Earning Deference: Reflections on the Merger of Environmental and Land-Use Law

Professor Wolf suggests that there is a brooding omnipresence over local government efforts to protect the environment; that omnipresence is the idea of regulatory takings. Professor Wolf emphasizes that local governments need to earn deference. Since the decision in Village of Euclid v. Ambler Realty Co., local governments have been acting in a Euclidean zone of comfort when implementing traditional land-use regulations. However, he suggests that local governments may be acting outsides of that zone when they enact environmental regulations and that there is a rich history of negative decisions concerning local environmental regulations. Professor Wolf then offers three strategies that local governments can employ to bring their environmental regulations within the shelter of Euclidean deference

Looking Backward: Richard Epstein Ponders the “Progressive” Peril

In How Progressives Rewrote the Constitution, Richard Epstein bemoans the growth of a dominant big government. How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. For the rest of us, significant gaps will still remain between, on the one hand, our understanding of the nation’s past and of the complex nature of constitutional lawmaking and, on the other, Epstein’s version of the nature of twentieth-century reform and Progressive jurisprudence

A Reign of Error: Property Rights and Stare Decisis

Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases and other law and law-related sources; explores why the phenomenon of reproducing mistakes matters in a legal system whose lifeblood is words and that heavily relies on the principle of stare decisis; and argues that one legacy of this cautionary tale of an unforced error can be a functional understanding of how the Due Process, Equal Protection, and Takings Clauses can and should protect private property rights in different yet related ways

Superfluous Judicial Activism: The Takings Gloss

In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the “too far” test introduced by Justice Holmes in Pennsylvania Coal. The “Takings Gloss” is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, the Takings Gloss (original Clause in bold) now reads: [N]or shall private or public property, including rights in property such as the right to exclude, be taken for public use, purpose, or benefit (even if the property taken by eminent domain is transferred to a new private owner), or subjected to regulation that goes too far, or be physically occupied even temporarily, or exacted as an unreasonable development condition, by the government or by private parties delegated by the government, without just compensation, unless the property owner is seeking only injunctive relief. This Article highlights the three newest takings cases (Cedar Point Nursery, PennEast, and Pakdel); introduces a broad range of alternative, non-takings avenues of relief for aggrieved property owners (in constitutional, statutory, and common law); and demonstrates the real dangers of the Takings Gloss in three critical contexts: (1) climate change mitigation and adaptation, (2) COVID-19 restrictions and regulations on landlords and business owners, and (3) land use regulations designed to increase the crucial supply of affordable housing and create more diverse, equitable, and inclusive communities. The Court can abandon the Takings Clause expansion project, secure in the knowledge that landowners and other property owners are adequately protected from government harms

Environmental Law Slogans for the New Millenium

Contrary to the bleakest predictions offered by environmental fatalists during the latter half of the 1900s, humanity and much of the plant and animal kingdom survived New Year\u27s Eve 1999. Similarly, contrary to the dire warnings of industrial organizations and lobbyists that overburdening environmental regulations would spell the end of profitable, American capitalism, the year 2000 dawned in the United States with the world\u27s most extensive array of anti-pollution and pro-conservation measures regulating the globe\u27s most impressive economic engines

Looking Backward: Richard Epstein Ponders the “Progressive” Peril

In How Progressives Rewrote the Constitution, Richard Epstein bemoans the growth of a dominant big government. How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. For the rest of us, significant gaps will still remain between, on the one hand, our understanding of the nation’s past and of the complex nature of constitutional lawmaking and, on the other, Epstein’s version of the nature of twentieth-century reform and Progressive jurisprudence

William Faulkner, Legal Commentator: Humanity and Endurance in Hollywood\u27s Yoknapatawpha

Two of the several films based on William Faulkner\u27s writings - “Intruder in the Dust” and “Tomorrow” - are sensitive adaptations that are permeated with themes regarding the nature of justice, the role of the attorney, and the place of law and lawlessness in society. In many ways, a careful study of each of these two films (and of the novel and story upon which they are based) reveals that William Faulkner holds a place as an important American legal commentator. No writer (before or since Faulkner) captures so vividly and so truly the moral predicament of an American South that pursued official racism as it continued to suffer from (indeed found glory in) its failed crusade of rebellion, and the profound nobility of seemingly ordinary individuals whose endurance, pride, and simple humanity take on mythic proportions. The film adaptations of the novel Intruder in the Dust and the short story “Tomorrow” transmit these crucial aspects of Faulkner’s written words to the screen, while challenging some basic beliefs regarding our legal system