Thursday, July 18, 2024
Hawai'i Free Press

Current Articles | Archives

Saturday, April 4, 2015
"Through a Glass Clearly: Predicting the Future in Land Use Takings Law"
By Robert Thomas @ 12:56 AM :: 4036 Views :: Land Use
New Law Review Article Worth Reading: "Through a Glass Clearly: Predicting the Future in Land Use Takings Law"

by Robert Thomas, InverseCondemnation, April 2, 2015

It's not often that we say a law review article is a "must-read." But this one definitely is, especially for all you regulatory takings mavens: David L. Callies, Through a Glass Clearly: Predicting the Future in Land Use Takings Law, 54 Washburn L. Rev. 43 (2014). A pdf of the article is posted here.

From the Introduction:

The subject of takings—the government taking of an interest in real property, either through eminent domain or through the exercise of the police power—has been the subject of continuous litigation for nearly a century. The past ten years have been particularly fruitful, as litigants struggle with the meaning and extent of the Fifth Amendment’s Public Use Clause and the extent to which the overzealous exercise of the police power can sufficiently deprive a landowner of rights in property so that the property has been “taken” by regulation, ever since Justice Holmes opined in Pennsylvania Coal Co. v. Mahon that a regulation that goes “too far” is a constitutionally-proscribed taking. Thus, in the area of physical taking, we have the expansion of public use—use by the public—to include public purpose (Kelo v. City of New London and Hawaii Housing Authority v. Midkiff), leaving very little room for landowner defense unless the physical taking can be proven “pretextual.”
. . .
This article explores some of the recent case law in these areas of takings, both physical and regulatory, and makes some predictions about the direction of takings law, bearing in mind Professor Lawrence Tribe’s admonition that those who attempt to thus use a crystal ball may run the risk of later having to eat ground glass.

Among Professor Callies' predictions: (1) exactions are going to receive more scrutiny from the courts; (2) development agreements will be used more in the place of exactions; (3) Kelo is ripe for revisiting; (4) government will try to expand the public trust, "custom" and "background principles" to avoid takings liability; and (5) Williamson County is ripe for reexamination.

Check this one out for sure. 



TEXT "follow HawaiiFreePress" to 40404

Register to Vote


Aloha Pregnancy Care Center


Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii


Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii Military History

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Together


Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

July 4 in Hawaii

Land and Power in Hawaii

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

National Parents Org Hawaii

NFIB Hawaii News

NRA-ILA Hawaii


OHA Lies

Opt Out Today

Patients Rights Council Hawaii

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii

Rental by Owner Awareness Assn

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

School Choice in Hawaii

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii