Panel Abstracts & Other Materials

Abstracts for many of Friday's presentations can be found below. Further materials that support and supplement the panel discussions have been included. 

Friday, October 5, 2018

Panel 1: The Federalism Dimension of Constitutional Property: A Tribute to Sterk

Further Materials: What's Federalism Got to Do with Regulatory Takings?

Michael M. Berger, Partner, Manatt, Phelps & Phillips, LLP, Los Angeles, California

Don’t get me wrong; some of my best friends are Federalists. It just brings me up short when someone proposes to apply the concept of federalism—namely, deference to state control—to issues of fundamental right without first establishing and acknowledging the existence of a uniform federal baseline of constitutional protection, something Professor Michelman has called “a national constitutional norm of regard for a specified class of individual rights.” I especially get this feeling when some of those proposing such deference concede that “state courts have had a somewhat checkered record” in protecting the rights of property owners. As someone who has practiced constitutional property law in California for the last half century, I may be jaundiced (or, perhaps, simply beaten up), but (at least as applied to California) that “checkered” conclusion is vastly understated. The idea of handing over complete control of constitutional protection to the tender mercies of courts that can thumb their judicial noses at the United States Supreme Court as easily as California has makes my blood run cold. And why should others be trusted not to jump on the California band-wagon (as California continuously shows what can be gotten away with), even though others may be more rational now? As if to prove my point, Professor Sterk has opined that, after the Supreme Court decided First English, holding that the Fifth Amendment mandated compensation as the remedy for a regulatory taking as a matter of overriding federal law (thus overruling California’s contrary conclusion), “a number of state courts have developed doctrines designed to eviscerate the damages remedy.” If nothing else, such state court mutinies demonstrate the need for more Supreme Court intervention and a clearer system of uniformly applied standards. (read more)

Watch the Panel! Click here to see Michael M. Berger's recorded conference presentation: What's Federalism Got to Do with Regulatory Takings? 
Abstract and Further Materials from: Choice of Law in Resolving Takings Claims

Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School

This paper considers whether, or to what extent, subsidiary issues that arise in the course of applying federal takings doctrine should be resolved as a matter of federal constitutional law, state law, or some combination thereof. It argues that there are three choices: federal constitutional law, state law, or a federal patterning definition that lays down certain general parameters as a matter of federal constitutional law but otherwise follows state law if it is consistent with these parameters. The paper illustrates these choices by considering a recent Supreme Court decision, Murr v. Wisconsin, which held that the horizontal dimensions of a “parcel of land” should be determined, for takings purposes, as a matter of federal constitutional law. It argues that wholesale federalization of the issue in this context was misguided.  A better solution was to adopt a federal patterning definition of “parcel,” which would largely resolve the issue by looking to applicable state law unless there is affirmative evidence that parcel boundaries have been manipulated to manufacture a takings claim. (read more)


Panel 2: Background Principles of Common Law and Constitutional Property

Abstract: Government Ownership of Land and the Limits upon Transfers or Sale: The Public Trust Doctrine

David L. Callies, FIACP, Benjamin A. Kudo Professor of Law, William S. Richardson School of Law, University of Hawaiʻi at Mānoa

How do Americans view public land? In particular, what assumptions do we make about our individual rights to access and use? Being a relatively law-bound society, when pressed, most Americans would look to the law for answers. The common law of England—including that law applicable to property—was adopted in most of the American colonies before the American Revolution and most states after the formation of the Union. After 1783, most American lawyers used as a primary reference Blackstone’s Commentaries on the Law of England by the latter third of the 18th Century as the source of common law principles. However, the millions of square miles of land which ultimately became the United States resulted in principles of land ownership and management grounded in the inviolate nature of private rights in land to the exclusion of all others, together with the practice of national government selling or leasing vast tracts of public land for exclusive private use. This is in relatively sharp contrast to the theory of tenure, or of holding land, whether private or public, “for” someone else—often the king or his nobles—which prevailed in England. As a result, British land law is shot through with rights of the public to enter and use both private and public land (as in British national parks which consist primarily of private land, and in right-to-roam laws). In America, not so much. (read more)

Further Materials from David Callies: The Public Trust Doctrine
Abstract from: The Public Trust Doctrine, Private Water Allocation, and the Mono Lake Story

Erin Ryan, Elizabeth C. & Clyde W. Atkinson Professor of Law, Florida State University College of Law

This book recounts the epic tale of the fall and rise of Mono Lake—the strange and beautiful Dead Sea of California—which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in public trust ideals, which has redounded to other states and even nations as far distant as India. (read more)

Further Materials from Erin Ryan: Excerpts from The Public Trust Doctrine, Private Water Allocation, and the Mono Lake Story
Further Materials from Erin Ryan: The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v. Superior Court
Abstract: Customary Law as a Background Principle

Christina M. Martin, Attorney, Pacific Legal Foundation, Palm Beach Gardens, Florida

The doctrine of custom is an old doctrine that recognizes the right of non-owners to use a particular area of  private property for a particular “custom,” or practice. In the United States, this doctrine has been stretched  to impose  public rights to private property, especially beachfront property. This talk will discuss recent attempts to expand the general public rights of custom to private property, and a recent attempt by Florida legislators to stop municipalities from creating purported customary rights via ordinance.


Lunch Roundtable: Other Emerging Issues in Constitutional Protection of Property

Abstract: Still in Exile? The Current Status of the Contract Clause

James W. Ely Jr., Milton R. Underwood Professor of Law, Emeritus, and Professor of History, Emeritus, Vanderbilt University

This essay examines the place of the once-potent contract clause in contemporary constitutional law. It analyzes the recent decision by the Supreme Court in Sveen v. Melin (2018), arguing that the justices demonstrated little interest in revitalizing the clause to afford meaningful protection to agreements in the face of retroactive state legislation. It then surveys contract clause litigation in the lower federal and state courts over the past few years, stressing that much of this litigation takes place at the state level. The essay notes that some state constitutions are construed to provide greater protection to agreements than the federal Constitution. It also briefly considers the most litigated contract clause claims today—disputes over steps to trim benefits for public-sector employees. The essay concludes by pointing out that the current balancing test for determining contract clause violations is inconsistent with both the text of the Constitution and the views of the framers, and should be reconsidered.  

Abstract: Emerging Property Rights Issues: The State Litigation Doctrine Near the Grave and Tax Foreclosure Takings

Christina M. Martin, Attorney, Pacific Legal Foundation, Palm Beach Gardens, Florida

On October 3, 2018, the Supreme Court heard oral argument in Knick v. Township of Scott, a case that may overturn the state litigation requirement arising from Williamson County Regional Plannin Commission v. Hamilton Bank of Johnson City. In Knick, a town decided that Rose Knick’s private farm contains a gravesite and imposed an easement for the public to visit the area during all daylight hours. When Ms. Knick filed her federal takings claim in federal court, her case was dismissed as unripe under Williamson County’s state litigation doctrine.  In granting Ms. Knick’s petition, the Court is poised to reconsider and potentially overturn or remake that doctrine.  This is an issue that could significantly improve access to courts and allow federal courts to have a more meaningful role in shaping takings jurisprudence.
Another property rights issue has emerged in Michigan and the Sixth Circuit. Michigan’s property tax law allows counties to foreclose on property to collect small tax deficiencies, and to then keep all the proceeds from the sale of that property, no matter how profitable.  Multiple takings claims challenging this tax foreclosure law have recently been working their way through state and federal court.

Abstract: Other Emerging Issues in Constitutional Protection of Property

Robert H. Thomas, Director, Damon Key Leong Kupchak Hastert; Joseph T. Waldo Visiting Chair in Property Rights Law at William & Mary Law School (Fall 2018)

The Constitution’s recognition of “property” is not limited to the Fifth Amendment’s proscription on the taking of “private property” for nonpublic uses. The Due Process Clauses of the Fifth and Fourteenth Amendments, for example, speak only of “property,” omitting the modifier “private” from the text. Mr. Thomas will highlight some of the recent trends in court decisions expanding (or not) the concept of property to include rights not traditionally though of as private rights, such as the right to a clean or pristine environment. He will also discuss another developing area, the concept of takings liability resulting from government inaction, which often arise in flood cases, and most notably in California’s wildfire liability cases.


Panel 3: Property and Social Justice

Abstract: Individual and Social Justice—Difference in Scope, Parallels in Structure

Carol M. Rose, Gordon Bradford Tweedy Professor of Law and Organization, Emerita, Yale Law School; and Ashby Lohse Professor of Water and Natural Resource Law, Emerita, University of Arizona Law College

Social justice is an ambiguous term. To tease out its meaning, this talk begins with claims for individual justice, arguing that these generally include three dominating issues: defining the entitlements at stake, avoiding escalation, and finding remedies. The talk then turns to social justice, dividing these claims into two major types: more traditional social justice claims attack a set of policies or practices that are said to result in unjust outcomes (for example racial restrictions in housing or discriminatory treatment of women); more recent and more controversial social justice claims add attacks on the outcomes themselves (for example unequal wealth distribution). With all these social justice claims, however, one finds the same three issues that dominate individual justice claims: defining entitlements, avoiding escalation, and finding remedies.

Abstract: Eminent Domain and Social Injustice in Puerto Rico

Luis Gallardo-Rivera, Co-director for the Center for Habitat Reconstruction, Puerto Rico

Puerto Rico spent much of the early 20th century under military control amidst extreme poverty, hunger, and sickness. The 1930s and 1940s ushered in an era of rapid economic growth and social mobility, including the usage and expansion of eminent domain powers to roll out new public utilities, housing, and social services. Nevertheless, during previous decades, those same powers have been utilized to condemn the private property of low-income citizens for economic development projects serving primarily high-income citizens. Private-to-private transfers of this type have now become Puerto Rico’s preferred method of development, with the government eliminating entire communities to make way for hotels, malls, and condominiums.


Panel 4: The Constitutionality of Land Use Exactions

Abstract: Whither Koontz?

John Echeverria, Professor of Law, Vermont Law School

I have written two articles critical of the Supreme Court’s Koontz decision.  See The Costs of Koontz, 39 Vt. L. Rev. 573 (2015); The Very Worst Takings Decision Ever?, 22 N.Y.U. Envtl. L.J. 1 (2014).  One of my criticisms of the decision was that it achieved an outcome that is arguably defensible from a policy perspective (why treat monetary exactions differently than traditional exactions?), but that is logically incoherent given the reasoning of Nollan and Dolan and the five-justice conclusion in Eastern Enterprises v. Apfel (which the Koontz Court purported to accept) that government impositions of financial liability are not takings.  Another criticism was that Justice Alito’s decision in Koontz appeared to presage a potential revival of the so-called “substantially advance” takings test, which a unanimous Supreme Court repudiated in its 2005 decision in Lingle v. Chevron USA, Inc.  In my talk at the conference, I will focus on this second criticism of Koontz, highlighting several recent lower court decisions that suggest my concern about a potential revival of the substantially advances test may not be misplaced.

Abstract: The Constitutionality of Legislatively Imposed Exactions

James S. Burling, Vice President for Litigation, Pacific Legal Foundation, Sacramento, California

Where once government was closely constrained to increase the freedom of individuals, now property ownership is closely constrained to increase the power of government. Where once government was a necessary evil because it protected private property, now private property is a necessary evil because it funds government programs. The ownership of property encompasses a variety of rights, including the right to possess, occupy, devise, sell, rent, and often most importantly, the right to use. As John Locke noted, we live in an organized society in order to better protect our property. In order to effect that state of affairs, citizens have entrusted their government with certain powers. The most relevant power for the purposes of this article, is the ability of government to regulate the use of private property in order to protect the larger community from nuisance-like impacts that would otherwise be caused by some particular uses of property. Thus government can prevent land uses that would otherwise cause flooding to neighbors, create noxious odors, or otherwise directly injure their neighbors. No compensation is due in such cases because the rights inherent in the ownership of property do not include the right to injure neighbors.

But the demands on modern government are many; and they include the demand by the people that government do far more with the regulation of property than simply prevent nuisances and similar palpable external harms. Thus we have Euclidean zoning that involves all manner of areal use restrictions, height restrictions, and density restrictions. We have aesthetic review boards. We have overlays for various endangered and not-so endangered species. We have riparian and other ecological setbacks. And we have wetlands and sensitive habitat zones, airport corridor restrictions, and a myriad of other status-quo maintaining land use restrictions. Suffice it to say, many of these land use restrictions go far beyond the mere prevention of traditionally understood nuisance-like impacts on neighbors and the community.

On top of that, democratically elected officials have a strong incentive to provide amenities to their voters, at as little cost in the way of new taxes as feasible. The public wants better roads, affordable housing for all, bigger parks, and prettier communities. The public wants to live in Eden and it wants someone else to pay the rent.

There is a perfect match made in an elected official’s heaven here: the public’s desire for free amenities married to the government’s ability to control land use. Permit seeking property owners can be forced to pay for many of the amenities desired by the public. But an official’s heaven can be land owner’s hell.

Unchecked, excessive regulations can destroy all use and value in property. That can result in a regulatory taking. Similarly, unchecked demands for exactions in place of permit-denying regulations can lead to a violation of the doctrine of unconstitutional conditions. Thus in the context of land-use, the doctrines of regulatory takings and unconstitutional conditions are inextricably intertwined. And to avoid a regulatory taking caused by a permit denial, government cannot simply substitute whatever set of exactions it desires. A town’s land use permitting department is not its ATM. There are constraints on the ability of government to demand exactions in exchange for land-use permits established in the doctrine of unconstitutional conditions.