Public Use | Kelo

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gilmartinWe’re not all that down with the “occupy movement.” It seems too unfocused, too anti-competition, too anti-success for us to get on board with the idea that equality of result is what the American dream and our system are based on.

But things like this profile of MaryAnne Gilmartin, executive vice president of commercial and residential development at Forest City Ratner Companies in this month’s Westchester magazine, make us want to go down to Zuccotti Park and set up a tent.

An “innovative and tenacious builder” who has “left her mark” on the New York skyline, “she’s helping to shape Atlantic Yards, a complex of residential and commercial buildings that will also be the new home of the New Jersey Nets.”

The profile details how she got her start, interning and then working for the New York City Economic Development Corporation for seven years before sliding over to Forest City…

Continue Reading The Eminent Domain One-Percenter

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“Yosemite,” according to California Place Names, Erwin Gudde’s seminal work on the origins of (surprise) California place names, means “they are killers.” It was “[e]vidently a name given to the Indians of the valley by those outside it.”

I raise this historical tidbit because I must admit to feeling a little like “those outside it” when I was invited to speak about regulatory takings at the California State Bar’s Environmental Law Conference at Yosemite. I figured as a conference devoted to environmental law, it was a going to be a decidedly skeptical audience, given my advocacy for property owners and property rights. I accepted the invitation nonetheless, heartened that this conference wasn’t going to be an echo chamber and that they were at least open to hearing competing ideas.

It turns out that my prediction about “they are killers” was not accurate — the audience, while not exactly…

Continue Reading Yosemite Seminar Summary – Regulatory Takings: Looking Back And Looking Forward

Law professor Richard Epstein was a featured speaker (and past Brigham-Kanner prize winner) at the recent B-K Property Rights Conference in Beijing. He’s summarized his thoughts and insights in “Going Red on Property Rights,” posted at the Hoover Institute’s site. He writes:

Earlier this month, I attended a Chinese-American Conference in Beijing on property rights co-sponsored by the William and Mary Law School and the Tsinghua University Law School.  One purpose of the conference was to award in absentia the Brigham-Kanner Prize to retired Justice Sandra Day O’Connor for her contributions to understanding the law of property. The intensive two-day discussions on property rights were open, animated, and cordial. They also revealed deep ironies in both the Chinese and American approaches to property rights.

The entire piece is well worth reading. All of our posts on the B-K Conference are collected here. I’m writing my wrap-up of the Conference and will post it shortly.

In the meantime, I offer this little story.

A few of us are walking the 15 minutes from the hotel to the moot courtroom at the Tsinghua Law School, through the university campus. We cross the lightly traveled road, and most of us step up onto the opposite sidewalk. Professor Epstein, engrossed in conversation with another lawprof, doesn’t notice they are walking down the middle of the road, blocking traffic.

A few seconds later, a car comes up behind them.

In Beijing, pedestrians decidedly do not have the right of way.

“Get out of the road!” we call out.

Epstein slowly turns around, looks at the car, looks at us, and says with a smile, “sidewalks are for mere mortals.”

(But he does get out of the road.)
Continue Reading Brigham-Kanner Property Rights Conference – “Mere Mortal” Professor Richard Epstein on “Going Red on Property Rights”

Earlier, we posted Justice Scalia’s assertion at a recent conference that Kelo ranked among the top all-time blown calls by the Supreme Court. While the Kelo majority opinion is decidedly foul, does it really sink to the level of Dred Scott, the opinion in which the Court concluded that Africans could never be U.S. citizens?

Well, one writer doesn’t think so. In the Atlantic, Garrett Epps writes “Can Eminent Domain Be as Bad as Slavery?” While there is much we agree with in Mr. Epps’ piece, especially his conclusion (we’re sorry, eminent domain abuse, as bad as it is, is not quite as bad as concluding that a class of people are simply incapable of being citizens because they are somehow lesser humans — that’s just repugnant), we don’t buy in wholly to his reasoning.

He outlines three reasons why Justice Scalia’s dislike of Kelo is…

Continue Reading More On Scalia, J.’s, Assertion That Kelo = Dred Scott

Cover_42_3_ The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Condemnation Law: Public Use, Private Property, 43 Urban Lawyer 877 (2011).

The article “summarizes recent cases in which the issue was the power of condemnors to take property, including challenges under the Public Use Clause, as well as other challenges on the power to take” (from the Introduction).

This volume of The Urban Lawyer contains this and other articles with updates on environmental law, regulatory takings, land use and zoning, and municipal bond financing. For those of you who are SLG Section members, your copy is undoubtedly in the mail, and the pdf version will soon be available on the Section’s web site. For those of you who are not Section members you get a freebie, at least of my article.

If you are…

Continue Reading New Article – Recent Developments in Condemnation Law: Public Use, Private Property

Here’s what we are reading this Thursday:

  • Appeals Court Declines Invitation To Destroy Land Use Law As We Know It – from the Massachusetts Land Use Monitor blog: “Now that the Appeals Court has reminded us of the permanence of permit conditions, anyone who receives a permit with a restrictive condition should think twice about whether that condition is a proper exercise of municipal authority, or whether an appeal should be taken in an effort to modify or strike a condition that will otherwise burden the land for time immemorial.”
  • The ‘Public Uses’ of Eminent Domain: History and Policy – (hat tip to PropertyProf blog for the heads-up) – “This paper examines the effects and implications of the ‘public use’ requirement for the exercise of eminent domain in the United States. It is part of an ongoing inquiry the consequences of eminent domain in the United States. The first part examines the history

…
Continue Reading Thursday Links: Public Use, Mass Court Saves Land Use, Judicial Takings

According to the ABA Journal, Justice Antonin Scalia said this:

Justice Antonin Scalia predicted Monday that the Supreme Court’s decision in Kelo v. City of New London will be overturned.

Speaking to students at the Chicago-Kent School of Law, Scalia criticized the decision allowing the city of New London to use eminent domain to seize property for economic development, the Chicago Sun-Times reports. “I do not think that the Kelo opinion is long for this world,” Scalia said.

Scalia ranked Kelo among the top cases in which the court made a mistake of political judgment, according to the Sun-Times account. The others were the Dred Scott v. Sanford decision in favor of a slave owner and the Roe v. Wade decision finding a constitutional right to abortion.

“My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence,” Scalia said. “But it…

Continue Reading Scalia: Kelo = Dred Scott = Roe

Save the date: on Thursday, December 1, 2011 (1:00pm-2:30pm EST, 10:00am-11:30am PST) we’ll be presenting the on-line seminar “Eminent Domain: Redevelopment Challenges for Local Governnment – Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use.“

Joining me are colleagues Anthony Della Pelle (McKirdy & Riskin – New Jersey), J. Casey Pipes (Helmsing, Leach, Herlong, Newman & Rose – Alabama), Rick E. Rayl and Bradford Kuhn (Nossaman – California), and Mark M. Murakami (Damon Key Leong Kupchak Hastert – Hawaii).

Each member of the faculty should be well-known to our readers: Tony publishes the New Jersey Condemnation Law blog and is a frequent speaker at the annual ALI-ABA eminent domain program. Casey is with the Owners’ Counsel member firm from Alabama and Co-Chair of the ABA Litigation Section’s Condemnation, Land Use, and Zoning Law Committee. Rick and Brad produce…

Continue Reading Upcoming National Webinar – Eminent Domain: Redevelopment Challenges for Local Government

Next week, power adapters and internet connectivity permitting, we’ll be blogging from the Brigham-Kanner Property Rights Conference at the Tsinghua University School of Law in Beijing, People’s Republic of China.

Admin note: We’ve added “Brigham-Kanner Conference” as a separate category to catalog the posts related to the Conference. In order to read all of the posts under this topic, go here.

A property rights conference in the PRC? Should be interesting.

Here‘s the agenda and the list of sessions.

The honoree this year is Justice Sandra Day O’Connor. The speakers include the past winners of the B-K prize, Frank Michelman, Richard Epstein, James Ely, Margaret Jane Radin, Robert Ellickson, Richard Pipes, and Carol Rose. In addition to these luminaries in the property law and property rights field, the speakers include the top property law scholars and practitioners in the U.S. (Alan Ackerman, Andy Brigham, Jim Burling, David Callies…

Continue Reading Blogging From Beijing: The Brigham-Kanner Property Rights Conference

Some day, the Court will grant cert in another eminent domain case.

But today is not that day.

The Court declined to review C & J Coupe Family Ltd. P’ship v. County of Hawaii, No. 11-75, the petition that asked, after Kelo, when is eminent domain pretextual? We represent the petitioner, and after the case did not show up on last week’s grant list the handwriting was on the wall. But today’s order list made it official.

This makes at least the third pretext petition denied by the Court, meaning the lower courts will continue to flounder about searching for clues in the Kelo majority opinion’s language for the correct standard to assess whether a condemnor’s asserted reason for a taking is a pretext to private benefit, and ask whether Justice Kennedy’s concurring opinion means much of anything. Until the Court establishes a standard, any hope of…

Continue Reading Cert Denied In Pretext Case