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The COVID-19 pandemic did not eliminate existing social tensions; rather, it at times intensified them. Thus, it is unsurprising that the tension between the liberal state and illiberal religious communities likewise intensified, as those communities were late to comply with COVID-19 public health regulations issued by state authorities. This Article suggests that alongside the behavioral and psychological explanations for individual non-compliance, illiberal religious communities' late response to the COVID-19 threats stems out of these communities' unique characteristics and deeply held norms. It provides five explanations supporting this argument and argues that all result from the interventionist liberal-centric policies embraced by most Western states for dealing with illiberal religious communities. Since COVID-19 is not expected to be the last health-related crisis, and as other environmental, economic, or security emergencies may still require social adherence to government regulations, liberal states should rethink their policies toward illiberal religious communities. The ability to harness those communities to comply with life-saving regulations may not only save lives within these communities but also reduce threats to areas and neighborhoods adjacent to those communities. This Article suggests that the isolation and fortification processes that illiberal religious communities engage in may be mitigated if states embrace pluralistic-centric policies regarding illiberal religious communities., TABLE OF CONTENTS I. 872 II. THE TRAGEDY OF BEING LATE: ILLIBERAL RELIGIOUS COMMUNITIES' LATE RESPONSE TO COVID-19'S THREATS 878 III. WHY DO ILLIBERAL RELIGIOUS COMMUNITIES DISOBEY COVID-19 SAFETY REGULATIONS? [...]

Algorithms are often tainted with bias that could negatively affect subjects' lives in many aspects. But while policymakers and scholars tend to focus their attention on methods to Jix the bias within the algorithm or its output, they neglect a crucial piece of the puzzle: when companies discover bias and fix it in the algorithmic output, they do so behind the scenes. While such a move might debias the output, society remains in the dark about its existence or how it might have affected the outcome. Sociely thus misses a unique opportunity to study social and cognitive biases that shape our civil rights and liberties today-and might become more important in the future with the rise of automation. We thus propose a new mechanism to aid in the study of bias and its elimination, not only in algorithms but also in society. We call it Bias Notification Duty (BND). This article lays the groundwork for this new social-legal responsibility by offering a dilfevent viewpoint on bias, algorithms, and society. We propose that the state imposes a duty (BND) on companies and their employees to, when bias is found, provide a notice to a selected governing body that will further study it and, upon evaluation of its source and impact, will notify those who are both directly and indirectly affected by it accordingly. Affected parties may include other companies that could be subjected to similar bias, individuals that were potentially harmed by it, researchers in relevant fields, and society as a whole. Upon setting the proposal, we examine the rationales behind it and discuss its hurdles. With such acknowledgment, we argue that BNDs are an important legal tool that should be used to aid in de-biasing our society, especially if the world will eventually be algorithmically driven and bias will be even more obscured by technological companies. [ABSTRACT FROM AUTHOR]

Should property owners have a unique right to express their opinion just because they own property? While current law recognizes owners' rights to express their voices in certain instances, it does not provide comprehensive and coherent answers to this question. This article provides an analytical framework for recognizing the owners' right to voice as an independent property entitlement within the owners' property bundle of rights and delineates its boundaries. Yet even when the owners' voice is property-dependent, there is a difference between voice that facilitates the realization of another property entitlement (such as the right to exclude, use, or trade) and voice that is constitutive to ownership in and of itself. Only the latter instances justify recognition of the owners' right to a voice as an independent property entitlement. By examining different branches of both tangible and intellectual property law, such as inheritance law, eminent domain, homeowners' association law, zoning law, and copyright law, this article demonstrates the usefulness of the proposed analytical framework in explaining certain parts of the current law and suggests modifications of other parts. [ABSTRACT FROM AUTHOR]

The COVID-19 pandemic led all states to issue regulations aiming to limit the spread of the coronavirus and reduce morbidity and mortality. Alongside the impediments that the 'stay at home' and social distancing regulations imposed on citizens' freedom of movement, worship, and leisure, they also interfered, sometimes significantly, with owners' property rights. Most states ordered closure of non-essential businesses; some prohibited or suspended evictions of residential and commercial rentals, and others restricted beach access, preventing beachfront owners from using their property. The COVID-19 regulations' harmful economic effects led owners from states all across the country to bring legal challenges to these regulations. Among other claims, owners argued that the regulations violated the Fifth Amendment to the United States Constitution, because the regulations constituted a taking of private property for public use without the payment of just compensation. This article argues that although current takings jurisprudence may pose considerable legal challenges for property owners, establishing owners' Fifth Amendment claims for compensation for the economic damages resulting from the COVID-19 regulations is not at all unfounded. While regulating property in emergencies is often considered within the state police power, thus relieving the government from paying compensation to owners, there may be circumstances where emergency property regulation would constitute a takings, requiring the government to compensate owners. To further this argument, the article proposes a theory that allows lawmakers and courts to better distinguish between the state's police power and its eminent domain power. The proposed theory suggests that although the state's police power is designed to allow the government to regulate property to respond to emergencies efficiently and effectively, such regulation may nevertheless exceed the state police power if it imposes a disproportionate burden on property owners. In such cases, takings claims may become the most significant means by which property owners can cope with emergency property regulation., Introduction The COVID-19 pandemic has stirred the globe and required many countries around the world to take measures to protect their citizens from its consequences. The pandemic--which does not yet [...]

The development of environmental law starting in the mid-20th century involved constant tension with private property. Attempts to protect the dwindling natural resources, extinct species of animals, and ecosystems at risk have often encountered obstacles when they demanded interference with private property. Although the theoretical roots of private property do not justify its transformation into an environmental obstacle and, to a large extent, attach importance to environmental values in justifying private property rights, it was private property that stood at the forefront of legal conflicts that revolved around attempts to expand the environmental protection of natural resources. The reason for turning private property into an obstacle to a proper environmental policy stems from adopting a concept according to which private property protects only human interests and values. In contrast, environmental interests that cannot be converted into human terms remain outside private property boundaries. This either–or concept, or as William Baxter termed it in 1974, “peoples or penguins,” harms the ability of courts and other decision-makers to implement a proper and effective environmental policy because it prioritizes human interests over those of nature and its resources. This Article claims there is no reason for the decision-makers to be forced to choose between people and penguins since the interests of both humans and nature can normatively, and practically should, find expression in private property. Private property as a legal institution is an arena for value discussion as well as for making balances between values that are perceived as necessary for society. The exclusion of environmental values from the value clarification conducted to define the scope of property rights is not only a normative failure but also harms the ability to deal effectively and adequately with pressing environmental challenges. The internalization of environmental values into private property, along with human (owner freedom) and social values (such as efficiency and shared welfare), will enable a proper definition of property rights and will provide courts and other decision-makers with the means to formulate, and implement, a proper environmental policy. [ABSTRACT FROM AUTHOR]

Three concerns are inherent to the power of eminent domain--when a government forcibly takes away private property to provide a social good: abuse of this power, unfair distribution of burdens among members of society, and inefficient implementation of the government project. To protect against these undesirable outcomes, expropriation laws in most Western jurisdictions incorporate three safeguards: due process, a public use requirement, and mandatory compensation. While jurisdictions implement these safeguards in different ways, most demand their implementation as a prerequisite for legitimate expropriation. Arguably, the purpose of allowing governments to expropriate private property is to provide for important societal needs. But this conflicts with the idea that the government ought to perfectly adhere to the three aforementioned safeguards at all times. Imperfect circumstances, such as times of crisis, likely require governments to provide for the needs of their citizens, but afford insufficient time for standard due process. Imperfect implementation of the three safeguards may also be necessary when authorities struggle with budgetary limitations that prevent full compensation, or when they are unable to meet a social need without the involvement of private entities. In all these imperfect circumstances, at least one of the safeguards might be compromised if the government is to provide required social needs through expropriation. This Article proposes a novel model to conceptualize eminent domain, which identifies an interplay among expropriation laws' three safeguards. It further recognizes that each of these safeguards protects, to some extent, against all three of the potential dangers inherent in government's expropriation power. This innovative interplay model legitimizes compromise, such that it is appropriate for there to be only partial implementation of one safeguard as long as the other two are strictly applied. The interplay model proposed in this Article, therefore, allows the government to exercise its expropriation power properly even in imperfect circumstances, while still sufficiently protecting property owners and society from abuse of that power., Introduction 131 I. The Power to Take Private Property: Importance and Inherent Concerns 135 II. The Triangular Safeguard Mechanism of Takings Law 138 III. Imperfect Takings: A Non-Utopian Model for [...]

Dobbs v. Jackson Women's Health Organization, issued by the United States Supreme Court on June 24, 2022, overturned the groundbreaking cases of Roe v. Wade and Planned Parenthood v. Casey. In doing so, the Court sprinkled gasoline onto the fire of social polarization in America. In denying the constitutional status of a woman's right to bodily autonomy and--no less important--opening the door to the denial of other longstanding constitutional rights, the Court's decision emboldened conservatives, enraged liberals, and will roil American politics for years to come. However, as this Article argues, the significance of Dobbs goes well beyond constitutional or doctrinal questions: the decision undermines the status of the Court and the entire legal system as the last consensual arena for resolving complex and intractable disputes in American society. American society has been divided and polarized for decades over a host of fundamental issues, especially abortion. This social polarization has led to a decline in the legitimacy, perceived trustworthiness, and influence of the nation's social and political systems. As these systems lost their ability to serve as mechanisms for resolving disputes, the legal system became almost the only means in American culture for creating dialogue and building consensus. For decades, the Supreme Court has worked to preserve this status. When the Court is required to deal with rooted social disputes in American society, it has often chosen a strategy of conciliation--meaning that the victory of one side does not nullify the rights or delegitimize the worldview of the other. This pluralistic view adopted by the Court has elevated it above the storms of social polarization that have raged across the United States in recent decades. The Dobbs ruling, however, points to a change of strategy on the part of the Court in dealing with rooted disputes in American society. In Dobbs, the Court applied a "conflict strategy," in which a victory is granted to one party, at the cost of a declaratory violation of the values--and a practical violation of the rights--of the other. In this sense, the significance of Dobbs goes beyond the discussion of a woman's right to her body, as crucial as that is. The change in the Court's strategy for resolving in-depth disputes in American society indicates a retreat from the pluralistic view it has adopted and, no less significant, the infiltration of social polarization into the legal system as well. Continued implementation of the conflict strategy will lead to further violation of the civil rights of racial, gender, and sexual minorities (including possibly those rights previously recognized by the Court). It will also lead to rapid deterioration in the Court's status as an institution above the partisan fray and a decline in the ability of American society to obey the rule of law. Moreover, pursuant to the conflict strategy, the Court loses its objectivity, and therefore, its ability to resolve disputes conclusively. [ABSTRACT FROM AUTHOR]

The COVID-19 pandemic led all states to issue regulations aiming to limit the spread of the coronavirus and reduce morbidity and mortality. Alongside the impediments that the “stay at home” and social distancing regulations imposed on citizens’ freedom of movement, worship, and leisure, they also interfered, sometimes significantly, with owners’ property rights. Most states ordered closure of non-essential businesses; some prohibited or suspended evictions of residential and commercial rentals, and others restricted beach access, preventing beachfront owners from using their property. The COVID-19 regulations’ harmful economic effects led owners from states all across the country to bring legal challenges to these regulations. Among other claims, owners argued that the regulations violated the Fifth Amendment to the United States Constitution, because the regulations constituted a taking of private property for public use without the payment of just compensation. This article argues that although current takings jurisprudence may pose considerable legal challenges for property owners, establishing owners’ Fifth Amendment claims for compensation for the economic damages resulting from the COVID-19 regulations is not at all unfounded. While regulating property in emergencies is often considered within the state police power, thus relieving the government from paying compensation to owners, there may be circumstances where emergency property regulation would constitute a takings, requiring the government to compensate owners. To further this argument, the article proposes a theory that allows lawmakers and courts to better distinguish between the state’s police power and its eminent domain power. The proposed theory suggests that although the state’s police power is designed to allow the government to regulate property to respond to emergencies efficiently and effectively, such regulation may nevertheless exceed the state police power if it imposes a disproportionate burden on property owners. In such cases, takings claims may become the most significant means by which property owners can cope with emergency property regulation. [ABSTRACT FROM AUTHOR]

There is a clear tension in the law between exercises of state police power in land-use regulation including zoning laws, on the one hand, and takings under the Fifth Amendment, on the other. Courts have struggled to find a dividing line between the two, but for their efforts what we are left only with is a disjointed array of legal tests, each one as flawed as the next. Legal theorists, for their part, must shoulder some of the blame--no single theory can identify the point at which community need outweighs private property rights. Even well-developed theories thus fail to translate into practical application. But this Article is resolved to bridge that gap. This Article presents a novel theory that provides a unified normative framework for evaluating government interference with private property. It seeks to identify the tipping point at which private property rights must give way to the needs of the community at large. This approach, which I refer to as Property's Tipping Point, is a burden-shifting framework that accommodates competing theories of property. It builds on landmark Supreme Court cases to provide a unified standard for courts to apply in resolving cases of regulatory takings and exactions. The approach presented in this Article has both a substantive and a procedural component. It develops two tests that work dynamically to identify the point where community need trumps owner autonomy: the indispensability of needs and the generality of action. The former requires that any government interference with private property is designed to promote community prosperity. The latter test--the generality of action--confines the government to the boundaries of the rule of law. It is only by passing these two tests that a government authority may reach Property's Tipping Point. [ABSTRACT FROM AUTHOR]

The article focuses on the laws governing the same-sex marriages in the U.S. focusing on Obergefell v. Hodges court case. Topics discussed include analysis of Obergefell case in which the court held that the fundamental right to marry is guaranteed to same-sex couples by Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; tension between the liberal state and illiberal communities; and Bob Jones University v. United States court case on same.

This Article challenges the preference in takings law for remedial simplicity over remedial justice, and demonstrates why this preference--which is manifested by the application of a universal compensation standard--fails to fulfill the constitutional requirement of "just compensation." This failure exists at both the normative and positive levels. In a normative sense, the universal compensation mechanism is inadequate because it ignores important differences among owners, among types of property, and in the consequences of expropriation. Consequently, current takings law is at odds with the pluralistic nature of property ownership. In a positive sense, takings law is ill-equipped to assess the actual loss incurred by owners whose property is taken. Courts apply a universal compensation standard--the fair market value of the taken property--which makes compensation exclusively dependent on the market, imports the failures of the market to state action, ignores nonmarket values and losses incurred by owners, and excludes market values that are not directly linked with the property's price. This Article does not argue that we must sacrifice simplicity in the law for the sake of justice, but suggests that we can have them both. By expanding the range of remedies available to owners subject to expropriation, this Article offers a normative rule-based remedial scheme in takings law. To avoid ad hoc adjudication and practical assessment difficulties, this Article proposes categorization of the different prototype failures that characterize current law. Each prototype category requires [ABSTRACT FROM AUTHOR]

This Article argues that individuals who live in highly cooperative common interest communities should, in certain instances, be entitled to additional compensation or other remedies when their property is taken through eminent domain. The exclusive takings remedy of monetary compensation equal to the fair market value of the property cannot always account for loss of communality. This Article offers guidelines for allocation of additional remedies (monetary and in-kind) that recognize such loss. This proposal is grounded in a pluralistic conception of property, which holds that the state should support individuals' use of property as a social instrument to fulfill diverse values and beliefs. To that end, the state should balance several factors to determine whether a member of a community, or a community as a whole, should be entitled to remedies for communal loss: (1) the size and scope of the taking with in the comm unity ; (2) the role, if any, of the community's cooperation in its members ' realization of a shared conception of the good; (3) the community's social legitimacy as determined primarily by its structural openness, that is, its members ' ability to simultaneously belong to other communities; and (4) the community's ability to self-rehabilitate as determined by its political and economic strength. The state should also consider these factors in determining which of several types of remedies for communality loss would be most appropriate. [ABSTRACT FROM AUTHOR]