The \u3ci\u3eArmstrong\u3c/i\u3e Principle, the Narratives of Takings, and Compensation Statutes

The Takings Clause of the Fifth Amendment is famous for inspiring disagreement. More than one hundred years have passed since the Supreme Court departed from the original understanding of the clause and interpreted regulations as potentially falling within its ambit. Although the passage of time has established the principle that regulations can run afoul of the Takings Clause, the Court has been unable to offer a coherent vision of when compensation is required. Academic commentators also have failed to reach agreement on the issue, offering an enormous range of solutions to the takings question. The newest field of controversy involves compensation statutes. In a few short years, the property rights movement\u27s demand that both state and national legislatures provide compensation when government regulations diminish property value has won widespread support, which, since 1994, has begun to translate into legislative success. The Contract with America provides that property owners [are] to receive compensation . . . for any reduction in the value of their property greater than ten percent. Shortly after the 104th Session of the House of Representatives began, its members passed an act requiring compensation when certain regulations decreased the value of land by more than twenty percent. Five state legislatures have passed statutes directing that property owners be paid for losses that they suffer as the result of governmental regulations. The success of the property rights movement, however, has provoked a powerful response. Academic criticism has been sharp, and political opposition has been intense. Property rights legislation already has been repealed by referendum in Washington State and rejected in an Arizona referendum. President Clinton has threatened to veto any federal property rights bill. Opponents of compensation statutes accurately have seen in both the proposed and enacted statutes a direct threat to the continued existence of the regulatory state: by requiring compensation for regulations these statutes will make the imposition of many regulations too costly. Given the extraordinary diversity of opinion about when compensation is owed, it would be only natural to expect that an equal lack of agreement would exist about what purpose the Takings Clause serves. The reality, however, directly contradicts that expectation. Justice Black crisply stated his view of the purpose of the Takings Clause in Armstrong v. United States: The Takings Clause is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. Justice Black\u27s view has received a remarkable degree of assent across the spectrum of opinion. The Armstrong principle has become, according to Professor Glynn Lunney, a part of the ritual litany employed in takings decisions. The principle has been embraced repeatedly by Chief Justice Rehnquist and by Justice Scalia, the judicial champions of a broad reading of the Takings Clause as well as Florida\u27s compensation statute. It is contained specifically in the text of, and invoked in support of, various property rights proposals recently introduced in the Senate. The champions of a narrow reading of the clause, Justices Brennan, Blackmun, Marshall, and Stevens have espoused the Armstrong principle with equal fervor

Introduction: Global Intellectual Property Rights: Boundaries of Access and Enforcement

Introduction to the Global Intellectual Property Rights: Boundaries of Access and Enforcement Symposium. The Intellectual Property, Media & Entertainment Law Journal put together a symposium that focused on three issues in intellectual property: patents, The End of Equivalents? Examining the Fallout from Festo; Eldred, a case argued before the Supreme Court; and the relationship between the First Amendment and Internet filters

Jam for Justice Holmes: Reassessing the Significance of \u3ci\u3eMahon\u3c/i\u3e

When courts and commentators discuss Pennsylvania Coal Co. v. Mahon, they use the same word with remarkable regularity: famous. Mahon has achieved this fame in part because it was the occasion for conflict between judicial giants, and because the result seems ironic. Justice Oliver Wendell Holmes, Jr.--the great Lochner dissenter and a jurist generally considered a champion of judicial deference to legislatures in the sphere of economic decision-making--wrote the opinion striking down a Pennsylvania statute barring coal mining that could cause the surface to cave-in. Sharply dissenting from Holmes\u27s opinion was his consistent ally on the Court, Justice Louis Brandeis. The Mahon decision is also famous because it has become a virtual surrogate for the original understanding of the Takings Clause. Even though it is generally accepted that the Takings Clause was originally understood to apply only to physical seizures of property, the case law has now firmly established that it applies to government regulations as well. Mahon has satisfied the need of the law has grown, so has the amount of attention paid to this always prominent case. Part I of this article briefly presents the opinions in Mahon. Part II summarizes the competing schools of thought on the case\u27s place in takings history and the test Holmes employed, and discusses the general consensus that Mahon is a case protective of property rights. Part III presents the groundwork for an alternative account by reviewing the pre-Mahon case law (other than Holmes\u27s decisions), highlighting the generally overlooked cases involving regulation of businesses affected with a public interest. Part IV analyzes Holmes\u27s decisions prior to Mahon and argues that those decisions reflect a constitutional property jurisprudence that was both internally coherent and at odds with the era\u27s Supreme Court case law. Part V then shows how Mahon reflects Holmes\u27s unique and deeply innovative acceptance of deferential balancing. Finally, part VI discusses why Mahon has become so central to our takings jurisprudence and examines how a proper understanding of Holmes\u27s views would sharply alter current case law

Introduction: The Fifth Annual A.A. Sommer, Jr. Lecture on Corporate, Securities & Financial Law

Welcome and Introduction to the Fifth Annual A. A. Sommer, Jr. Lecture on Corporate, Securities & Financial Law, November 9, 2004 at Fordham University School of Law. Fordham Law School, with the support of Morgan, Lewis & Bockius, inaugurated the A. A. Sommer, Jr. Lecture Series in the fall of 2000 with the timely insights of the Securities and Exchange Commission\u27s (the SEC or the Commission ) then-Chair Arthur Leavitt. Since then, the Sommer Lecture has continued to bring to Fordham such heavyweights as Mary Schapiro, President of National Association of Securities Dealers ( NASD ) Regulation, Inc., SEC Commissioner Harvey Goldschmid, and last year William McDonough of the Public Company Accounting Oversight Board

Supreme Neglect of Text and History

This article reviews Supreme Neglect: How to Revive Constitutional Protection for Private Property by Richard A. Epstein (2008). In Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the clause nor original understanding support Epstein\u27s broad doctrine of regulatory takings. Indeed, both text and the early history of the clause indicate that the clause did not apply to regulations at all; it applied only to physical seizures by the government- situations where the government physically take[s] property by, for example, building a road or a school on it

Legal Obligations: The Proper Role of White House Lawyers

An opinion issued on Aug. 1, 2002, by Assistant Attorney General Jay S. Bybee of the Department of Justice’s Office of Legal Counsel held that the federal statute that makes it a crime to commit torture outside the United States should not be read to “apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.” The opinion further concluded that if the statute did criminalize interrogations ordered by the president, it was unconstitutional. The memorandum, which has become known as the “torture memo,” figures prominently in the ongoing public debate about whether there should be prosecutions of Department of Justice officials or a truth commission to investigate the treatment of detainees by U.S. officials. But as important as the memorandum is to any consideration of the past, it is at least as relevant to any consideration of how to ensure that in the future, the Department of Justice and the executive branch as a whole honor the rule of law and the U.S. Constitution

Keynote Address: 14th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations

Keynote address to the 14th Annual Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations, November 18, 2011 at Georgetown University Law School. This conference explores the regulatory takings issue as it relates to land use and environmental regulation. The conference brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues raised by recent decisions and pending court cases. Some of the topics to be discussed include takings claims generated by major flooding events in the Mississippi River, including Hurricane Katrina and the Mississippi floods of 2011, the takings issues raised by the threat of climate change, the tension between traditional notions of public rights in water resources and modern takings cases arising from regulation of water uses, questions about the proper application of Penn Central, and the problem of so-called “unsuccessful exactions.

Introduction to Keynote Address: A Community of Reason and Rights

Introduction to the Keynote Address: A Community of Reason and Rights, delivered on October 4, 2007 at Fordham University School of Law

Takings Law and the Regulatory State: A Response to R.S. Radford

In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford provided an illuminating review of Dennis Coyle\u27s book Property Rights and the Constitution. Radford observes that, in addition to studying post-New Deal land use cases, Coyle provides an ideological framework that illuminates several key strands in the constitutional jurisprudence of property law ... [and] sets forth his own theories of the vital role of private property in creating and maintaining the American constitutional system. Radford\u27s review is a generally enthusiastic one. He sees Coyle\u27s book as providing a much-needed corrective to the existing pro-regulatory bias in the [scholarly] literature. He applauds Coyle, as well, for enriching our understanding of the competing preference systems that lead to different views about the legitimacy of land use regulation. Underlying Radford\u27s review is the idea that property rights deserve greater constitutional protection than they have received in the almost sixty years since the Supreme Court accepted the fundamental legitimacy of the regulatory state. Radford\u27s position in this regard is not novel, but reflects broader trends in the courts and in the academy. In particular, Professor Richard Epstein of the University of Chicago has argued that the Fifth Amendment\u27s Takings Clause should be interpreted to bar government actions with redistributive consequences-to bar, in other words, the modern regulatory state. At the same time, in a series of recent cases involving land use and the Takings Clause, the Supreme Court has expanded the scope of the Takings Clause, although its holdings have been narrower in scope than Epstein\u27s view would warrant. In this response, the author uses Radford\u27s review to talk about property rights and the Constitution. First, he reviews Radford\u27s interpretation and criticism of Coyle\u27s theory. Then the author discusses Radford\u27s Culture X theory in the context of Lucas v. South Carolina Coastal Council. Finally, he discusses the constitutional implications of Radford\u27s analysis