Taking the Imperial Judiciary Seriously: Segmenting Property Interests and Judicial Revision of Legislative Judgments

This Article examines the diversion of the Takings Clause from its historic limited role to that of a charter for courts to second-guess legislative determinations of land-use rights and wrongs. As we shall see, prior to Lucas the Supreme Court and others following its lead have generally not regarded the Takings Clause as a warrant for reaching de novo determinations on land use problems and then substituting such judicial determinations, if different, for those of the legislature. Some notable exceptions in the Claims Court and Federal Circuit will then be considered along with the ostensible Supreme Court authority, a sentence in Agins v. City of Tiburon. The future importance of such activist review will be considered in light of the main barrier still standing against it, the no-segmentation rule, which requires that the impact of land use regulations be viewed in relation to the owner\u27s property “as a whole.” Finally, against this background the Article will address the question of the courts\u27 proper role in supervising legislative judgments in the land use field

Does Hard Incompatibilism Really Abolish ‘Right’ and ‘Wrong’? Some Thoughts in Response to Larry Alexander

In a challenge to recent writings of Derk Pereboom and Gregg Caruso,3 Larry Alexander makes the following claim: If one accepts the Pereboom-Caruso “hard incompatibilist” view of choice, which regards blame and retributive punishment as morally unjustified because free will is an illusion, then “normativity completely disappears.” In making this claim, Professor Alexander appears to hold that the moral distinction between right and wrong conduct (“normativity”) cannot effectively exist unless those who do wrong “deserve” to receive blame and punishment in response to their misbehavior. This is not, however, necessarily so

What Is Behind the Property Rights Debate?

Lucas v. South Carolina Coastal Council\u27 obviously presents issues that range far more broadly than just whether people should be allowed to build on beaches and dunes. Many observers have viewed the case as a splendid opportunity for the Supreme Court to re-establish private owner autonomy in land use decisions - to cut down, perhaps drastically, on elected legislatures\u27 traditional power to protect the environment by regulating uses of land. Behind the property rights debate is the question of whether states and communities really ought to have the power that they have traditionally had to control the development and patterns of growth within their bounds

Surviving Spouse\u27s Distributive Share of Amendable Trusts

Purcell v. Cleveland Trust Co., 200 N.E.2d 602, 28 Ohio Op. 2d 262 (P. Ct. 1964). Approximately three years before her death in 1960, plaintiff\u27s wife created an amendable and revocable inter vivos trust, naming defendant as trustee. The formally drawn instrument provided for pour-over from her simultaneously executed will, however, a specific bequest to the trust was apparently never made. After his wife\u27s death, plaintiff, choosing to exercise his statutory prerogative of taking against his wife\u27s will: demanded that defendant trustee pay over to h i from the corpus of the inter vivos trust the one-half share which he claimed was due him under Ohio law. Upon the trustee\u27s refusal to accede, plaintiff brought an action in the Probate Court of Cuyahoga County asking for a declaratory judgment establishing his right to receive a distributive share from the trust corpus. The court sustained the right of plaintiff to one-half of the fund by virtue of his election to take against the will

Property as Prophesy: Legal Realism and the Indeterminacy of Ownership

Property law, like all law, is indeterminate. This means that ownership itself is indeterminate and every owner is vulnerable to challenges based on unexpected legal rules or newly created ones. Even the most seemingly secure rights can be defeated or compromised if a clever-enough lawyer is retained to mount a challenge. The casebooks used in first-year property courses are full of examples. In the case of particularly valuable property, such as works of art, the motivation to fashion arguments to support ownership challenges is obvious. Short and strictly interpreted statutes of limitations can mitigate the risks to ownership by cabining the timeframes from which title challengers can draw facts to support their claims

Tidal Title and the Boundaries of the Bay: The Case of the Submerged High Water Mark

The unique character and special public importance of lands bordering the sea have been recognized since ancient times. In the nature of things, shore lands, together with the waters which cover them (permanently or periodically), have a number of valuable uses not shared generally with inland territories. Navigation, passage, fishery, and bathing are among the particular uses of the shore or adjacent sea for which the public has traditionally received greater or lesser legal protection. However, this list is neither exclusive nor closed. For example, the recent avalanche of accretions to our stock of ecological knowledge has heightened (if not created) a general awareness of the economic importance of tidal areas as a source of ocean nutrients and as a sink for ocean pollutant

Landlord Control of Tenant Behavior: An Instance of Private Environmental Legislation

The present Article suggests that the problem of incompatible neighboring tenants can be most efficiently and justly dealt with by permitting a substantial degree of landlord control over tenant behavior-with the removal of offending tenants, at the landlord\u27s instance, being the most effective sanction of ultimate recourse in the effectuation of such control. For some courts, ceding this power of control to landlords would require a measure of constraint which they may find uncustomary or even distasteful. As institutions charged with doing justice, the courts\u27 instinct to intervene in the norm-creating process is undoubtedly great, even when the parties before the court have ostensibly agreed beforehand to the norms of behavior (and consequences of violation) which are to apply. Of course, such intervention is appropriate when the privately established norms or consequences contravene some articulable public policy, such as prohibitions on visits by members of racial minorities or incarceration of an offending tenant as a sanction. But the courts have not limited their second guessing on the propriety of agreed norms or sanctions to cases where the adverse effect on the tenant violates some clear public policy. In New York, for example, tenants have been allowed to physically attack their neighbors, gas themselves in the kitchen, keep accumulated garbage and unhygienic animals in their apartments and play piano scales twelve hours per day without jeopardizing their possessory rights or losing the sympathy of the courts. Perhaps the courts in such cases ask themselves, Where can these people go? But where can their neighbors go

Tidal Title and the Boundaries of the Bay: The Case of the Submerged High Water Mark

There is no particular policy reason why the same line should be used for both the upland boundary of the jus publicum and the seaward boundary of parcels bounded by the sea. In interpreting the language used in grants of private interests, the ostensible object of the inquiry is to ascertain the parties (particularly the grantor\u27s) intent. Subject only to limitations on the grantor\u27s estate or power to convey, it is that intention which controls the extent of his transfer. On the other hand, in setting the upland boundaries of lands subject to the jus publicum, the courts are essentially making a policy determination, i.e., which lands are subject to what mode of use-allocation, a question of law in which private intentions play no role. Nonetheless, for reasons which seem largely historical, the rule of construction for grants extending to the sea has been held to result in the same boundary line as the line which, by law, defines the upland limits of the jus publicum. In the case of both, the line is the high water line. This article explores judicial resolutions in New York to the question: Where is the high water line