Reliance Interests and Takings Liability for Rail-Trail Conversions: \u3ci\u3eMarvin M. Brandt Revocable Trust v. United States\u3c/i\u3e

On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case,Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, [t]he right of way [200 feet wide] through the public lands of the United States. The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over 94 million acres of public lands were given over to the transcontinental and other state-chartered railroads for sale to assist in financing the road\u27s construction. Besides being an obscure case based on an equally obscure law, the procedural posture of the case is even more unusual, as the government prevailed in the U.S. Court of Appeals for the Tenth Circuit, and yet it supported the grant of certiorari

Doing a Double Take: Rail-Trail Takings Litigation in The Post-\u3cem\u3eBrandt Trust\u3c/em\u3e Era

After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW lands to the class of potential takings cases that already suffer serious legal and logical infirmities. The Court’s hasty decision simply compounds the disastrous effects of the Court of Federal Claims’ already disastrous takings jurisprudence in this area

Foreword: Toward a Multicultural Theory of Property Rights

This panel, sponsored by the Minority group and Property Sections of the AALS for the January, 2000 annual meeting, was composed of an exciting group of scholars critically analyzing traditional theories of property and current distribution of resources. The panel, entitled Reviewing the Legacy of Liberalism: Life, Liberty, and the Pursuit of Happiness -- Linking Property to Rights, challenged traditional notions of property rights, from a discussion of the gender implications of African property law, to a critique of traditional analyses of Johnson v. M\u27Intosh, to property as heteronormative. Because the articles provide so much rich and thought-provoking material, I would like to focus my comments on ways in which ongoing historical disputes about property rights will be manifested in the coming years as highlighted in the papers that follow

Reliance Interests and Takings Liability for Rail-Trail Conversions: \u3ci\u3eMarvin M. Brandt Revocable Trust v. United States\u3c/i\u3e

On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case,Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, [t]he right of way [200 feet wide] through the public lands of the United States. The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over 94 million acres of public lands were given over to the transcontinental and other state-chartered railroads for sale to assist in financing the road\u27s construction. Besides being an obscure case based on an equally obscure law, the procedural posture of the case is even more unusual, as the government prevailed in the U.S. Court of Appeals for the Tenth Circuit, and yet it supported the grant of certiorari

Great Variety of Relevant Conditions, Political Social and Economic : the Constitutionality of Congressional Deadlines on Amendment Proposals Under Article V

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing deadlines on amendment proposals began in 1917 with the Eighteenth Amendment, but has not been consistent since. Deadlines appear to have originated as an effort to torpedo amendments by opponents, but have since become almost pro forma. Some argue deadlines ensure finality and closure; others argue they infringe on the power of states to control the ratification process free of unconstitutional limitations imposed by the national legislature. With the 1992 ratification of the Twenty-Seventh Amendment after 203 years, and state ratifications of the ERA after 35 years, the issue of congressional deadlines is both front and center and of potentially enormous consequence. This Article examines the history, theory, and policy of amendment deadlines and argues that they are unconstitutional limitations on state power, inconsistent with the federalism guarantees of the founding. This issue will almost certainly require resolution by the Supreme Court, which needs to give the issue of congressional deadlines its most thoughtful attention

Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858-1866

Historians of Anglo-American family law consider 1857 as a turning point in the development of modern family law and the first big step in the breakdown of coverture and the recognition of women\u27s legal rights. In 1857, The United Kingdom Parliament ( Parliament ) created a new civil court to handle all divorce and matrimonial causes, removing the jurisdiction of: the ecclesiastical courts over marital validity; the Chancery over custody of children and separate estates; the royal courts over marital property; and Parliament over full divorce. The new Divorce and Matrimonial Causes Court, a wing of the admiralty and probate courts, would handle all matters familial beginning in 1858. The 1858 divorce court was the first attempt in the Anglo-American legal system to create a court specially dedicated to the family, a court that would take a holistic approach to what was perceived in the 1850s to be a social and moral crisis -- the so-called divorce epidemic among the wealthy, and the exclusion from divorce by a rapidly-growing, vocal middle class. And although many aspects of women\u27s disabilities under coverture remained intact in the new court, married women\u27s demands for legal reform and independent legal rights influenced much of the reform rhetoric. The creation of the court marked the final shift in the modern secularization of divorce and an acceptance of the appropriateness of judicial oversight in matrimonial affairs. The creation of a civil court to handle these varied aspects of legal divorce was a rejection of ecclesiastical and legislative control over the marital relationship as well as a unification of family property, custody, and marital status. The property rights of the parties would become intertwined with the custody needs of children and an ethic of marital fault. For over a century, marital fault would become the focus, the key to divorce, a determinant in property distributions, and a major factor in determining the best interests of children. The administrative logistics of negotiating the breakdown of the marital relationship would be made simpler and less costly, thus making the remedy available to a wider class of litigants. The new court dealt the final death blow to the ecclesiastical courts and the highly selective and guarded parliamentary divorce. Its rules were the precursor to modern family law and led the way toward the creation of specialized family courts, whose procedures and rules were believed to minimize the animosity, destructiveness, and expense of traditional adversarial litigation

The Shifting Sands of Property Rights, Federal Railroad Grants, and Economic History: \u3ci\u3eHash v. United States\u3c/i\u3e and the Threat to Rail-Trail Conversions

This Article is an analysis of a federal circuit case from 2005 that has spawned some disturbing precedents in the area of federal transportation and railbanking policy. Specifically, the National Trails System Act (NTSA) provides a mechanism for preserving unused railroad corridors for future reactivation while allowing interim recreational trail and mixed utiity use along the corridor. Converting rail corridors to recreational trails is a very popular process and communities across the country are demanding more and more conversions, as people seek the amenities of linear parks and greenways. Hash v. United States, however, deals with the property rights underlying the thousands of miles of railroad corridors that were granted directly to the railroads by the federal government out of public lands. The Court of Appeals for the Federal Circuit held that the government no longer had any interest in these lands, even though the railroads only received easements. This ruling effectively ordered that the application of the NTSA to federally granted corridors is a facial taking requiring compensation in all cases. However, the United States Supreme Court has never found that any federal law works a facial taking, and the Court upheld the railbanking act as permissible under Interstate Commerce. Yet, the effect of this case is to find a facial taking fifteen years after the Supreme Court said there was not one. The decision renders null a number of federal statutes enacted to dispose of these corridors and generally throws a wrench into the otherwise relatively stable jurisprudence of federal railroad property law. And although at least one successor case is on appeal, it is critical that this decision be revisited in a thorough manner. Even if successive courts adopt the property determinations of the Hash decision, there are a number of ancillary issues that are critical to railbanking, corridor preservation, and interim trail use that need to be resolved before we lose these corridors forever