More Questions Than Answers: Situating Judicial Takings Within Existing Regulatory Takings Doctrine

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a four-member plurality of the Supreme Court endorsed the idea that certain judicial action, as well as action by other branches of government, might effect a taking of private property. In explaining its theory of judicial takings, however, the plurality did little to explain how such takings fit within the larger doctrinal and analytical framework for regulatory takings. This Essay evaluates whether the plurality’s discussion of judicial takings is consistent with the preexisting takings framework and how it might impact takings cases in the future. Ultimately, the plurality’s discussion of judicial takings raises more questions than answers and backtracks on the promises of clarity made in the Court’s most recent prior takings decision

The World of Deadwood: Property Rights and the Search for Human Identity

The year is 1876. Gold has been discovered in the fledgling camp of Deadwood, bringing hordes of new arrivals each day seeking to strike it rich. The allure of wealth is coupled with the allure of complete autonomy. There is no law. Although part of the United States, Deadwood is unaffiliated with any existing territorial government. It is free. Or is it? From this backdrop, HBO’s highly-acclaimed drama Deadwood springs forth. Series creator David Milch is frank about his mission behind the story: to explore how order arises from chaos. The assignment and protection of property rights play central roles in this journey from anarchy to law. In the world of Deadwood, where ownership of land can be worth millions, law’s promise and law’s pitfalls are both on full display. The stakes are high; the lessons are many. Stories are powerful teaching tools because they marry information and context. Film and television also supply a picture of law in action, marshalling the power of the visual to make law more real, less abstract. Because of its rich complexity and invocation of ancient debates over what property is and who rightly can be deemed to own it, the three-season run of Deadwood provides fertile ground for this type of interdisciplinary study. Deadwood demonstrates that the interrelationship between property and law is complex, with many moving pieces and many valid points and counterpoints. Property has both naturalist and positivist attributes, it both pre-exists and coexists with the state, it is about economic power and personal identity, it supports both an individualist and communitarian mindset. Accounting for all of these strands in a balanced way is a lot to ask of legal institutions, especially inasmuch as the strands often are in competition with one another. Deadwood suggests that, while law is certainly a component piece in the puzzle of human relations, it alone cannot do all that we ask of it. And therein may lie the ultimate lesson: Law can be a blessing, but the human condition requires more

Public Utilities, Eminent Domain, and Local Land Use Regulations: Has Texas Found the Proper Balance?

Using Texas as a case study, this article reviews the relevant Texas law on the subject and (expanding on the reasoning employed by the recent federal decision) argues that Texas law in fact provides a constructive balance between a utility\u27s interests and those of the local government. Moreover, the balanced approach established by the Texas cases provides a model for other jurisdictions due to the incentives it provides for bargaining between the utility company, the local government, and community leaders

The World of Deadwood: Property Rights and the Search for Human Identity

The year is 1876. Gold has been discovered in the fledgling camp of Deadwood, bringing hordes of new arrivals each day seeking to strike it rich. The allure of wealth is coupled with the allure of complete autonomy. There is no law. Although part of the United States, Deadwood is unaffiliated with any existing territorial government. It is free. Or is it? From this backdrop, HBO’s highly-acclaimed drama Deadwood springs forth. Series creator David Milch is frank about his mission behind the story: to explore how order arises from chaos. The assignment and protection of property rights play central roles in this journey from anarchy to law. In the world of Deadwood, where ownership of land can be worth millions, law’s promise and law’s pitfalls are both on full display. The stakes are high; the lessons are many. Stories are powerful teaching tools because they marry information and context. Film and television also supply a picture of law in action, marshalling the power of the visual to make law more real, less abstract. Because of its rich complexity and invocation of ancient debates over what property is and who rightly can be deemed to own it, the three-season run of Deadwood provides fertile ground for this type of interdisciplinary study. Deadwood demonstrates that the interrelationship between property and law is complex, with many moving pieces and many valid points and counterpoints. Property has both naturalist and positivist attributes, it both pre-exists and coexists with the state, it is about economic power and personal identity, it supports both an individualist and communitarian mindset. Accounting for all of these strands in a balanced way is a lot to ask of legal institutions, especially inasmuch as the strands often are in competition with one another. Deadwood suggests that, while law is certainly a component piece in the puzzle of human relations, it alone cannot do all that we ask of it. And therein may lie the ultimate lesson: Law can be a blessing, but the human condition requires more

From “Preferred Position” to “Poor Relation:” History, Wilkie v. Robbins, and the Status of Property Rights Under the Takings Clause

This article discusses the status of constitutional property rights in light of the Supreme Court’s 2007 decision in Wilkie v. Robbins. In Wilkie, the Court rejected a property owner’s claim that he had been retaliated against by federal officials for exercising his right to resist an uncompensated taking of his property, notwithstanding its prior precedents recognizing similar claims in the context of other constitutional rights. This article suggests that Wilkie reveals an attitude among the Justices that property rights are less worthy of judicial protection than other rights guaranteed by the Constitution. Moreover, the article contrasts this attitude with that of the early American legal culture, which gave property rights the preferred position among constitutional liberties and viewed the judiciary as a bulwark against the encroachment of those rights by the political branches of government. The article concludes by noting the importance this change in judicial attitude may have for constitutional rights generally. If rights as central to early constitutional understandings as those relating to property can be relegated based on shifting judicial preferences, then other rights would appear equally vulnerable