Regulatory takings

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A short one from the U.S. Court of Appeals for the Sixth Circuit.

In Wenzel v. Federspiel, No. 24-1278 (June 20, 2025), the Sheriff was accused of keeping “fourteen firearms seized in a criminal investigation that ended years ago.” Slip op. at 1. Eventually, the claimed owners of those guns sued, inter alia, for a taking. You got no proof that these guns belong to you, replied the Sheriff. 

The plaintiffs “do not have any documents proving their ownership,” slip op. at 2, so in support of their motion for summary judgment, they submitted declarations that they owned the guns. We’re not sure whether the Sheriff responded with any evidence of his own. But in the end, the district court granted the Sheriff summary judgment because the plaintiffs “had not established constitutional violations.” Slip op. at 3. 

After first concluding that the Sheriff in his personal capacity was…

Continue Reading CA6: A Wrongful Keeping Is A Taking, If Plaintiff Proves He Owns The Kept Property

Take a look at the New Jersey Appellate Division’s opinion in Johnson v. City of East Orange, No. A-2586-23 (June 27, 2025). 

The court vacated the dismissal of a property owner’s takings claim, holding that it was timely. We aren’t going into too much detail because this one is out of our shop. As the opinion notes:

Pacific Legal Foundation, plaintiff’s counsel in the instant matter, represented the plaintiff in Tyler, and appeared as amicus curiae in both the appellate, 257-261 20th Avenue Realty, LLC v. Roberto (Roberto I), 477 N.J. Super. 339 (App. Div. 2023), and state Supreme Court, 257-261 20th Avenue Realty, LLC v. Roberto (Roberto II), 259 N.J. 417 (2025), proceedings in what became the first published authority applying the holding in Tyler in this state.”

Slip op. at 2.  

But here are some of the highlights:

  • A takings claim does not accrue, and

…
Continue Reading NJ App: Takings Claim Accrues When Govt Keeps Property It Should Return To The Owner

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If you know, you know.

Sad birthday wishes to what just might be our most un-favorite decision ever, Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), which turns 46 today. This in addition to the unhappy Kelo-versary earlier this week. A takings and regulatory takings one-two punch! 

Time has not treated the opinion well. Practitioners, judges, and legal scholars across the spectrum have called the three-factor Penn Central test for an ad hoc regulatory taking “demanding,” “fuzzy,” a four-part test, “neither defensible as a matter of theory nor mandated as a matter of precedent,” and “problematic” and “mysterious.”

No one but the Supreme Court professes to understand what that case means. Courts mess up the basic meaning of the factors, treat what is supposed to be a fact-centric “ad hoc”…

Continue Reading Not A Great Week For Property Rights Anniversaries: Penn Central Turns 46 Today

Check out this story from the Frontier Centre for Public Policy: 

Most pundits missed it, but Alberta’s revised Bill of Rights just strengthened property rights in a big way. Senior research fellow Joseph Quesnel breaks down how new amendments could protect landowners from regulatory takings—government actions that restrict property use without compensation. He examines key Supreme Court of Canada rulings and explains why every Canadian jurisdiction should take note. Could this be a game-changer for property rights?

As you may know, property rights are not a national constitutional right north of the border as they are here in the U.S. We’re no experts on Canadian law, but in our view it looks like Alberta is heading in our direction, at least as a province. 

Premier Danielle Smith faced controversy last year for amending Alberta’s Bill of Rights. While most commentators focused on the amendments protecting the right to refuse…

Continue Reading O, Canada! “Alberta Trailblazing on Property Rights Protections”

Please add this one to your podcast listening queue: the latest episode of Bound by Oath, produced by John Ross at the Institute for Justice. BBO isn’t a typical podcast, but more of an audio documentary as we have noted before. If you aren’t a subscriber, you really should be. 

This episode focuses on regulatory takings, and the sleight-of-law that governments frequently employ to avoid the merits of takings claims, or perhaps worse yet to avoid paying compensation even after ordered to. Cases detailed include DeVillier, Agins, First English, Violet Dock Port, Ariyan. This episode is a great companion piece to BBO‘s episodes on Euclid (zoning), Pennsylvania Coal (reg takings), and Berman (Public Use). 

Put on your “self-executing” hat and take a listen! 

Here’s the description of the episode:

The Fifth Amendment says that the government must pay just compensation when it takes…

Continue Reading Must-Listen Podcast: “Neat Takings Tricks” (Bound by Oath, S3, E3)

Backgroundprinciples

Here’s the latest, a student-authored note, “‘Background Principles’ and the General Law of Property,” 138 Harv. L. Rev. 2071 (2025).

Here’s the argument:

Background principles are a strong medicine. When a court analyzes a takings claim, it must first identify the property interest at issue before deciding the more complex, discretionary question of whether that property was “taken.” Background principles are “logically antecedent” to this analysis, meaning that they can foreclose an aggrieved property owner’s claim before the first step.

….

In recent years, the Supreme Court has increasingly defined property by looking beyond state-specific law, toward a more dynamic, unbounded body of what might be called “general property law” or “jurisdictionless property law.”

….

This Note fills that gap by demonstrating that the collision of ascendant general property law and the background principles exception could ultimately cause the Takings Clause to underprotect property interests. Part I provides…

Continue Reading New Article: Note, “Background Principles” and the General Law of Property, 138 Harv. L. Rev. 2071 (June 2025)

Check out the latest episode of the Lunch Hour Podcast, featuring lawprof Donald Kochan, “Property Rights, Regulation, and the Rule of Law.”

Here’s the description:

In this episode of The Lunch Hour with Federal Newswire, host Andrew Langer sits down with Professor Donald Kochan of the Antonin Scalia Law School at George Mason University. They explore why property rights form the foundation of a free and prosperous society, how regulatory takings impact individual autonomy, and what the legal implications are for recent lawsuits against oil companies in Louisiana. Professor Kochan breaks down the concept of “involuntary regulatory servitude,” the role of third-party litigation financing—including foreign influence—and how courts can sometimes undermine economic development through retroactive liability.

Topics Discussed:

  • The foundational role of property rights in society
  • Regulatory overreach and due process
  • Economic impact of property law on tribal lands
  • Louisiana lawsuits and retroactive environmental liability
  • Third-party

…
Continue Reading New Podcast: “Property Rights, Regulation, and the Rule of Law with Donald Kochan”

In Bojorquez v. Florida, No. SC2023-0095 (June 5, 2025), the Florida Supreme Court reached a decision that a lot of other courts have reached: taxi licenses are not “private property” and therefore there’s no taking when the government does something to affect the value of those licenses. But this one has some interesting points, making the opinion worth a look. 

Between the 1976 and 2017, the State implemented a special municipal government — the Hillsborough County Public Transportation Commission — to regulate taxis in Hillsborough County. To operate a taxi, you needed a taxi certificate or permit. In 2012, to clarify that these certificates and permits were transferrable and were considered property, the Legislature declared that issued and future certificates and permits are “the private property of the holder of such certificate or permit[,]” which may be sold or assigned, or otherwise transferred to another. In 2017, the State…

Continue Reading Florida: Taxi Licenses May Have Been Declared “Private Property,” But They Aren’t Actually Private Property

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Knocking on the Supreme Court’s door

Earlier this week in this Order, the U.S. Supreme Court declined to review four property rights cert petitions (three of which were ours):

Is this a sign, something we should place any significance in?

Of course, reading Supreme Court tea leaves is a fool’s errand except for nine people, none of whom are talking. Sometimes there are hints, such as dissents from cert denials, or statements. Not this time. Just what might be considered “routine” denials.

We don’t think that these denials should tell us much of anything about some…

Continue Reading Should We Make Anything Of The Supreme Court’s Denial Of Four Property Rights Petitions?

Here’s the latest in a case we’ve been following. 

In this Order, the U.S. Court of Appeals for the Federal Circuit denied en banc review of a 2-1 panel opinion which concluded that a complaint challenging the CDC’s Co-10 residential eviction moratorium properly pleaded a physical takings claim even though the Supreme Court eventually invalidated the moratorium as beyond the CDC’s authority.

In that opinion, the Court also noted that preventing a property owner from “evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership–the right to exclude.” The Darby panel concluded similarly, holding that prohibiting evictions is not merely regulating the lessor-lessee relationship, but could result in a physical occupation taking. This issue is the same one we’ve been on hold waiting to see if the Supreme Court is willing to take up in GHP Management Corp. v. …

Continue Reading Fed Cir Denies En Banc, Tees Up SCOTUS: Can There Still Be A Taking If Government Acts Illegally? Is Prohibiting Eviction A Physical Taking?