2021

Screenshot 2021-11-17 at 13-11-12 The Realities of Takings Litigation

Another law review article worth reading. This one from lawprof Dave Owen, is about “The Realities of Takings Litigation” (forthcoming BYU Law Review). That title certainly got our attention – any time a law journal article is about ‘reality’ and takings, and includes empirical research, we’re going to read it.

Here’s the abstract:

This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field.

That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an…

Continue Reading New(ish) Article: “The Realities of Takings Litigation” (Dave Owen)

Screenshot 2021-11-15 at 11-33-55 Takings Localism

Be sure to check out the latest article from takings scholars and Nestor Davidson and Tim Mulvaney, “Takings Localism,” 121 Colum. L. Rev. 215 (2021) (pdf here).

Here’s the abstract:

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local one.

Despite the centrality of local democracy to takings, state legislatures have restricted local authority on property issues in a range of ways. States have expanded compensatory liability for owners facing local regulations, imposed procedural constraints on local authority, and limited the exercise of foundational local powers. Seen in its entirety, this state intervention—like contemporary “new preemption”—is acontextual and unduly rigid, cutting at the heart of the devolutionary principles underlying takings jurisprudence.

This unbalanced state role requires a recalibration of decisionmaking power between state and local government to foster intersystemic dialogue and reflection. States certainly play a crucial role in defining and protecting property interests, but they must justify choices to constrain local discretion when state and local values conflict. The extant state statutory regime dispenses with this justificatory task via a formalistic disregard for the contextualization that legitimates vertical allocations of authority. A corrective to decades of imbalance in state ordering of local authority would thus properly recognize “takings localism.”

Free up local governments, or tie their hands…which is better? After reading this, you decide.
Continue Reading New Article: “Takings Localism” (Tim Mulvaney & Nestor Davidson)

It takes a bit of work to work your way through the Arizona statute being challenged in the U.S. Court of Appeals’ opinion in CDK Globall LLC v. Brnovich, No. 20-16469 (Oct. 25, 2021). But we recommend you read the opinion and do the work nonetheless, because it tells us something about the way the Ninth Circuit views the right to exclude.

The statute, known as the “Dealer Law,” deals with the way car dealers treat the data they obtain from their customers. Data like the cars themselves, parts, services and the like, but also things like credit history and social security numbers. Like pretty much every other thing these days, that data is managed by proprietary software. Not surprisingly, there are specialized vendors who license the industry-specific, proprietary software. According to the opinion, those vendors in the past allowed dealers to extract the data from the proprietary platform…

Continue Reading CA9: Once You Open The Door For One, You’ve Opened It For Everyone

“This year, the Northwestern University Law Review presents a symposium on property and inequality, which brings together scholars of legal history, property, tax, land use, fair housing, environmental law, natural resources and water rights, family law, education, and constitutional law, to highlight new scholarship at the intersection of these fields.”

More information, as well as registration to attend remotely, here.

Nulr_symposium_posterContinue Reading Still Time To Sign Up For Northwestern L. Rev.’s Symposium: “Reimagining Property Rights in the Era of Inequality” (Friday, Nov. 12, 2021)

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Here’s one that has been on our radar for a while (we filed our amicus brief nearly two years ago). So long ago that it was the final case that remained on our docket from our time in private practice. It’s not even about takings (but we’re posting it anyway as one of those “barista’s privilege” things). This one involves the constitutional requirements for the Hawaii Legislature to adopt a new statute.

The Hawaii Constitution requires that before becoming law, a bill must pass three readings in each house on separate days. Seems pretty straightforward, no? Draft up a bill, read it in the House and in the Senate three times each, and make sure those readings are not on the same day. The reasons for the requirement seem pretty obvious. As our brief put it, a well-functioning republic presumes that those tasked with vigilance — the public …

Continue Reading Hawaii Supreme Court Guts-And-Replaces The Legislature’s “Gut-And-Replace” Switcheroo

This is one post I wish I didn’t have to write. I recently learned that long-time colleague, friend, and kindred spirit Jim Mee passed away in September.

Jim was one of the good guys, a true giant in the Hawaii land use and eminent domain Bar. His accolades are many, his list of professional accomplishments long. I considered him a mentor and a guiding force in the local scene — a colleague who never didn’t have the time to chat with you about difficult issues, even if he was not involved in the case. He’s the lawyer I’d call to trumpet my victories, or to commiserate with if a case didn’t go my way. I knew he’d understand: we were, most often, on the same wavelength.
When we were not, I counted on him to be that objective, outside “you sure you want to argue that?” voice. A lawyer…

Continue Reading Aloha, Jim Mee

There’s not a lot of direct takings love in the U.S. Court of Appeals for the Second Circuit’s opinion in Melendez v. City of New York, No. 20-4238 (Oct. 28, 2021), but there’s enough there that you might want to read it anyway.

Because the opinion resurrected the plaintiffs’ Contracts Clause claim. You heard that right, their Contracts Clause claim. The plaintiffs asserted that New York City’s ordinance that prohibiting “threatening” a tenant due to their Co-19 status violated free speech and due process rights, and the city’s ordinance voiding personal guarantees for commercial leases impaired their lease contracts. The district court dismissed the case for failure to state a claim, concluding that the guaranty ordinance served a legitimate public purpose and did not favor any class.

The Second Circuit affirmed dismissal of the free speech and due process claims, but also concluded that the complaint alleged a plausible…

Continue Reading CA2: NYC’s Eviction Moratorium May Have A Contracts Clause Problem

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We thought we posted the U.S. Court of Appeals for the Sixth Circuit’s recent opinion in a takings case,  Golf Village North, LLC v. City of Powell, No. 20-4177 (Sep. 23, 2021), earlier, but a search of the blog reveals we did not, so here we go.

The City built a new 23-acre public park (highlighted in green on the map above), which had been dedicated by the developer, Golf Village North, as a condition of subdivision. A road that led to the one of the park entrances was to be made a public road (blue highlighted). The City’s plans noted that approval of the park construction and opening the blue road to the public were contingent on the City securing easements from Golf Village for public access to the private streets.

The city tried to obtain these easements but Golf Village declined. Notwithstanding the city’s plans required…

Continue Reading CA6: City Park Causing Public To Use Private Roads Not A Taking Because Owner Can Erect Roadblock

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Please plan on joining us next Wednesday, November 3, 2021, at 8pm ET for the next gathering of the Eminent Domain and Right of Way Club, a social media gathering spot “geared toward right of way professionals as well as anyone interested in the acquisition of land rights for infrastructure projects.” Register for the (free) Clubhouse App here.

I must say that I’m intrigued by this newfangled “clubhouse” thing, and from what I gather it is a place for those who share interest in a topic to talk a bit of shop in a friendly and informal environment. What’s nice about this group is that it isn’t necessarily geared only towards condemnation lawyers (who are welcome, but not the center of gravity), but includes all of the other professionals involved in the industry. 

The topic of the day for this meeting is something near and dear to my…

Continue Reading Join Us – Wed, Nov 3, 2021 (8pm ET) – Eminent Domain & Right-of-Way Club

FrankLUI Co-Chair Prof. Frank Schnidman introducing the faculty

Here are the links to the cases and issues that we just finished speaking about at the 35th Annual Land Use Institute (more information on the LUI here). Today was day 1 of a multi-day remote program and the sessions are available ala carte, so there’s still time to join in and learn.

Supreme Court

  • Cedar Point Nursery: the Supreme Court affirms the “keep out” vibe in property law. Yes, there are three “exceptions” to the presumption that any physical intrusion into property is a taking (torts, entries allowed under “background principles,” and legal exactions), but overall a very strong affirmation of property rights.
  • Pakdel v. San Francisco: the “final decision” ripeness requirement in takings cases is “relatively modest” and turns on “de facto” readiness. Yes, it’s a technical requirement, but let’s not get too technical about it.
  • PennEast Pipeline

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Continue Reading Links And Materials From Today’s Land Use Institute Takings/Eminent Domain Session