Regulatory takings

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If you didn’t know takings, and just had to venture guess whether a court would ever conclude that the outlawing of “bump stocks” (a device which attaches to a semi-automatic rifle and makes it cycle really quickly so that it works somewhat like a fully-automatic rifle) was a taking, what would you say?

If you guessed no, you’d be right. And not because you read this blog every day and know that we’ve been down this path before with bump stocks. After all, some cases are not resolved in the mind, but in the heart and in the gut. The Court of Federal Claims’ decision in McCutchen v. United States, No. 18-1965C (Sep. 23, 2019), is one of them.

As we wrote about the earlier decision, as Justice Holmes famously noted, “‘the life of the law has not been logic; it has been experience.’ And experience…

Continue Reading One From The Gut: Outlawing “Bump Stocks” Not A Taking

Last week, along with Bob Grace, I (Robert (don’t-call-me-Bob) Thomas), was a guest on Clint Schumacher’s Eminent Domain Podcast. Stream it above, or download it here.

Clint and I had a wide-ranging discussion that centered on the recent trend of limiting short-term rentals, the legal pushback, and (of course) takings. We discussed the memorably-captioned Tiki Island case from Clint’s home state of Texas. Penn Central, naturally. Vested rights. Mrs. Murphy exceptions (although those deal with discrimination in rental housing). First Amendment stuff. The upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville (Jan 23-25, 2020), at which both Clint and Bob are speaking. And The Castle (which might not only be our favorite eminent domain movie, but our favorite movie period). 

Check it out.

Not only is Clint presenting at our Ethics program in Nashville in January, he will — as he did…

Continue Reading Latest Ep, Eminent Domain Podcast: Short-Term Rentals, Tiki Island, The Castle, Penn Central

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Chief Justice Marshall (L) and Professor Wythe (R) request the pleasure of your company at the 16th Brigham-Kanner Property Rights Conference at the William & Mary Law School, in Williamsburg, Virginia, Thursday and Friday, October 3-4, 2019. Register here, and make your plans to join us. 

The Conference’s main event is the awarding of the Brigham-Kanner Property Rights Prize to Professor Emeritus Steven J. Eagle, recognizing his lifetime of work and scholarship about property law and property rights. Here’s the official announcement:

The annual Brigham-Kanner Property Rights Conference is presented by the William & Mary Property Rights Project and is named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights. The conference is designed to bring together members of the bench, bar, and academia to explore recent developments in the law that affect property rights. The Brigham-Kanner Property Rights Conference began…

Continue Reading Space Still Available: Brigham-Kanner Property Rights Conference, Oct. 3-4, 2019

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Here’s the amici brief we are filing today in support of the Petitioner in a case we’ve been following, Smyth v. Conservation Comm’n of Falmouth, No. 19-223 (cert. petition filed Aug. 20, 2019). 

The Massachusetts Court of Appeals held that a judge, not a jury, determines Penn Central takings questions, and that the owner lost anyhow because, you know, Penn Central.  Here are the Questions Presented:

  1. Whether the loss of all developmental use of property and a 91.5% decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central.
  2. Whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction?
  3. Whether the Court should excise the “character” factor from Penn Central regulatory taking analysis.

Rather…

Continue Reading Here Be Dragons: New Amicus Brief Asks For A “Fresh Look” At The Penn Central Test

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Takings mavens know lawprof Ilya Somin. Among other things, he’s authored some of the more interesting and useful scholarship in our field.

Here’s his latest, published in the 2019 Cato Supreme Court Review, about the Supreme Court’s latest takings case, Knick v. Township of Scott. 

We naturally recommend you read the entirety of his article, Knick v. Township of Scott: Ending a Catch-22 that Barred Takings Cases from Federal Court, which he has posted on SSRN here. 

And for those of you wondering about the snippet above, Prof. Somin was brave enough (or geeky enough) to include a reference to our commentary on the SG’s amicus arguments in Knick, comparing it to the weak-sauce Klingon forehead “retcon” in Star Trek. How could we resist highlighting the inclusion of an impossibly nerdy Trek reference in a published scholarly work? 

Thank you, and bravo, Sir. …

Continue Reading New Article: “Knick v. Township of Scott: Ending a Catch-22 that Barred Takings Cases from Federal Court”

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You overwhelmingly asked for Nashville, and we’re bringing it to you!

Get ready, and hold your place now: here’s the list of programs and speakers for the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Downtown Nashville Hilton, January 23,- 25, 2020. Two-and-a-half days with top-notch national faculty (lawyers from both sides, judges, legal scholars, appraisers, relocation experts, and others).  

Early registration and group rates are available now. 

Here are just some of the programs:

  • Featured Presentation: Property Rights as Civil Rights: Seeking Justice Though the Fourth and Fifth Amendments. Hon. Jonathan Apgar, Jamila Johnson, Alan Ackerman. Moderator: Leslie Fields.
  • Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do? David Breemer, Smitha Chintamaneni, Professor Bethany Berger. Moderator: Professor Steven Eagle.
  • When A River Runs Thought It: Water Rights and

…
Continue Reading Here’s The Agenda And Faculty For The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan 23-25, 2020

Here are the final briefs in the cert process in a case we’ve been following.

In In Guerin v. Fowler, 899 F.3d 1112 (9th Cir. 2018), a three-judge panel of the Ninth Circuit held that Washington state officials’ failure to return daily interest that was allegedly skimmed from the plaintiffs’ state-managed retirement accounts could be a taking. (En banc review denied, by the way.)

The panel rejected the State’s argument that because the Washington Court of Appeals held that Washington’s retirement statute didn’t require the payment of daily interest at all, the plaintiffs didn’t have “property” the state officials took when they kept the interest. If it isn’t “property” under state law, the State asserted, it isn’t “property” for purposes of the Takings Clause.

Not quite, the court concluded. Daily interest on principal is one of those “core” and “traditional” property rights that a state simply cannot disavow. In…

Continue Reading SCOTUS Cert Briefing In “Who Gets To Define ‘Property?’ Case” (And the 11th Amendment, Too)

For many years, a tenant had a month-to-month lease from Baltimore for a space in one of the city’s public markets. One day, the market sent the tenant an email informing it that it no longer “fit in the [redevelopment] plans,” and that it should “pursue other options.” The tenant took that as “get out.” And instead of digging its heels in, the tenant did what the city instructed and sought “other options.” It left.

The tenant then sued, claiming a taking. It also sought relocation benefits under Maryland’s version of the Relocation Act, which requires “[w]henever a program or project undertaken by a displacing agency will result in the displacement of any person, the displacing agency shall make a payment to the displaced person” for things like moving expenses and the cost of locating a replacement business.

The question the Maryland Court of Appeals determined in Wireless One, …

Continue Reading Md On Relocation And Present Participles: Tenant’s Departure After City Told It To Get Out Was “Voluntary”

Today, we’re featuring a post written by our Tennessee colleague, economist William Wade. He writes about the Massachusetts Court of Appeals’ recent decision in Smyth v. Conservation Comm’n of Falmouth, and the more recent cert petition in that case. Bill writes and comments frequently on takings cases. See, e.g., William W. Wade, “Theory and Abuse of Just Compensation for Income Producing Property in Federal Courts: A View from above the Forest,” 46 Tex. Envt’l L. Rev. 140 (2016). 

* * * *

Smyth and Massachusetts’ “New” Penn Central Factor

William W. Wade, Ph.D.

The Massachusetts case, Janice Smyth v. Conservation Commission of Falmouth,[1] is current again. Pacific Legal Foundation lawyer J. David Breemer, filed a petition for writ of certiorari to the U.S. Supreme Court. Mr. Breemer’s petition is encyclopedic in its survey of regulatory takings cases, which demonstrates that Penn Central’s…

Continue Reading Guest Post: An Economist Looks At Takings Law – Smyth And Massachusetts’ New Penn Central Factor

ALI Nashville 2020

The final agenda and faculty list will soon be officially published, but we wanted to give you a preview of what is in store at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, at the Nashville Hilton (downtown, just a few steps away from everything that Nashville has to offer). 

Don’t miss out: in recent years, we’ve been at-or-near capacity, and the conference hotel has even sold out a couple of times. Visit the ALI-CLE website to register and hold your space. 

Here are some of the things we’ll be discussing: 

  • Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do?
  • The Missing Link in Valuing Fixtures
  • When a River Runs Through it: Water Rights and Takings
  • Responding to Project Changes: Valuation When Government Action is Ongoing
  • Property Rights as Civil Rights: Seeking Justice Through

…
Continue Reading Get Ready: The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference Agenda Coming Soon