42 U.S.C. § 1983 | Civil Rights

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We were all set to write a deep and insightful takings analysis of the U.S. Court of Appeals’ recent opinion in Net Choice, LLC v. Paxton, No. 21-51178 (Sep. 16, 2022), a challenge by the major social media platforms to a Texas statute that limits the platforms’ ability to censor speech or “de-platform” (kick out) speakers they don’t like.

In NetChoice, the Fifth Circuit sustained the statute against a Free Speech challenge. There’s been a lot of commentary on the court’s reasoning, as well as the conflicting result reached by the Eleventh Circuit in a similar case. See here and here, for example.

But the arguments in both of those cases focused on the First Amendment speech issues. Naturally, we don’t limit our view of the issues, and see lurking property rights questions. But in the Fifth Circuit case, the plaintiffs purposely avoided raising takings claims:…

Continue Reading Viewing Social Media Content Censorship Through The Takings Lens

Clint Schumacher’s Eminent Domain podcast is one of those things that we almost shouldn’t post about. After all, every episode is worth your time. But this one is especially good. After all, it features our law firm colleague and friend Jon Houghton, discussing what you all know is one of our fave topics, regulatory takings.

As Clint describes it:

Jon Houghton of Pacific Legal Foundation joins the podcast today to talk about regulatory takings. This is a complex area of the law, but Jon is a true expert and breaks it down into understandable pieces. He discusses how practitioners can assess when a regulation has risen to the level of a taking. He also discusses regulatory taking issues and cases that are current.

So even though we always say “check out the Eminent Domain Podcast,” we’re saying it again. Check it out.Continue Reading Jon Houghton On Regulatory Takings – Eminent Domain Podcast

Screenshot 2022-09-13 at 14-12-11 Feed LinkedIn

One last reminder that there’ still time to register for the upcoming Brigham-Kanner Property Rights Conference at the William and Mary Law School in Williamsburg, Virginia, September 29-30, 2022. If you can’t make it to the historic campus, there’s an option to attend remotely.

In our opinion, the Conference is the best of its kind because it brings together legal scholars and the practicing bar to talk dirt law theory and practice. We also a have a full supplemental program for law students, that covers property law and careers in eminent domain law, a recruiting session, a program on international property rights, and a program on land use law.

Registration for the Conference is ongoing, and you can sign up here.

Here is the full agenda. (We’ll be speaking on Panel #2, “Reshaping the Framework Protecting Property Under the Roberts Court.”)

Come on, join us!

Continue Reading Still Time To Join Us (In-Person Or Remote) For The 19th Annual Brigham-Kanner Property Rights Conference

Screenshot 2022-09-11 at 21-59-15 Northwestern University Law Review Vol 117 Iss 1

Be sure to check out Northwestern Law Review’s symposium issue on “Reimagining Property Rights in the Era of Inequality.” which brought 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.”

We found the essay by Professor Fennell (“Streamlining Property,” and the essay by Timothy Mulvaney (“Compulsory Terms in Property“) to be of particular interest. Full list of essays above, or here.Continue Reading New Symposium: Northwestern L. Rev.’s Property Issue

Screenshot 2022-09-08 at 11-03-58 Cedar Point Nursery and the End of the New Deal Settlement

Here’s your must-read for today, a new article from U. Va. lawprof Julia D. Mahoney, “Cedar Point Nursery and the End of the New Deal Settlement.”

Disclosure: we show up in footnote * along with others for offering “comments and conversations” about the piece. 

Here’s the Abstract:

In Cedar Point Nursery v. Hassid, the United States Supreme Court ruled that a California state regulation granting labor organizations a limited “right to take access” to agricultural employers’ property constitutes a per se physical taking. Cedar Point has sparked intense criticism, with critics arguing that the decision threatens to transform the law of property rights so as to “hobble” government land use regulation and even undermine democracy. This Article explains why the objections of Cedar Point’s detractors are misplaced. Far from disabling government regulation or fomenting stasis by favoring the “already haves,” Cedar Point is best understood as another…

Continue Reading New Must-Read Article: “Cedar Point Nursery and the End of the New Deal Settlement” – Property Rights Are Civil And Human Rights

The facts are pretty straightforward in the U.S. Court of Appeals’ opinion in Frein v. Pennsylvania State Police, No. 21-1830 (Aug. 30, 2022):

Eric Matthew Frein is on death row for cold-blooded murder. In 2014, he ambushed two Pennsylvania State Troopers, killing one and injuring the other. For a while, he evaded capture. Police knew he had used a .308-caliber rifle. So they got a warrant to search the home that he shared with his parents and seize that type of rifle and ammunition.

When they executed the warrant, state police did not find a .308-caliber rifle. Instead, they found forty-six guns belonging to the parents: twenty-five rifles, nineteen pistols, and two shotguns. None was a .308. Even so, the officers got a second warrant and seized them all.

Slip op. at 3.

The police eventually got their man, and Frein was tried and convicted. His appeals (including discretionary…

Continue Reading CA3: Claim That Govt Is Keeping Property Seized (But Not Used) As Evidence “checks all the Fifth Amendment boxes.”

You remember that case we posted recently, from the U.S. District Court for the Eastern District of Texas in which the court granted summary judgment to a property owner after the city police damaged her home in the course of the police’s apprehension of a suspect. The court rejected the Tenth Circuit’s rationale in a similar case (which concluded that these are “police power” actions, and thus never a taking).

After that ruling, the remaining issues (was the city liable under section 1983, and if so what is the just compensation owed) were tried by a jury.

On June 20, 2022, this case went to trial. Two days later, the jury returned its verdict (Dkt. #74). The jury found the City was liable under § 1983 because it acted under color of state law when it violated Baker’s constitutional rights under the Fifth Amendment of the United States Constitution by…

Continue Reading District Court Declines To Back Off Its “SWAT Takings” Verdict

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If you understand the headline of this post, congratulations: you are officially so deep in the weeds that you deserve both a Federal Courts and a Takings merit badge. 

For those of you not in so deep, here’s the short story behind the U.S. Court of Appeals for the First Circuit’s short opinion in Efreom v. McKee, No. 21-1382 (Aug. 18, 2022).

This is one of those pension cases, where the state (here, Rhode Island) shored up its tottering pension system with a new statute that “altered in various ways the retirement benefits to which public employees were entitled, including by reducing the amount and availability of cost-of-living adjustment (“COLA”) payments to retirees.” Slip op. at 4.

As the court noted, “[l]itigation promptly ensured in state court.” Slip op. at 5. Takings claims were included in the lineup. All of the cases were consolidated for trial. Most of the…

Continue Reading CA1: Rooker-Feldman Defeats Federal Court Takings Claim By “State Court Losers”

In Hignell-Stark v. City of New Orleans, No. 21-30643 (Aug. 22, 2022), the U.S. Court of Appeals for the Fifth Circuit, like a lot of other courts, reached an unsurprising conclusion: New Orleans’ restrictions on short-term rental of residential properties isn’t a taking. But there are parts of the opinion that are definitely worth your time to check out. Read on.

The city had gone back-and-forth on whether renting for less than thirty days was a good thing. Originally barring STRs, then in 2016 offering city licenses, and then when the inevitable flood of STRs resulted, retrenching and substantially revising the licensing program:

One year into the initial regime, the City commissioned a study from its Planning Commission to reevaluate the STR policies. The study found that the rapid proliferation of STRs had brought nuisances to the City. Specifically, it discovered that STRs in residential neighborhoods had lowered…

Continue Reading CA5: “But there’s a big difference between saying that something is property for purposes of procedural due process and saying that it is property for purposes of the Takings Clause”

Is there a more appropriate place at which to study property rights and dirt law than William and Mary Law School? After all, it is a stone’s throw from Jamestown, the place where there’s a good argument the concept of property law and property rights first took hold in the New World. As noted by author David Price in “Love and Hate in Jamestown – John Smith, Pocahontas, and the Start of a New Nation” –

The introduction of private property for the common citizen had a salubrious effect on the owners’ sense of initiative, as John Rolfe would observe. By the end of 1619, he reported, the “ancient” (or longtime) colonists had chosen their allotments, “which giveth all great content, for now knowing their owne lande, they strive and are prepared to build houses and to cleare their grounds ready to plant, which giveth ……

Continue Reading Ye Olde Law 608: Eminent Domain & Property Rights, S5E1 @ William & Mary Law