Volume 7: The Future of Regulatory Takings

October 12–13, 2017

Board of Advisors and Journal Staff
Table of Contents

Fourteenth Annual Brigham-Kanner Prize Presentation Dinner Award Recipient Speech

David L. Callies

Each year, the Brigham-Kanner Prize is awarded to someone who has made significant contributions to our understanding of property and its role in our society, to someone who has thought deeply about property’s relationship to the human condition. Prior recipients have included some of our nation’s leading property scholars, a Supreme Court Justice, a very accomplished practitioner, and a Peruvian economist.

This year’s recipient, David Callies, is one of the most prolific scholars we have recognized. He began his scholarly career as a graduate student with a prophetic thesis on positive planning law in England, while he was getting his degree—his LL.M. degree—from the University of Nottingham in England. He then burst onto the American scene with the publication of The Quiet Revolution in Land Use Control, written with Fred Bosselman, for the U.S. Council on Environmental Quality. I remember noticing that publication when I first started teaching. He has subsequently revisited that text for a number of reasons. (read more)


Opening Remarks: the Future of Land Use Regulation

David L. Callies

I have spent a lot of time in the area of regulatory takings, almost accidentally. This, of course, is the odd sort of theory that Justice Holmes sprung on the legal world in Pennsylvania Coal Co. v. Mahon. Before that case, eminent domain and physical takings were protected by the Fifth Amendment and were never connected to the exercise of police power. And after that, the theory of regulatory takings was born. (read more)


Ruminations on Takings Law in Honor of David Callies

Michael M. Berger

Scholar? Lawyer? Teacher? Dave Callies has been—indeed, continues to be—all of these and more. With a career closing in on a half century, it is time the profession honored him for his contributions to property law—and particularly to land use and takings law. But what is there for one of us to say amidst this compendium of honorifics? He has educated us on so many aspects of these topics for so long that it is difficult to pin down a subject to write about that would do him justice. Just by way of illustration, consider that Callies was part of the team that produced two ground-breaking and highly influential books at the beginning of the modern takings era, under the auspices of the Council on Environmental Quality: The Quiet Revolution in Land Use Control in 1971 and The Taking Issue in 1973. From those early days (seen as dark days by those of us who generally represent property owners) when his interests appeared to be pointing toward restricting the rights of property owners, David’s scholarship has matured. (read more)


David Callies and the Future of Land Use Regulations

James W. Ely Jr.

It is a privilege to acknowledge the enormous contribution of David L. Callies to our understanding of property rights and land use regulations. He has long wrestled with the relationship between the rights of individual owners and the concerns of the community, and has given thoughtful attention to current environmental issues such as hydraulic fracking. Moreover, the range of his scholarship has been impressive and far-reaching. In addition to numerous legal articles, Callies has authored innovative books and remained active in bar association and law reform affairs. As I was preparing for the first edition of The Guardian of Every Other Right, I came across his 1988 article with the plaintive title “Property Rights: Are There Any Left?” This piece has always resonated with me, perhaps because it captured my mood at the time. Despite the then-recent Supreme Court decisions in Loretto and Nollan, Callies was skeptical that the Court had meaningfully checked the erosion of private property rights. But he bravely concluded:

Although we probably must regulate, it is worth taking care that in this period of critical examination of our constitutional values and protections, we do not lose by degrees what our founding fathers sought to protect in a more simple time and more rural place. There are many values enshrined in that Constitution. Lest we forget, private property is one of them. (read more)


Exactions and Impact Fees

Shelley Ross Saxer

I first met Professor David Callies at a land use conference at Chapman Law School, organized by Professor Craig “Tony” Arnold. As a relatively new law professor, I had switched to using David’s land use casebook for my class. I was delighted to meet one of the authors of the casebook I was using. Professor Callies was one of my legal “rock stars,” along with Professors Jesse Dukeminier, Carol Rose, Grant Nelson, Dale Whitman, Gideon Kanner, Holly Doremus, Joe Sax, Bob Ellickson, Richard Epstein, and others. I have since added more “rock stars” to my list, many of whom spoke at the Fourteenth Annual Brigham-Kanner Property Rights Conference. Because of all of those in attendance, and most of all because of David Callies, I was honored to be a part of the conference and journal publication. (read more)


Back to the Future of Land Use Regulation

Robert H. Thomas

As always, I bring you greetings from the land of Midkiff, the land of Kaiser Aetna, the jurisdiction in which the legislature thought it was a good idea to try and drive gasoline prices lower by adopting a rent-control statute for certain gas stations on the theory that the station owners would naturally pass on the savings to consumers. As you recall, the United States Supreme Court in Lingle held that this scheme should not be analyzed under the Just Compensation Clause, but under the Due Process Clause. The Court concluded that as a question of due process and government power, Hawaii’s scheme survived the rational basis test, even though in reality— and predictably—the statute did not come anywhere close to accomplishing what it purportedly set out to accomplish: Hawaii continues to have some of the highest gasoline prices in the nation, thank you very much. (read more)


A Brief Rebuttal from Callies

David L. Callies

I learned the hard way not to rebut early in my career, when I was opposite an assistant attorney for a city. He got a really “rough going” by the three-judge panel. What I should have done (and what I learned to do several years later in Hawai‘i) was get up, introduce myself, ask the court if they had any questions, and then sit down. I didn’t do that. I decided to guild the lily, and the result was that the judges took pity on my opponent. They really dragged me over the coals for thirty-five minutes for so obviously winning, and then getting up there and making things worse. I’m not going to do that, except to say I agree with everything that was said. (read more)


Water and Property Rights in an Era of Hydroclimate Instability

Robert Haskell Abrams

Playing off a famous and provocative 1966 cover story from Time Magazine that asked “Is God Dead?” a group of scientists proclaimed in 2008 in Science Magazine that “Stationarity is Dead.” They uttered that phrase as it pertains to water infrastructure planning and management. Their point was that anthropogenic changes in climate had already rendered invalid the assumptions regarding the extremes in water shortage and abundance on which America’s water projects had been based. The events of the last decade have proved their thesis. Climate extremes are now far greater than those that generations of water experts had planned for—more frequent and extended droughts, more intense rainfall events and floods—with the consequence that a new paradigm of water planning and management is needed. (read more)


Muddying the Waters: Sixty-one Years of Doctrinal Uncertainty in Montana Water Law

Eric Alston & John Stafford

The development of water law in the western United States is an important case study of the refinement and abrogation of the common law in the face of existing practices and their comparative suitability to the unique climactic and institutional conditions in the arid West. Just as climate and industrial demands from agriculture and mining defined institutions in a bottom-up fashion along the western frontier, federal land policy also influenced the definition of institutions in a top-down fashion. We show how, in the context of Montana, the courts played an important role in the process of transitioning the state from an informal to a formal legal system, balancing the tensions created by conflicting statutory and case precedents, as well as by predominant industrial and agricultural uses of water along the frontier. (read more)


Murr and Merger

Stuart Banner

In Murr v. Wisconsin, the Supreme Court finally answered the “denominator” question that had been lurking beneath Takings Clause jurisprudence for decades. The Court’s answer was a multifactor test that, although nominally a middle position between the two extremes offered by the litigants, is in practice likely to be a big win for regulators. Under this test, conventional forms of land use regulation that affect owners of multiple, contiguous lots, in ordinary circumstances, are unlikely to be deemed regulatory takings, even if the regulation has severe effects on one of those lots. (read more)


Property Rights and Takings Burdens

Steven J. Eagle

The Fifth Amendment Takings Clause was interpreted through the nineteenth century as referring only to physical takings or ousters of possession. Justice Holmes’s enigmatic 1922 opinion in Pennsylvania Coal Co. v. Mahon was the genesis of the contemporary “regulatory takings” doctrine, which reached full expression in 1978 in Penn Central Transportation Co. v. City of New York. The ad hoc, three-factor test of Penn Central, generally deemed incoherent and chaotic, focused on regulatory burdens placed upon landowners, not with respect to specific rights but rather with regard to a specified relevant parcel (“parcel as a whole”). In 2017, in Murr v. Wisconsin, the Court conflated the elements of what constitutes the relevant parcel and the three factors pertaining to whether that parcel had been taken. (read more)