Volume 8: The Federalism Dimension of Constitutional Property

October 4–5, 2018

Board of Advisors and Journal Staff
Table of Contents

Fifteenth Annual Brigham-Kanner Prize Presentation Dinner Award Recipient Speech

Stewart E. Sterk

Each year, the Brigham-Kanner Prize is awarded to someone who has made significant contributions to our understanding of property and its role in society. The prize is awarded to someone who is thought deeply about property’s relation to the human condition and about the importance of property rights to our political, economic, and social systems. Prior recipients have included some of the nation’s leading property scholars, a Supreme Court Justice, a highly regarded practitioner, and a world-renowned Peruvian economist.
This year’s recipient, Stewart Sterk, is one of the most complete scholars we have recognized. By complete I mean that he has approached the field of property totally and comprehensively. He has taught and wrote about almost every key aspect of property as an institution. General areas of his expertise include land use  regulation, property, trusts and estates, real estate transactions, and intellectual property. His numerous publications address such topics as takings, inheritance, the moral obligations of land owners, zoning finality,
servitudes, property and copyright, minority protection in residential private governments, and exactions, just to name a few. A member of the American Law Institute, Stew also has co-authored casebooks on land use regulation and on trusts and estates.
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Opening Remarks: The Federalism Dimension of Constitutional Property

Stewart E. Sterk

Thanks so much, Lynda, and I’m glad to be the excuse for such an esteemed gathering of property lawyers.

I think what we’ll be talking about today, at least this morning, is the respective roles of state and federal law, especially in takings jurisprudence. The issue is of substantive importance in a variety of takings cases. If you think about Murr v. Wisconsin, which the Supreme Court recently decided, it is an obvious example of where the Court rejected the notion that state law should furnish the denominator in takings cases. But I would argue that aside from the substantive issues, the relative importance of state and federal law also plays a role in issues like the wisdom of the Williamson County case. To the extent that you think that state law plays a heavy role in takings law, Williamson County makes a lot more sense than if you think state law plays a relatively unimportant role in takings jurisprudence.
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What’s Federalism Got to Do with Regulatory Takings?

Michael M. Berger

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 rights, 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 state 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 that “checkered” conclusion is vastly understated (at least as it applies to California). The idea of handing over complete control of constitutional protection to the tender mercies of courts that can thumb their judicial noses at the U.S. Supreme Court as easily as California has makes my blood run cold. And why should other states not jump on the California band-wagon (as California continuously shows what it can get away with), even though they may be more rational now? As if to prove my point, Professor Sterk has opined that, after the Supreme Court decided First English Evangelical Lutheran Church v. County of Los Angeles—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)


Choice of Law in Takings Cases

Thomas W. Merrill

This Article considers what law should apply in resolving subsidiary questions that arise in the course of deciding takings cases under federal constitutional law. 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 article 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 the wholesale federalization of the issue in this context was misguided. A better solution would be to adopt a federal-patterning definition of “parcel,” which would largely resolve the issue by looking to applicable state law unless affirmative evidence shows that parcel boundaries have been manipulated to manufacture a takings claim. (read more)


The Public Trust Doctrine

David L. Callies

Government ownership of land has always carried with it a series of public obligations that collectively limit the use of such land (usually for public rather than commercial or other private-like purposes) as well as its transfer or disposal. Thus, if a government holds or acquires a parcel of land, it may, for example, broadly use it for park, recreation, or government-administrative functions (such as postal services, fire and police stations, and other government offices). Also, broadly speaking, a government may sell or lease such land if it is found to be surplus, and typically it will be subject to no more than a disposal statute or regulation, which may require a public auction or other generalized offer to potential buyers or lessees. An exception is land which the government formally holds in trust for the public, subject to the public trust doctrine. (read more)


Still in Exile? The Current Status of the Contract Clause

James W. Ely, Jr.

The Contract Clause is no longer the subject of much judicial solicitude or academic interest. Since the 1930s the once potent Contract Clause has been largely relegated to the outer reaches of constitutional law. This, of course, was not always the case. On the contrary, throughout the nineteenth century the Contract Clause was one of the most litigated provisions of the Constitution. In 1896, Justice George Shiras astutely commented: “No provision of the constitution of the United States has received more frequent consideration by this court than that which provides that no state shall pass any law impairing the obligation of contracts.” A brief survey of the evolution of contract clause jurisprudence helps to put into perspective the current desuetude of the Clause. (read more)


Emerging Issues in Property Law

Robert H. Thomas

I am a property lawyer, which means I am a civil rights lawyer and a human rights lawyer. I say this because, as we all know, private property is a civil right—and most importantly for today’s discussion—a federal constitutional right. This is the context that frames the subject of my portion of the panel at the Fifteenth Annual Brigham-Kanner Property Rights Conference about emerging issues in property law. (read more)


Natural Gas Pipeline Easements: An Overview of the Takings Jurisprudence Associated with the Acquisition of a Lineal Corridor When the Condemnor Is a Private Licensee of the Eminent Domain Power Under the Natural Gas Act

Andrew Prince Brigham

Although the eminent domain power is an attribute of the sovereign, there are instances in which a private licensee is delegated the power for the acquisition of easements necessary to establish a lineal corridor. For the purposes of this article, our examination of the jurisprudence associated with the acquisition of lineal corridor rights takes place in the “laboratory” of the federal district courts in Florida. For it is there that a new interstate pipeline project, known as the Sabal Trail Natural Gas Pipeline, resulted in the filing of approximately 263 condemnation cases for a lineal corridor of some 247 miles needed to construct a thirty-six-inch-diameter pipeline capable of transmitting up to one billion cubic feet of natural gas a day. (read more)


The Constitutionality of Legislatively Imposed Exactions

James S. Burling

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, most importantly, the right to use. As John Locke explained, we live in an organized society in order to better protect our property. In order to effect an ordered and prosperous 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 particular uses of property. Thus, government can prevent land uses that would otherwise cause flooding to neighbors, create noxious odors, or directly injure others. No takings-related just compensation is due in such cases because the rights inherent in the ownership of property do not include the right to injure neighbors. However, the right to restrict nuisances does not give government carte blanche to define nuisances out of whole cloth: “Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.” Despite these limitations, government’s power to freely regulate land use to prevent nuisances is broad. And, indeed, governments have generously interpreted the power to regulate land use well beyond the traditional understandings of nuisances. (read more)


Property Rights: Foundation for a Free Society

W. Taylor Reveley, III

Friends, let’s think back to September 1787. Our country’s Constitutional Convention was nearing its end in Philadelphia when a formidable woman encountered Benjamin Franklin, a delegate to the Convention. She braced him with this question: “Well[,] Doctor[,] what have we got[,] a republic or a monarchy[?]” The wise, old, battle-tested Franklin replied simply: “A republic . . . if you can keep it.”

So, friends, we have a republic if we can keep it. We have a free society if we can keep it. (read more)