What Owners Want and Government Do: Evidence From the Oregon Experiment (original) (raw)
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The Dog that Didn't Bark: Assessing Damages for Valid Regulatory Takings
2006
If land use regulations that go "too far" are really takings under the Fifth Amendment, one would expect there to be a large number of cases discussing the appropriate way to calculate the "just compensation" for those regulations that are otherwise valid. Oddly there are none. This article explores the reasons for that lack. The lack of any such cases and the problems with any such compensation remedy stem from the confusion in contemporary "takings" jurisprudence. In analyzing the hundreds of cases that discuss "regulatory takings," it becomes clear that the courts recognize that any remedy granting compensation for such "takings" would present more problems than it might solve. Most of this confusion would be resolved by treating "regulatory takings" as violations of the Due Process Clause rather than the Takings Clause.
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Back in 1995, Professor Epstein famously termed such use of the permit power a “racket,” and as observed very recently by Dave Owen, still today many landowners and conservative critics would agree with the Supreme Court’s description of the process (in Nollan v. California Coastal Commission) as an “out-and-out plan of extortion.” However extortionate such deals may be, regulators with permit power may require landowners to bargain with them before developing their land or else face legal sanctions. This Essay explores in more detail how such bargaining has played out under two of the most important permit regimes in federal environmental regulation: wetlands permits under section 404 of the Clean Water Act and incidental take permits under Section 10 of the Endangered Species Act
Condemning Fair Market Value: An Appraisal of Eminent Domain's Just Compensation
2012
f I am grateful for the hard work and the opportunity provided by the Texas Wesleyan Real Property Journal's inaugural board and staff as well as Professor Mulvaney for his assistance and insight in writing this comment. I would also like to thank the main men in my life for their sacrifices over the past three years: my husband for his encouragement and perspective; my son for his ceaseless joy and welcomed distractions; and my father, Chelton Ammons, for his constant support, clever commentary, and without whom none of this would have been possible.
The Horne Dilemma: Protecting Property's Richness and Frontiers
Law & Society: Private Law eJournal, 2016
In a 2015 decision, the Supreme Court concluded that real and personal property should not be treated differently under the Takings Clause and that a government condition requiring raisin growers, in certain years, to reserve a percentage of their crop for government to manage in noncompetitive venues was a per se physical taking. The decision to treat both real and personal property as equally worthy of protection under the Takings Clause has merit given the weak historical evidence suggesting stronger protection for land and the importance of personal property to income generation and capital development in a modern society. What does not make sense is the Court’s continued expansion of its per se physical takings concept to govern many types of property and regulatory settings. Both real and personal property come in many sizes, shapes, and colors. Takings analysis should not ignore differences in the types of property, nor in the complexities of the various property settings. Th...