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Misusingheader

Check out this recently-published student note: Cameron P. Hellerman, Misusing Eminent Domain: Pretextual Takings For A Traditional Public Use, 93 Fordham L. Rev. 2229 (2025).

The article considers the Second Circuit’s decision in Brinkmann v. Town of Southhold, about what we call “spite takings” — those in which the government’s stated public purpose supporting the taking is not the actual reason. That issue is now being considered by another court in Rhode Island.

Here’s the summary:

Eminent domain is a powerful tool at the disposal of local, state and federal governments.  The Fifth Amendment to the U.S. Constitution imposes two conditions on this sovereign power:  the taking must be for “public use,” and the condemner must pay “just compensation” to the property owner.  There are minimal guardrails in place to police potential misuse of the eminent domain power in the courts.  The U.S. Supreme Court equates “public use”

…
Continue Reading New “Spite Takings” Article: “Misusing Eminent Domain: Pretextual Takings for a Traditional Public Use” (Fordham L. Rev.)

Daunting

You know the claim: even after the federal courts opened back up to regulatory takings claims, winning a case is still pretty difficult. 

Yes, that may be by design: maybe it’s not supposed to be easy to get in the way of the regulatory state and prevail on a claim that a government action has “gone too far” by having similar effects on the owner’s property rights as an exercise of eminent domain. Or maybe it is. But either way, those of you who have been at this long enough can sense that something isn’t quite right. That our property owners are not getting a fair shake from the courts. That there’s an imbalance in The Force. 

Whether it is surviving a motion to dismiss where the court applies stricter pleadings standards than in other civil cases, or getting to the merits by escaping summary judgment, or even having…

Continue Reading New Article: “Daunting Odds: Regulatory Takings Claims in The United States Circuit Courts of Appeals,” 94 Miss. L. J. 637 (2025)

Naturalpropertyrights

The long-awaited book from lawprof Eric Claeys, “Natural Property Rights” (Cambridge Press 2025) has dropped.

More, after we’ve had a chance to read it.

Now mind you, in the hardcover edition the thing ain’t exactly cheap (£100 GBP from Cambridge, or $130 from Amazon). But frankly, for an academic book the price isn’t bad.

And if the table of contents and the sampler sections posted here, it looks like it will be well worth it.

Here’s a summary of what you’ll get:

Natural Property Rights presents a novel theory of property based on individual, pre-political rights. The book argues that a just system of property protects people’s rights to use resources and also orders those rights consistent with natural law and the public welfare. Drawing on influential property theorists such as Grotius, Locke, Blackstone, and early American statesmen and judges, as well as…

Continue Reading New Book: “Natural Property Rights” (Eric Claeys)

Mulvaney_front_page.jjpg

Lawprof Timothy Mulvaney has published “Reconceptualizing ‘Background Principles’ in Takings Law,” 109 Minn. L. Rev. 689 (2025). 

If the title alone doesn’t grab your interest, here’s the summary from the article’s introduction:

Both libertarians and progressives rejoiced in the result reached by the Supreme Court in the 2023 matter of Tyler v. Hennepin County. This Article asserts that such unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the Constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the background principles of property laws endorsed by a majority of states rather than in those underpinning the laws of their own state.

Suspicious that the Court intended such a revolutionary upheaval of the state variations that have characterized our federalist system for more than two centuries, the Article contends that Tyler is better interpreted as an epic failure in judicial transparency: The opinion reflects a sly reticence to acknowledge the reality that resolving competing claims to property demands moral judgment regarding the background principles of property law. In following this deceptive course, Tyler invites a race to legislative homogeneity and erects a dangerous barrier to states’ abilities to innovate in the face of evolving social, economic, and environmental conditions.

Check it out.
Continue Reading New Article: “Reconceptualizing ‘Background Principles’ in Takings Law,” 109 Minn. L. Rev. 689 (2025)

Blevins

Our Pacific Legal Foundation colleague Ethan Blevins has published the lead article in the latest edition of the Wake Forest Journal of Law and Policy, and it is on a subject that makes it a must-read for you takings mavens.

The title says it all: “Penn Central in the States.” How do states treat the U.S. Supreme Court’s Penn Central test? Find out here, as Ethan surveys over 200 state court applications of that notorious test. Do they do better than federal courts? What court should you file in?

And if that doesn’t grab you enough, here’s his conclusion:

I conclude that most of these problems do not stem from unfaithful applications of the Supreme Court’s regulatory takings doctrine, but rather are a direct consequence of the Supreme Court’s failure to establish a clear, reliable test rooted in sound principles. I hope this article’s findings can assist…

Continue Reading New Article: Ethan Blevins, “Penn Central in the States,” 15 Wake Forest J.L. & Policy 105 (2025)

Screenshot 2025-01-23 at 15-10-58 Takings and Choice of Law After i Tyler v. Hennepin County _i by Eric R. Claeys SSRN

Check out this article, forthcoming in the George Mason Journal of Law, Economics, and Policy from lawprof Eric Claeys, “Takings and Choice of Law After Tyler v. Hennepin County.”

This is one of the pieces coming out of the recent symposium “Imaging the Future of Regulatory Takings” at George Mason Law School.

Here’s the Abstract:

This Essay contributes to a symposium on the future of regulatory takings. It focuses on choice of law in eminent domain disputes. When claimants bring eminent domain claims in federal courts, the courts must determine whether the claimants have constitutional “private property” in the entitlements allegedly taken. Should that determination be made with federal law, with the law of the state allegedly taking property, or law from some other source?

The 2023 Supreme Court decision Tyler v. Hennepin County addressed that issue. Under Tyler, it is a federal question whether an eminent domain claimant has constitutional private property. To answer the question, federal courts usually consult the law of the state where the alleged taking took place. But that presumption applies only if state law seems to secure and not to circumvent the federal right. And if that reservation is not satisfied, federal courts may consult a wider pattern of legal sources—Anglo-American history, the general law of the several United States, federal court precedents, and a broader cross-section of law from the state allegedly taking property. That approach resembles the approach taken generally for federal constitutional rights—especially in Indiana ex rel. Anderson v. Brand (1938)—but varies from the general approach in the sources it makes relevant to settle what counts as private property under the Fifth Amendment. This Essay interprets Tyler, and it offers a normative justification for Tyler’s approach to choice of law in eminent domain. 

Don’t miss this one.

Continue Reading New Article (Eric Claeys): “Takings and Choice of Law After Tyler v. Hennepin County”

Here’s what we’re reading this day:

Good weekend reading as well. Continue Reading Friday Dirt Law Round-Up

Screenshot 2025-01-12 at 09-35-14 Taking Old Ladies’ Homes A Comparative Exploration of Eminent Domain in

Check this out, a just-published unsigned student piece: Note, “Taking Old Ladies’ Homes: A Comparative Exploration of Eminent Domain in Islamic Law,” 138 Harv. L. Rev. 841 (2025).

Not that we have any background to be able to evaluate the author’s assertions, but at the very least, the piece is very interesting (you learn stuff!), and does reach the conclusion that forced acquisitions are not absolutely necessary to “develop[] advanced built environments and economic systems[.]” See id. at 862 (“It is not enough to assume that any society, or indeed any modern society, requires a particular form of eminent domain or the eminent domain power itself.”).

Here’s a summary.

This Note is therefore likely the first exploration of premodern Islamic discourses and practices of “eminent domain.” It will argue three things about forced appropriation of property for public purposes in premodern Islamic law: First, that unlike in Anglo-American…

Continue Reading New Article (Note): “Taking Old Ladies’ Homes: A Comparative Exploration of Eminent Domain in Islamic Law,” 138 Harv. L. Rev. 841 (2025)

Screenshot 2025-01-04 at 08-42-51 Revisiting Palazzolo The Blurry Lines Between Ripeness and Standing that Enable Windfalls by Timothy Harris SSRN

Check out, the latest from Professor Timothy Harris, “Revisiting Palazzolo: The Blurry Lines Between Ripeness and Standing that Enable Windfalls,” 73 Kan. L. Rev. 289 (2024). He dives into the question of whether an owner who acquires property already subject to regulations that allegedly work a taking may assert a claim, or does that claim belong only to the prior owner?

Here’s the Abstract:

When property changes hands, the pre-existing right of the seller to bring an inverse condemnation claim against the government does not always pass to a subsequent owner. Sometimes it does. If valid takings claims expire on sale, the government may experience a windfall. But if a buyer gets a deal on burdened property and then sues under a prior owners’ takings claim, the new property owner gets a windfall. Established Supreme Court rules draw distinctions between the character of various “takings” to determine whether…

Continue Reading New Article: Timothy Harris, “Revisiting Palazzolo: The Blurry Lines Between Ripeness and Standing that Enable Windfalls,” 73 Kan. L. Rev. 289 (2024)

Heads up law students and young lawyers: the American Bar Association’s Section of State & Local Government Law has called for submissions for its annual writing competition.

Topics which the Urban Lawyer publish pieces about include land use, takings, eminent domain, housing, RLUIPA, exactions … and more. 

Here’s the announcement: 

The State and Local Government Law Section of the ABA is holding its annual Writing Competition, with the winner to be published in the Section’s Law Review, The Urban Lawyer.

The Section invites all those who qualify as young lawyers (less than 36 years old or in practice for less than 10 years) and law students to submit articles of 25-50 pages in length, and properly footnoted, on any topic of state or local government law of their choice.

Membership in the ABA as a Law Student or in the ABA Young Lawyer Division is encouraged but is not…

Continue Reading Announcement: State & Local Govt Law Writing Competition