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We don’t read the New York Times all that much these days, but we couldn’t resist commenting on the recent op-ed authored by a former federal government lawyer that takes issue with recent decisions by the U.S. Supreme Court, “The Supreme Court Has Gone Off the Rails” (Oct. 4, 2021).

On one hand, the op-ed might not be anything new because the NYT doesn’t try hard to hide where it stands on the Supreme Court (see here and here, for example), and yet another opinion piece questioning the Court’s legitimacy might be just piling on. But this one is authored by a fellow who was “was a U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general in the George H.W. Bush administration” as well as a law clerk for William Rehnquist. Which means, we suppose, that he’s not yet another…

Continue Reading The Buried Takings Lede In NYT Op-Ed That SCOTUS “Has Gone Off the Rails”

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There’s still plenty of time to register and join us for the 18th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School, Thursday and Friday, September 30 and October 1, 2021.

Yes, you may attend in-person, or remotely. The registration fees are very reasonable, ranging from $0 (yes, free!) to $200 (go here, and click “Tickets” for the details).

This year’s Brigham-Kanner Property Rights Prize winner is Professor Vicki Been (NYU Law). The Conference includes presentations on:

  • Remembering Toby Brigham
  • The Role of Empirical Research in Defining the Scope of Constitutionally Protected Property Rights: A Tribute to Been
  • The Relationship between Eminent Domain and Social and Racial Injustice (this is the panel on which we’ll be presenting)
  • Just Compensation Issues, Changing Public Uses, and Other Recent Developments
  • The Interdependence of Property and First Amendment Rights
  • The Distributional Implications of Land Use Regulation

Details on…

Continue Reading 2021 Brigham-Kanner Property Rights Conference (Sep. 30 – Oct. 1, 2021) – Still Time To Join Us

Here’s the pending cert petition asking the Supreme Court to take up (pun intended) a case involving a Penn Central taking.

This is another one of the cases from the big auto bailout/takeover. The plaintiffs are (former) Chrysler dealers whose dealership franchise contracts were sloughed off as part of the $38 billion federal bailout of the auto manufacturers. As part of the deal, the companies were required to cancel many of their franchise agreements, forcing the dealerships to close.

Everyone agrees that these franchise agreements are “property,” and that the dealerships were profitable. But the Federal Circuit held that under Penn Central‘s “economic impact” factor, none of that mattered because the court concluded the franchises would have been worthless if the feds had not prevented Chrysler from failing. So to save Chrysler, it was ok to throw the dealers under the bus, so to speak.  

Here are the…

Continue Reading Cert Petition: It Should Matter When A Profit-Making Enterprise Is Sacrificed For A Third Party

Check this out. A short online comment at the Yale Journal on Regulation by Judge Thomas Griffith, “A New Test Or Merely A New Name For Some Regulatory Takings?“

The comment addresses the notion that the Supreme Court in Cedar Point shuffled up takings doctrine:

Much of the commentary about the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), has focused on its implications for labor law. Yet some of the Chief Justice’s language in the majority opinion suggests a substantial reworking of the Court’s approach to “regulatory takings”—an area that the Court has acknowledged to be “a problem of considerable difficulty.” A close read of the opinion, however, suggests that even though Court may have reshuffled the categories it has used in the past to analyze takings claims, the law remains largely unchanged, if not slightly more obscure.…

Continue Reading New Comment: Cedar Point – “A New Test Or Merely A New Name For Some Regulatory Takings?”

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

  • Keynote: Do Animals Have Property Rights?
  • Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
  • Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness
  • Challenging Public Use: Lessons From a 67-Day Trial
  • COVID Takings
  • Property Rights as Civil Rights
  • Eminent Domain National Update
  • Federal Court and the Daubert Challenge: How to Prepare
  • How to Position Your Client for the Fallout When Projects Don’t Get Built
  • Rural Broadband and the Emerging Constitutional Challenges
  • Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
  • How Condemnor and Property Owners’ Counsel Prepare the Battlefield
  • How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
  • Ethics
  • …and more, including a full slate of networking and social events!

We’ve sold out the last few years, so don’t Continue Reading Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

Screenshot 2021-08-11 at 14-56-53 Constitutional Litigator Property Rights (two openings) Pacific Legal Foundation

You’ve got big dreams, you want fame…

If so, here’s your chance: two (2!) Takings Maven Dream Jobs® are now available.

Pacific Legal Foundation requesting applications for positions as a Property Rights Constitutional Litigator. Job description includes “You will find and win the next important Supreme Court property rights case.”

Oh, have we got your attention now?

You: An entrepreneurial freedom fighter with a passion for, and significant experience in, property rights litigation. You find and win cutting-edge property rights cases across the country. You are a national spokesperson for property rights—you speak at conferences, engage the media, and publish scholarship on property rights. You are a leader who will elevate PLF’s junior attorneys to be the best property rights litigators in the nation. You have demonstrated a dedication to public interest law and property rights throughout your career.

…

You will be a leader in PLF’s…

Continue Reading Takings Maven Dream Job® (x2): Property Rights Constitutional Litigator at Pacific Legal Foundation

According to that trustworthy source Wikipedia, in drama, the term deus ex machina (“God from the machine”) “is a plot device whereby a seemingly unsolvable problem in a story is suddenly and abruptly resolved by an unexpected and unlikely occurrence. Its function is generally to resolve an otherwise irresolvable plot situation, to surprise the audience, to bring the tale to a happy ending, or act as a comedic device.” It is mostly considered a “lazy or cheap” trope.

And that takes us to the various federal, state, and local eviction moratoria that are (or were) in effect at various points in the covid epidemic. To us, those have mostly seemed like cases of kicking the can down the road (to use another overworn trope) because although couched as merely temporary withholding of the usual eviction remedy for nonpayment of rent, in a great number of cases the practical effect…

Continue Reading What The Deus Ex Machina? – Federal Court Complaint: California’s Eviction Moratorium Is A Taking

You just have to love any case that starts with the sentence, “Dried mangoes form the core of this commercial dispute, which involves a Fifth Amendment challenge…” Shades of Horne!

Well, you can add mangoes to your “healthy snack” list (hat tip CJ Roberts) and include the Supreme Court of Guam’s opinion in Western Sales Trading Co. v. Genpro Int’l, Inc. (Guam), No. CVA19-023 (July 28, 2021), in your oeuvre of fruit/takings cases, because the court held that a territorial statute permitting a judgment creditor to take property from a third party (who obtained it from the judgment debtor) violates the Takings Clause. The court concluded that Guam Code Ann. §§ 23401-23406 (the “turnover statute”) works an unconstitutional taking in violation of the Fifth Amendment and the Guam Organic Act. Follow along.

The statute allows a judgment creditor to apply to the Guam courts for an…

Continue Reading Inorganic Fruit: Statute That Allows Creditor To Seize Property From Third Party Rec’d From The Debtor Is A Taking

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

  • Property Rights as Civil Rights
  • Eminent Domain National Update
  • Just Relocation: Understanding the Law and Regulations to Ensure Fairness
  • Challenging Public Use: Lessons From a 67-Day Trial
  • COVID Takings
  • Federal Court and the Daubert Challenge: How to Prepare
  • Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
  • How to Position Your Client for the Fallout When Projects Don’t Get Built
  • Rural Broadband and the Emerging Constitutional Challenges
  • Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
  • How Condemnor and Property Owners’ Counsel Prepare the Battlefield
  • How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
  • Ethics
  • …and more, including a full slate of networking and social events!

We’ve sold out the last few years, so don’t miss out. Room block now taking reservations. Continue Reading Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)


Talk amongst yourselves.

We’ve had our say, so in this post — the sixth and final post in a series of deeper dives about June’s U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid , No. 20-107 (June 23, 2021) — we’re linking to what others are saying about the case.

Here are all of the posts in our Cedar Point series:

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don’t miss listening to the recording of ALI-CLE’s “Takings and Eminent Domain After Cedar Point: What Practitioners …

Continue Reading Cedar Point Part VI: What Others Are Saying