The climate crisis is unprecedented. So is its legal fallout.
In teaching my class on Climate Law, I’ve been struck by how many new legal questions courts are confronting as a result of the climate crisis. Dealing with these new legal questions is going to put stress on existing legal doctrines and require courts to rethink some basic principles. Unfortunately, the Supreme Court is pushing …CONTINUE READING
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 …CONTINUE READING
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” …CONTINUE READING
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. …CONTINUE READING
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, …CONTINUE READING
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. …CONTINUE READING
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 …CONTINUE READING
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 …CONTINUE READING
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 …CONTINUE READING
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 …CONTINUE READING