Volume 9: The State of Regulatory Takings

Oct. 3-4, 2019

Board of Advisors and Journal Staff

Table of Contents

Sixteenth Annual Brigham-Kanner Prize Presentation Dinner Award Recipient Speech

Steven J. Eagle

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 has thought deeply about property’s relationship to the human condition and about the importance of property rights to political, economic, and social systems.

Prior recipients have included some of the nation’s leading property scholars, a Supreme Court Justice, a leading practitioner, and a Peruvian economist. This year’s recipient, Steven J. Eagle, is one of the most committed property rights scholars we have recognized. By “committed,” I mean his prolificacy as a writer and his willingness to tackle property rights issues totally and completely, no matter how difficult the issue or muddy the field. Steve’s numerous publications address such topics as environmental regulation, affordable housing, other tough land use issues, telecommunication and energy siting matters, and of course every aspect of regulatory takings. (read more).

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Opening Remarks: The State of Regulatory Takings Jurisprudence - A Tribute to Eagle


Steven J. Eagle, Professor Emeritus of Law, Antonin Scalia Law School at George Mason University

Lynda L. Butler, Chancellor Professor of Law and Director, Property Rights Project, William & Mary Law School (Read more).

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The Eagle Theory

Thomas W. Merrill 

This Article evaluates three interpretations of the Takings Clause capable of generating a regulatory takings doctrine. The first, the Epstein interpretation, puts primary emphasis on what it means to provide “just compensation” for takings; the second, the Penn Central interpretation, centers on what it means to “take” property; the third, which I call the Eagle theory, in honor of Steven Eagle, this year’s Brigham-Kanner prize recipient, focuses on when the govern- ment has taken “private property.” The Article argues that the Eagle theory has the most plausible basis in the original understanding of the Takings Clause, rests on a theory about the Clause that enjoys broad contemporary support, and is the most capable of generating predictable outcomes at a reasonable cost. The primary drawback of the Eagle theory is that it cannot serve as a general source of protection for property rights against arbitrary or oppressive government action. If adopted as the basis for the regulatory takings doctrine, therefore, the Eagle theory would have to be supplemented with a second source of constitutional protection for property, such as substantive due process. This, as it happens, is precisely what Steven Eagle has urged. (read more).

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Steven Eagle and the Future of Regulatory Takings
David Callies and Casey Hutnick


Steven Eagle’s contributions to the law of regulatory takings are legion. Not only is he the author of the definitive treatise on regulatory takings, but he has delivered speeches and written articles on various aspects of the subject for the past 20 years. A few years back I rashly made a few random predictions about the future of regulatory takings and repeated them two years ago at this conference. Eagle, has, of course, written or spoken about all of them. What follows is a more complete investigation of these predictions, what Steven Eagle has said about them, and what’s happened since. (read more).


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Is the Doctrine of Regulatory Takings Constitutional?
James Burling


 Not everyone is a fan of the doctrine of regulatory takings. After all, when government seeks to advance the public good by limiting what owners can do with their property, everyone is supposed to benefit, albeit some more than others. But if government must pay property owners for the impacts that regulations have on private property, then regulation can become expensive and even unaffordable. That is one reason why government regulators resist landowner demands for compensation. When the cost of land-use regulation is borne not by those property owners whose land is regulated, but instead by the regulating community, then there will be less regulation. Thus, the pushback from the advocates of regulation. (read more).

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The Ecology of the Common Law

Henry Smith

The common law and the environment appear to have had a fall- ing out. Legal realists and their environmentalist successors see the complexity of environmental problems involving ecosystems as out- stripping the abilities of traditional common law to handle them. Ironically, it is complexity in the very sense invoked by realism and environmentalism—pervasive interconnection—that goes a long way to explaining and justifying the common law in general and property rights in particular. Property law and institutions are a dynamic modular system that can handle a range of complex problems well, and that breaks down or runs out in characteristic ways. Private law is a hybrid of spontaneous and directed order, and it coevolves with society’s institutions, its culture, the economy, and the natural environment itself. While no panacea, the common law should not be sold short: it is an attractive system for many of the very reasons for which it is most often dismissed. (read more).

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The Controversy Over Energy Takings: A Tale of Pipelines and Eminent Domain

James W. Ely Jr.

Pipelines are certainly in the news. The prolonged dispute, and accompanying litigation, over the proposed Keystone XL oil pipeline from Canada is only the most visible tip of the iceberg. In New York in May of 2019 Governor Andrew Cuomo rejected a project for a natural gas pipeline linking New York City with shale gas fields in Pennsylvania. Nor is the controversy confined to the United States, as both Canada and Mexico have experienced sharp conflicts over pipeline construction. It seems apparent that much of the opposition to pipelines is grounded on broad environmental arguments and not the niceties of eminent domain law. (read more).

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The Roles of State and Federal Law in Energy Condemnations

Stewart E. Sterk

When an energy provider condemns fee interests or easements to permit construction of transmission lines, what roles do state and federal law play in determining the “just compensation” available to affected landowners? That question has arisen in a number of differ- ent factual contexts. Usually, condemnors seek to avoid state law rules that provide for compensation beyond what they believe represents the market value of the property they seek to acquire. For instance, condemnors may seek an offset for benefits the condemnation gener- ates for neighboring land owned by the condemnee. Condemnors may also seek to avoid state rules that entitle condemnees to attorney’s fees associated with challenging the condemnor’s valuation of the property or the condemnation itself—or condemnors may seek application of federal evidentiary rules rather than the evidentiary rules the state would apply. (read more).

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In Search of Affordable Housing: How Deregulatory Strategies Fail the Poor

Laura Underkuffler

There is little doubt that there is a severe housing crisis in the United States. Commentator after commentator has decried the nationwide shortage of housing for those of limited financial means. As the result of the Great Recession of 2007–2009, approximately 8.4 million jobs were lost. This, combined with the subprime mort- gage crisis, swelled the ranks of low-income renters by millions of people at a time when housing that they could afford was already scarce. The number of households paying more than 30% of gross in- come for rent rose by 3.6 million from 2008 to 2014, to a total of 21.3 million households. The number of those with severe burdens — paying more than 50% of gross income for rent — jumped by 2.1 million to a record 11.4 million households. (read more).

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Takings as Compulsory Purchase of Commerical Units

Steven J. Eagle

This Article examines recent Supreme Court decisions regarding private property and eminent domain vis-à-vis growing demands for government controls over land use, especially to ameliorate climate change and to reduce regional economic disparities. It notes that ten- sion between the Court’s amorphous regulatory takings jurisprudence and assertive regulation will increase, a trend likely to be heightened after Knick v Township of Scott. Its contribution is the assertion that the current judicial regulatory takings apparatus be replaced with the doctrine that, if owners can demonstrate that the property arro- gated by government consists of a “commercial unit,” then the matter should be deemed a compulsory purchase, and just compensation paid. Of course, borderline and unusual circumstances dictate some continued reliance on substantive due process, which already plays a crucial, if unacknowledged, role in contemporary regulatory takings doctrine. (read more).

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