick v. Township of Scott, No. 17-647 (Nov. 30, 2018) 

Continue Reading Supplemental Knick Brief: Time Of Invasion Is When Property Is “Taken”

Earlier this week, we spoke to Howard Mansfield, author of the recently-published book “The Habit of Turning the World Upside Down – Our Belief in Property and the Cost of That Belief.”

His book is about property, property rights, and how these ideas are processed by the American psyche. But instead of the usual scholarly (and very often dry) treatment of these topics that we might expect – especially those of us in the legal and academic world – Mr. Mansfield takes a slightly different approach. He relates stories of how property fits in with the culture – the different and often competing narratives that are attached to the notion of property – and the often-contradictory way in which we in the United States view the idea of ownership and possession.

Listen to our interview above (Sound Cloud stream), or if that does not work for you…

Continue Reading Audio: Our Interview With Author Howard Mansfield – “The Habit of Turning The World Upside Down – Our Belief in Property and the Cost of That Belief”

Here’s the Petition for Review we’ve been waiting to drop since last week’s ruling by a California Court of Appeal declining to review the California PUC’s decision to turn down the electric company’s request for a rate increase to cover the compensation and damages that it must pay as the result of a southern California wildfire. 

Recall that under California law, a utility company with the power of eminent domain (such as San Diego Gas & Electric) can be liable under an inverse condemnation theory if it can be shown that “any actual physical injury to real property” was “proximately caused by [a public] improvement as deliberately designed and constructed” by the utilty, whether or not foreseeable.

Two California intermediate appellate courts have applied that general rule to wildfires, even though that state’s Supreme Court has not.

The petition argues that the two court of appeal opinions turn on the…

Continue Reading Electric Company: We Can’t Be Liable For Inverse Condemnation For Cal Wildfires Unless We Can “Unilaterally Recoup Costs From The Benefited Public Through Taxation Or Rate Increases”

A unanimous opinion from the Supreme Court, which can only mean one thing: a narrowly-drawn opinion that doesn’t resolve much.

But we’re grateful anyway, because the opinion is one that appreciates the plight of property owners whose land is subject to being designated as “critical habitat” under the Endangered Species Act.

Intervenor Center for Biological Diversity raises an additional question in its brief, arguing that Weyerhaeuser lacks standing to challenge the critical-habitat designation because it has not suffered an injury in fact. We agree with the lower courts that the decrease in the market value of Weyerhaeuser’s land as a result of the designation is a sufficiently concrete injury for Article III purposes. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386 (1926) (holding that a zoning ordinance that “greatly . . . reduce[d] the value of appellee’s lands and destroy[ed] their marketability for industrial, commercial and…

Continue Reading Supremes: “According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat’” … Whatever That Is

Following the announcement that GM will be closing its Detroit-area Hamtramck assembly plant (originally a Cadillac plant), comes the reminder that it wasn’t supposed to be that way. This was the area, after all, condemned for “economic development” in the infamous Poletown case. 

But as the Detroit Free Press reported in “GM’s Hamtramck plant closing reopens old controversy in Detroit,” “[m]aybe the naysayers were right all along.” Yes, the Michigan Supreme Court righted the ship later, in County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), but that came too late to save the Poletown property owners.

For some commentary from someone who was there, check out Professor Gideon Kanner’s most recent post, “Bye, bye General Motors Poletown Plant,” where he writes, “This caper cost the taxpayers some $200 million and it spared GM having to pay its full tax share. It was supposed…

Continue Reading Prof. Gideon Kanner: “Bye, bye General Motors Poletown Plant”