This Essay submits that the arguments that Justice Thomas constructed in his dissent were appropriately focused on the inherently political nature of the Fifth Amendment's Public Use Clause. Unlike the majority, Justice Thomas recognized that when the Supreme Court broadly interprets the public use restriction of the Fifth Amendment's Takings Clause, and at the same time defers to political actors in this arena, it fundamentally abdicates its constitutional responsibility. By deferring to political actors in this area, the Court in Kelo fundamentally abdicated its responsibility and also adopted a majoritarian doctrinal approach. Further, the Court conflated political ends with constitutional purposes. And it is for this crucial reason that the Fifth Amendment aims to insert a check on majoritarian power through express limitations on government's exercise of eminent domain as expressed in the Takings Clause of the Fifth Amendment.
This article examines the seminal 1992 United States Supreme Court decision, Lucas v. South Carolina Coastal Council, 1 specifically focusing on the Lucas nuisance exception. I surveyed approximately 1,600 reported regulatory takings cases decided since the Lucas decision involving Lucas takings challenges. I identified the statutory nuisance cases in which state and local governments unsuccessfully asserted the Lucas nuisance exception as a defense to the courts' findings of a Lucas taking. This article examines the prospective potential of these cases for assisting private property owners in enhancing private property rights protections within the area of regulatory takings.
The subsequent national mortgage foreclosure crisis that seemed almost 5 uncontrollable by 2007 ignited a mortgage-related financial crisis that affected the global market place. News media, business reports, government investigations, 6 regulatory inquiries, and citizen suits focused national attention on the housing crisis and the problems attending what soon came to be known as the "mortgage meltdown." A dual mortgage market had emerged in which subprime lending 7 disproportionately affected minorities (particularly blacks and Hispanics), women, and the elderly.8 Evidence of the disparate impact felt by certain minority borrowers is abundant and the evidence of gender disparities in subprime lending is intriguing. I described the problem of intentional steering of black borrowers into subprime products in an earlier article. I argued that the evidence of disparate impact felt 9 by minorities, combined with compelling statistical data developed in the course of my research on this issue, made the case for a finding of not only disparate impact but of steering—intentional discrimination—based upon race.
The tension between private property rights, human rights, and community are at an all time high in many parts of the world. Social and political changes along with the pressures of globalization call for a new look at the role of private property and its place within the framework of democratic societies.This book addresses the current status of eminent domain and takings law jurisprudence. The focus is the relationship between private property, individual rights and community. The work covers a variety of points of view with respect to the legal, economic, and socio-legal aspects of property and of takings law, with reference to issues of governance, citizenship, community building, and economic development. Contributions address all sides of the issue considering various theories of property that stand behind the need to provide strong protection of private property rights and those that tip the balance in favor of community access to property for the promotion of public goals. Reference is made to the Kelo v New London case and several contributions provide a comparative view of similar issues and disputes in the European context.
For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors' needs. My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they are violated. More specifically, private parties should have standing to defend perpetual conservation easements. A common law property interest would be analogous to the third-party right of enforcement created by the Uniform Conservation Easement Act ("UCEA") and codified by many states in their state statutes. It is not my contention that either grantors, holders, or society in general should be bound by a perpetual conservation easement restriction forever. Some degree of flexibility to reflect changing societal needs is prudent. When measuring the appropriate moment in time to modify or terminate a perpetual conservation easement because of changed conditions, the interests of the larger society should be represented in the calculus. Conferring private-party standing would allow these interests to be represented. My Article provides an efficiency and social justice critique. First, in Part II, I briefly describe the history and rationales underlying the creation and perpetuation of conservation easements. I also discuss the close relationship between preservation and a strong private property regime. Second, in Part III, I discuss challenges to perpetual conservation easements, the doctrine of changed conditions, as well as the importance of private-party enforcement rights to the defense of conservation easements. Next, in Part IV, I consider efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions, concluding that private parties should have a recognized, common law property interest in the conservation easement. Then, in Part V, I broaden my analysis of conservation easements to demonstrate that decentralizing ownership interests in property by enforcing the decisions of property owners to burden their property with perpetual conservation easements is consistent with a democratic property system. Finally, in Part VI, I discuss objections to my proposal and alternatives to aggressively defending perpetual conservation easements against challenges pursuant to the doctrine of changed conditions. I conclude that my proposals articulated in Parts IV and V will result in efficient and appropriate levels of conservation while promoting decentralization of private property ownership.
When does resorting to random selection by casting lots produce a just distribution or allocation of property? Some argue generally in support of casting lots, asserting that it is a viable substitute for equal distribution of property. Others argue against casting lots, contending that it undermines distributive justice. This article considers instances of casting lots from the nineteenth century to the present and explains why the latter view is the better view. The Antelope is one of the earliest United States Supreme Court cases addressing distribution of property by casting lots. It chronicles a dispute over the allocation of captured Africans as part of the international slave trade. The Supreme Court rejected the lower court's recommendation of casting lots to decide competing claims. Instead, the Court endorsed a more individualized, merit-based assessment for determining competing property rights. The Antelope is thus an excellent beginning point to consider contemporary issues surrounding lotteries and questions of distributive justice. The significance of casting lots to distribute property is not relegated to the past. In recent years, courts have considered the legitimacy of casting lots to achieve distributive justice in educational opportunities. My thesis is that casting lots frequently results in unjust distributions of property. My critique has two parts. First, casting lots is deceptive because, although lotteries purport to be random, they are frequently preceded by nonrandom decisions that result in important distributional effects that the lottery masks. Second, even if government acknowledges that most lotteries are not completely random because of nonrandom pre-lottery decisions, casting lots is often unfair because it does not account for individual merit and characteristics such as need, fitness, desert, status, and position. Essentially, casting lots obscures the decision to avoid making difficult choices.
What ought to be the nature of an owner's right to pursue a regulatory takings claim when the regulation the owner seeks to challenge was in place when the owner acquired the regulated property? Some argue that an owner should not be entitled to challenge such a restriction as a Fifth Amendment taking if the property was already impaired by the regulation at the time the owner acquired it. Proponents of this view contend that allowing subsequent owners to challenge the enforcement of regulations, pre-dating their acquisition of title, and of which they had notice, would confer undeserved windfalls and reward land speculation to the detriment of the public fisc. But this view of the non-transferability of the regulatory takings claim de-emphasizes the impact of the regulation on the property itself and focuses the takings inquiry at the wrong moment in time. Regulatory land use controls should be evaluated as restrictions on property and as unrelated to the ownership status of property. A rule that limits or bars successive owners from asserting the full takings claim effectively eviscerates the takings clause for many forms of regulatory takings. It allows governments to destroy valuable property interests without paying compensation. This article emphasizes that the takings claim is a distinct and recognizable form of property that exists independent of the property owner. The takings claim is valuable private property and, as such, should be alienable in a manner consistent with other forms of private property; any other approach is tantamount to a judicial taking.
