property rights

The Illusions of Takings Law

Nothing is as it seems, when the issue is whether a regulation is a “taking” of property.

For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn …

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Supreme Court Finds California Labor Access Regulation Works Unconstitutional Taking of Private Property

What Are the Implications of the Cedar Point Nursery Decision for Environmental, Natural Resources & Public Health Programs?

In a closely-watched property rights decision, the U.S. Supreme Court today held unconstitutional a longstanding California regulation allowing labor unions intermittent access to agricultural workplaces for labor organizing purposes.  Reversing a decision of the Ninth Circuit Court of Appeals, a 6-3 Supreme Court majority ruled that the challenged regulation triggers a per se, compensable government “taking” …

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A Preview: Major Property Rights Case Currently Before U.S. Supreme Court

Decision in Cedar Point Nursery Could Imperil Key Health, Safety & Environmental Programs

On Monday, the U.S. Supreme Court will hear oral arguments in a major property rights case from California: Cedar Point Nursery v. Hassid.  That litigation arises in a labor law context.  But, depending on how the Court rules, the case could have major, deleterious impacts on a wide array of health, safety and environmental programs. …

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Mine! How the Hidden Rules of Ownership Control Our Lives

Mine! Book Cover

New book explores the hidden rules governing who gets what and why

For the last six years, Michael Heller and I have been writing Mine! How the Hidden Rules of Ownership Control Our Lives. It comes out today! We wrote the Doubleday book because we think everyone should have access to the handful of simple insights that can make us more effective advocates for change as consumers, …

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Implementing the “Biden Environmental Litigation Bounce-Back”

Encouraging Signals As To How Biden’s USDOJ Will Resolve Environmental Lawsuits Originally Brought Against the Trump Administration

The transition from the Trump Administration to the Biden Administration makes for fascinating spectator sport.  President Biden’s first month in office reveals that he and his Administration are committed to undoing the widespread damage former President Trump and his minions engineered across so many policy and legal areas.  The environment is a particularly prominent example. …

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On This Date in History: Property Rights Won Big in the Supreme Court

June 29, 1992 was a great day for property rights advocates. But what came later wasn’t so good.

On this date in 1992, the property rights movement achieved its greatest victory in the form of the Supreme Court’s Lucas ruling. The campaign to protect property rights seemed to have huge momentum.  But things didn’t work out that way. For property rights advocates, Lucas turned out to be a false dawn. Mr. Lucas owned …

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Animal, vegetable or mineral?

A lesson in judicial humility and a thought experiment about property rights

This topic may be a bit far afield for this blog, but dinosaurs are always worth considering . . . The Montana Supreme Court has resolved an intriguing dispute about ownership of fossilized dinosaur remains that turned on the question of whether those remains were or were not “minerals.” In the process, the Montana court …

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Is Saving Lives Unconstitutional?  A Response to John Yoo

Takings law is complicated, but the answer to this question is clear. The answer is no.

Like others on the extreme right, the Hoover Institution is campaigning against “stay at home” orders because they cost too much money.  Regrettably, the most recent argument to this effect on their website is by my colleague John Yoo.  He argues that the Constitution requires states to compensate business owners for their losses. That’s simply …

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Supreme Court Takes a Knick Out of Regulatory Takings Law

Justices Curb Ripeness Rule; Open Federal Courts to Takings Litigation

  In the final, major environmental law decision of its current Term, the U.S. Supreme Court handed property rights advocates a major victory while repudiating an important regulatory takings precedent the Court had itself fashioned and announced 34 years ago. The case is Knick v. Township of Scott.  By a narrow 5-4 vote that split …

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Contentious California Beach Access Case Heads to U.S. Supreme Court

Longstanding Martins Beach Controversy May Well Capture Justices’ Attention

The U.S. Supreme Court’s 2018-19 Term is already shaping up as a big one for environmental law in general and the longstanding tension between private property rights and environmental regulation in particular.  The Court has already agreed to hear and decide two cases next Term raising the latter set of issues: one involves the question …

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