Search

The article discusses the Fifth amendment ruling in Baker v. City of McKinney, where the court invoked a "necessity exception" to deny compensation under the Takings Clause after police destroyed Vicki Baker's home during an emergency involving a fugitive kidnapper. It found that the court's application failed to properly align with historical precedents. It suggests the future courts to apply the necessity exception more carefully.

The article focuses on analyzing the interaction among copyright law, state sovereign immunity, and the federal Takings Clause, addressing the issue of state actors without consequences after the Jim Olive Photography v. University of Houston decision. Topics include exploring the possibility of lawsuits under Takings Clause to hold state actors accountable for unauthorized use of copyrighted material and a refined version of the Copyright Reform Clarification Act for this purpose.

The article briefly provides the legal history of the Takings Clause to the U.S. Constitution. It discusses the U.S. Supreme Court case Cedar Point Nursery v. Hassid involving eminent domain and labor relations, and Court held that a regulation made pursuant to the California Agricultural Labor Relations Act that required agricultural employers to allow labor organizers to regularly access their property for the purposes of union recruitment.

The article focuses on decision of the U.S. Court of Appeals for the Third Circuit in the case Nekrilov v. City of Jersey City which held that a set of investors could not have had reasonable investment-backed expectations based on municipal officials' public statements. It mentions court took a novel approach to investment-backed expectations that risks creating doctrinal confusion in regulatory takings law. It also mentions violation of the Takings Clause, and the Contract Clause.

The Takings Clause of the Fifth Amendment to the United States Constitution provides that "private property [shall not] be taken for public use, without just Compensation."' While courts and academics have put considerable amounts of effort into discussing the meaning of "taken" or public use, they have given far less attention to the phrase "private property." Notable scholars have provided a set of definitions and frameworks to determine when a particular right qualifies as takings property. However, courts and commentators have yet to define the types of rights that are entitled to constitutional protection with sufficient precision to avoid an inconsistent and inefficient application of the Takings Clause. This Article argues that, while these definitions oftakings property lead to sound and consistent outcomes when applied to traditional rights such as a fee simple absolute or an easement, they produce underwhelming results when tested against less conventional interests. The Article assesses how these frameworks perform with a property interest as elusive as appropriative water rights and provides broader lessons about both takings property and water law. First, it becomes apparent that the existing literature and court opinions have unreasonably sanctified rights in land while decrying other types of interests as non-property by applying inconsistent standards. Second, the analysis of these existing frameworks reveals some critical shortcomings in their design that had not yet been described. To address these issues, this Article proposes a solution that harmonizes some of the central components of existing takings property definitions. [ABSTRACT FROM AUTHOR]

The article focuses on history of the Mississippi River and its previous floods. It mentions shortcomings of the legal system in respect to addressing large floods and explores policy options that could more effectively respond to floods. It also mentions Missouri had the intended effect of reducing the floodwaters and the U.S. Constitution's Takings Clause, providing insufficient protection for landowners.

The article highlight within that general role the types of cases in which the U.S. Court of Federal Claims has been and will continue to be called upon to protect certain key individual liberties guaranteed by the Constitution. It mentions property rights protected by the Takings Clause are the most obvious example within the court's jurisdiction and cases that implicate the First and Fifth Amendments' guarantees of fundamental personal rights.

The article focuses on the cause and possible litigation solutions to the problem of excess nitrates in Iowa drinking water, specifically the issue regarding constitutional Takings Clause litigation. It mentions science behind the problem, the link to agriculture, the medical risks to the rural poor in Iowa, the background of the legal approach to the problems of nitrates in Iowa waters.

The article explores whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause, and how to determine just compensation in order to reach certain conclusions in the U.S.

In the area of regulatory takings, federal courts often confront issues of state law. This is because property is largely a regime of positive state law, while the Takings Clause is a federal constitutional guarantee. This Note deals with the standard of review to be applied by federal courts as to questions of state property law in the takings context. This Note explores two regulatory takings decisions by the Supreme Court--Lucas v. South Carolina Coastal Council and Stop the Beach Renourishment v. Florida Department of Environmental Protection--in which the Court conducted independent assessments of state property law. This Note argues that a more deferential standard of review, known as the fair support rule, is more appropriate for state-law issues arising in takings disputes. To arrive at this conclusion, this Note draws on principles of federalism and positivism expressed in Erie Railroad Co. v. Tompkins and by scholars in the legal process school. [ABSTRACT FROM AUTHOR]

The article focuses on federal and state takings clauses under the Fifth and Fourteenth Amendments, including the Supreme Court's most recent definition of "public use" in Kelo v. City of New London. It mentions challenges to the eminent domain power based on a lack of statutory authority and violation of procedural due process, and improper delegation of power. It also mentions private entity use of eminent domain to address infrastructure needs.

Judges and commentators have widely acknowledged that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide "sensitive places" cases--challenges to location-based gun laws--in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that uses history and tradition in a principled way. This Article proposes a solution to address that problem. An untapped source of guidance is the Court's takingsjurisprudence. Interpreting their respective constitutional provisions, Justice Scalia observed that both property rights and the right to keep and bear arms are fundamental rights that prefigure ratification. Specifically, Scalia observed, both the Second Amendment and the Takings Clause rely upon bright-line rules subject to a location-based exception, require the use of history and tradition in their respective analyses, and deal with property interests. In several important cases--including Heller and McDonald--the Court has indicated that the right to keep and bear arms is animated by property-like principles. This suggests the Court's well-established takingsjurisprudence is a more germane source to inform its less-developed sensitive places doctrine than the sources scholars andjudges currently look to, such as free speech doctrine. This Article explores what the Court's takingsjurisprudence can teach us about the constitutionality of location-based gun laws. I propose a framework for courts to analyze sensitive places cases by borrowing from doctrine that is more familiar to courts, but similarly governs a pre-constitutional, individual right. My examination of the Court's takings doctrine indicates that the role of history and tradition in analyzing a fundamental right, like the right to keep and bear arms, is more elastic than many assume--but that history and tradition should play a larger role than it currently does. [ABSTRACT FROM AUTHOR]

The article offers information on the historical and normative look at past and present reparations schemes and explains the public use question posed by the Takings Clause through cases like Kelo and Hawaii Housing Authority v. Midkiff. It discusses the South African efforts to redistribute land to black South Africans stripped of their rights during apartheid.

The article discusses the court case Katzin v. United States, wherein the U.S. Federal Circuit rejected the argument of a non-possessory physical taking of a private property by the government, but is said to have failed to consider the purpose of the Takings Clause.

The article discusses the strict liability of electric utilities in utility-caused wildfires under the California Constitution's Article 1, Section 19. Topics include the case of the Camp Fire involving Pacific Gas & Electric (PG&E) in Paradise, the damage recovery solution for homeowners under the Takings Clause of the state's Constitution, and the state's inverse condemnation law.

The United States Constitution and many state constitutions include takings clauses stating that private property shall not be taken for public use without just compensation. In Knick v. Township of Scott, the United States Supreme Court assessed the Takings Clause of the Fifth Amendment under the Constitution. The Supreme Court held property owners have an actionable Fifth Amendment takings claim when the government takes private property without just compensation, and therefore property owners may bring their claims in federal court under 42 U.S.C. § 1983 at that time. Plaintiff Rose Mary Knick is a landowner in rural Pennsylvania. Knick's property includes a small graveyard where her ancestors are allegedly buried. The Township of Scott passed an ordinance requiring all cemeteries to be open and accessible to the public during the day and authorized enforcement officers to enter upon any property to determine the existence and location of any cemetery. Knick filed a 42 U.S.C. § 1983 action in federal court, alleging that the ordinance violated the takings clause of the Fifth Amendment. Prior to Knick v. Township of Scott, the state-litigation requirement required property owners to seek just compensation under state law in state court before bringing a federal takings claim under § 1983. However, plaintiffs who lost their takings claim in state court found themselves without recourse in federal court, because the full faith and credit statute required the federal court to give preclusive effect to the state court's decision. This effectively prevented federal courts from ever considering these takings claims. In Knick v. Township of Scott, the Supreme Court ultimately overruled the state-litigation requirement, allowing takings plaintiffs to sue in federal court as soon as their property was taken without just compensation. The decision in Knick removed a significant legal barrier that for decades barred property owners from challenging local ordinances in federal court. [ABSTRACT FROM AUTHOR]

The article focuses on causes of the current backlash against eminent domain for energy projects in the U.S. Topics discussed include the impact of fracking revolution and available sources of domestic shale oil and gas on energy outlook; the U.S. Supreme Court case Kelo v. City of New London on eminent domain; and the impact of new technologies, markets, and regulations on increase in the use of wind, solar, and hydropower in the country.

The Supreme Court has held that "[t]he word 'just' in ['just compensation'] . . . evokes ideas of 'fairness.'" But the Court has not been able to discern how it ensures fairness. Scholars have responded with a number of novel policy proposals designed to assess a fairer compensation in takings. This Article approaches the ambiguity as a problem of history. It traces the history of the "just compensation" clause to the English writ of ad quod damnum in search of evidence that may shed light on how the clause was intended to ensure fairness. This historical inquiry yields a striking result. The word "just" imposes a procedural requirement on compensation: a jury must set compensation for it to be just. This historical understanding is especially important to modern law since the Supreme Court applies a historical test to determine whether the Seventh Amendment guarantees the right to a jury. This Article corrects the common misperception that juries did not determine just compensation in eighteenth-century English and colonial practice. [ABSTRACT FROM AUTHOR]

The article reviews land acquisitions by the U.S. government under the New Deal in order to build the Fort Peck Dam and Reservoir project in Montana in the 1930s. It looks into the differences in mean acquisition prices of private lands acquired through condemnation or eminent domain, voluntary agreement or dispossession. It discusses the U.S. Army Corps of Engineers' (USACE) acquisition process, as well as the impact of dispossession on ranchers and homesteaders including farmer relocation.

The article focuses on decision of the U.S. Supreme Court in case Knick v. Township of Scott on claimed violations of the Fifth Amendment's Takings Clause. It mentions Court held that the taking of property without just compensation creates an actionable takings claim and Court's continued willingness to incrementally sidestep the constraints of stare decisis. It also mentions seeking damages for the taking of her property for public use without just compensation.

The home enjoys a special place in American constitutional law. A doctrinal thread runs across the first five amendments that demarcates the home as a realm in which rights enjoy elevated protection. That thread covers rights involving smut, guns, soldiers, searches, and selfincrimination, hut inexplicably does not extend to takings. This stark dichotomy between the solicitude of the home for most rights and the opposite for takings produces a deep puzzle. This Article contends that the answer to this fundamental puzzle is that the Court's takings doctrine, unlike the home-centric doctrines in the Bill of Rights, is infected with/wV-Lochner v. New York judicial deference to economic regulation. This has influenced the Court's aversion to a special protections doctrine to homes under the Takings Clause. This Article argues that, as a matter of constitutional coherence theory, which prizes doctrinal symmetry and harmony, the Court should, in limited circumstances, extend the home-centric thread to protect homes in takings that expropriate title to or impact the economic value of homes. This Article also grapples with several broader methodological, doctrinal, and theoretical implications. First, the Court consistently applies atextual methods of interpretation of the home. Second, this atextual interpretive pattern of influence supports this Article's proposition that the home-centric doctrinal thread should extend to takings. Finally, a congruent home-centric Bill of Rights that extends to takings aligns neatly with constitutional coherence theory. [ABSTRACT FROM AUTHOR]

In prisons across the country, inmates are encouraged to participate in digital media programs. One in ten correctional facilities in the US has digital media programs in which inmates purchase both a device--such as an MP3 player or tablet--and content or services for the device--such as digital music--from a third-party vendor. Although fee structures vary, the facility or the state corrections department usually receives a commission on the revenue generated from inmates' purchases, thereby profiting off of each purchase that an inmate makes. As their contracts with third-party vendors end, state correctional departments may change vendors, either in search of a better program, a more profitable contract, or other benefits. A change in vendor may prompt a new policy that strips inmates of their previously purchased devices and digital purchases, forcing them to repurchase the same content from the new vendor. Because their property has been taken by state actors who earn commissions off of every repurchased file, those commissions are used by the state to fund various state or prison functions, and the prisons do not fully compensate inmates for the value of their property, some inmates are considering challenges under the Takings Clause of the Fifth Amendment. While the Takings Clause has rarely been used in the context of digital property, it may offer inmates an opportunity to be compensated for the millions of dollars they have spent on digital media. In an increasingly digital world, courts will have to grapple with the application of the Takings Clause to digital property, and this situation offers an opportunity for them to do just that. [ABSTRACT FROM AUTHOR]

The article focuses on decision of the U.S. Supreme Court in the case Oil States Energy Services, LLC v. Greene's Energy Group, LLC decision, which upheld the constitutionality under Article III and the Seventh Amendment of the inter partes review (IPR) process. It explores the undecided issue of whether the Takings Clause applies to IPR proceedings describes a framework for applying regulatory takings analysis to patent rights taken during IPR.

The article explore diversion of water from Lake Tahoe by the State of California would lead to a viable takings claim by the homeowners of property within the Tahoe Keys. It mentions economic effect that a water element has on a property value and rights to the water in Lake Tahoe of both the state of California and the homeowners within the Tahoe Keys. It also mentions takings jurisprudence and applies on the California's diversion of the water.

Although most land-use regulation in the United States remains local, the federal government has played an increasing role. Some federal intervention, particularly in the environmental area, has involved affirmative federal regulation superimposed on the local regulatory scheme. But other federal intervention operates differently by overriding local regulation to permit markets to operate. In addition to the Takings Clause, examples include the Religious Land Use and Institutionalized Persons Act, the Telecommunications Act, the Fair Housing Act, and the First Amendment's adult-use jurisprudence. In each of these areas, local regulation survives only if it leaves intact a sufficiently thick market for the uses federal law seeks to protect. To mount a successful challenge, the landowner must demonstrate that the local regulation would leave consumers without adequate access to federally protected uses. In evaluating the adequacy of markets for federally protected uses, municipal boundaries are sometimes, but not always, critical. When the concern is assuring access to religious facilities or adult uses, a municipality should be able to justify a reasonable ordinance, despite its exclusionary effects, by demonstrating the availability of reasonable access in neighboring communities. But when access to municipal facilities--particularly schools--is at issue, municipal boundaries are critical, and access in neighboring communities is unlikely to prove adequate. [ABSTRACT FROM AUTHOR]

The government cannot flood private property by virtue of a man-made dam, or acquire such property for flood control purposes, and then claim that it owns the property. This principle is not nuanced, complex, or complicated. It is basic Constitutional law. It is a bedrock protection afforded landowners through the Takings Clause of the United States and North Dakota Constitutions. In cases of artificial, government-induced flooding, or the acquisition of private property for flood control purposes, state law lacks the power to transfer title to the government without compensation and a showing that the property is being taken for a public use. The Takings Clause is an unbreakable shield protecting property owners from the government claiming their minerals through fiat, study, or legislation. The Takings Clause shields property owners like the Wilkinson family who lost their surface lands to the United States when it acquired the property for the Garrison Dam and Lake Sakakawea in the late 1950s but reserved the mineral interests. The State of North Dakota has no right, title, or claim to any of the minerals, like the Wilkinsons' mineral interests, underneath Lake Sakakawea. Given North Dakota's economic dependence on its land for agricultural and energy-related purposes, it is imperative that our courts protect landowners from ultra vires attempts by the State to eviscerate private property rights and claim that which is not theirs. This article discusses the State's unconstitutional attempt to claim ownership of all the mineral interests underlying Lake Sakakawea and the history of the Wilkinson case, where one family stood up to the State to protect property that has been in their family for generations. [ABSTRACT FROM AUTHOR]

The article explores whether in a wildfire, will U.S. governmental actors be able to take water owned by a private citizen and whether even in an emergency scenario, the government owe just compensation under the Fifth Amendment Takings Clause. Topics covered include the need for the law to respond to an emergency water taking in two ways, the reason of courts that a seizure of water rights constitutes a governmental taking,and the laws regulating surface water rights in Western states.

The article argues Takings Clause, of the Fifth Amendment to the U.S. constitution, provides that private property be taken for public use without just compensation, so how does the Takings Clause fit into intellectual property rights. Topics discussed include provisions of America Invents Act and Copyright Act; and decision of the District Court for the Central District of California in the case "Estate of Graham v. Sotheby's."

The article looks into the protection of federal public lands in California under the administration of U.S. President Donald Trump. It discusses alternative approaches that California might take to achieve the policy goals of Senate Bill 50, that include regulation of state and federal public land conveyances, acquisition of public lands through eminent domain, regulation of federal public and private lands, and zoning.

The article suggests the use of U.S. Supreme Court Justice Hugo Black's Armstrong principle to help judges and courts adapt rules to address cases related to climate change. Topics discussed are the Takings Clause of the Fifth Amendment, the 2018 court decision in St. Bernard Parish Government v. United States in which private landowners claimed damages for government accountability for flooding caused by Hurricane Katrina, and distributional fairness rationale.

Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations--for example, environmental regulations--certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property's use and enjoyment. This feature of property law means there is potential for interstate variation in property rules. In the private law of property--the body of law that governs disputes and relationships among private parties--there remains some variation among the states in both the forms of property recognized and in the different rules that limit ownership and use. However, in this Essay prepared for a symposium on federalism at the Pepperdine School of Law, I marshal evidence that one portion of the public law of property is on a different trajectory. This Essay identifies two areas of convergence across states in constitutional takings law. First, though the federal Constitution could theoretically protect varied property interests and could measure the constitutionality of regulations affecting property against different background state legal re-gimes, developments in takings doctrine have enabled some courts to make cross-state comparisons both to create or cap the interests protected and to determine which limitations on title an owner should have expected. Second, despite the potential for variation offered by state constitutional takings provisions, state courts often interpret their constitutional protections for property in similar ways even when presented with different text or other relevant considerations. This Essay identifies how lower courts are applying takings doctrine in ways that may curb the significance of interstate differences in property rules and speculates on the features of takings law that minimize variation in the scope of constitutional takings protection where the potential exists for it. In surfacing the phenomenon of convergence, this Essay builds a foundation for considering the virtues, vices, and normative desirability of uniformity and variation in both takings law and in property law more generally. [ABSTRACT FROM AUTHOR]

When a state utility wishes to cross land located within a Native American reservation, but the landowners refuse to allow it, the utility in most circumstances may exercise eminent domain over the land. Under the authority of a federal statute, 25 USC §357, states may generally condemn allotments, plots owned by individuals that lie within the sovereign boundaries of a tribal reservation. Courts have long recognized that the state authority to condemn these allotments under § 357 arises from the principle that individually owned allotments are no longer "tribal" land and, as a result, they are not protected by tribal sovereignty. Congress's failure to transition away from the allotment system has resulted in an ownership structure for certain plots of reservation land that it did not anticipate when it enacted § 357. Today, not all allotments are held entirely by individuals, and many now contain fractional, undivided interests that belong to tribes themselves. This status of joint ownership between individuals and tribes, which this Comment refers to as "partially tribal," leads to considerable complications with respect to the scope of § 357. Courts have routinely held that land owned by a sovereign Native American tribe is not subject to state condemnation and that this principle protects tribal interests in allotments. Unresolved, however, is whether a tribal interest in an allotment-which can be as small as a fraction of 1 percent-should immunize even the nontribal interest in the plot from state condemnation proceedings. In other words, should a fractional tribal interest place an entire parcel out of the state's reach? This Comment argues that it should. The courts that have attempted to allow condemnations to proceed against partially tribal allotments run into the problem that all ownership interests in an allotment are undivided; each owner holds an undivided share of the whole parcel. This means there is no way to divide the tribal interests from the nontribal ones without effecting some kind of incursion on a tribal land interest without the tribe's or Congress's consent, a result that principles of tribal sovereignty squarely reject. This Comment recognizes that Congress's intent when it passed § 357 was to eliminate tribal landholdings, but it argues that Congress has since changed course such that courts should disregard that original intent. This Comment also concedes that diminishing eminent domain power may lead to holdout problems, though it argues that protecting tribal sovereignty is the more important interest. Consistent with the principle that states may not diminish any tribal sovereignty without Congress's consent, this Comment concludes that a state utility has multiple avenues for seeking access to a partially tribal allotment, including opportunities for negotiation with the tribe and the federal government. Courts should not permit states to use § 357 unilaterally to divest a nonconsenting tribe from its interest in land. [ABSTRACT FROM AUTHOR]

The article discusses the decision of the U.S. Supreme Court in the case "Murr v. Wisconsin." It report the court rule for what constitutes the "property" against which the owner's claimed loss is measured in takings cases where the owner possesses more than a single parcel is a confusing stew of mostly undefined factors .

When judges change the legal rules governing patents, those changes are always retroactive. That is, they apply equally to patents that have already been granted and patents that do not yet exist. There are benefits to making a change in the law retroactive, particularly if the new legal rule is an improvement over what preceded it. But there are costs as well. Retroactive changes in the law upset reliance interests. This can be particularly harmful when those reliance interests involve rights or entitlements that form the basis for substantial financial investment, as is often the case with patents. What is more, judges are aware that their decisions can do violence to existing reliance interests. This makes judges wary of making changes to patent law in the first place, which can lead to the law becoming stultified. Reducing the rate of legal change is not an adequate solution. Neither is takings law, which is commonly applied to solve similar problems that arise in the context of real property but is a poor fit for intellectual property. Rather, to ameliorate the reliance concerns generated by legal change, federal judges should be afforded the latitude to make their rulings purely prospective. And patent judges should exercise this discretion in the many cases where forward-looking change is called for but backward-looking change would do more harm than good. [ABSTRACT FROM AUTHOR]

Author's Synopsis: There are three major property tax foreclosure systems used in the United States, and one of them-the surplus retention system-prohibits former property owners from receiving the surplus from a property tax foreclosure sale. Surplus retention systems incentivize wrongdoing by allowing foreclosing governments to profit from property tax foreclosures. Surplus retention systems also have a strong negative effect on the most vulnerable people in the population because these are the people who are most likely to fall behind on property tax payments, fail to receive notice, and lose all their home equity. Finally, surplus retention systems violate the Takings Clause of the United States Constitution by allowing local governments to commit a taking for public use without providing just compensation. The states that use surplus retention systems should change their laws to allow property owners the opportunity to recover the surplus from a tax foreclosure sale. This change would be in line with the requirements of the Takings Clause and with Supreme Court decisions. Importantly, allowing property owners a chance to recover the surplus would also ensure that states are protecting their citizens’ Fifth Amendment rights by providing just compensation for a taking of property as required by the United States Constitution. [ABSTRACT FROM AUTHOR]

This Article explores the relationship between justice needs and private property in the constitutional takings provisions of the Indian, Australian, and American constitutions. Building upon established scholarship, it develops a theoretical framework within which to consider the way in which a state balances the requirement to provide minimal levels of justice for its citizens through the re-distribution of goods and resources with the need to protect the private property of individuals. We summarize this framework in what we refer to as the "Justice Needs-Protection of Private Property Continuum. " Using the framework developed, the Article provides an outline of the takings provisions found in the Indian, Australian, and American constitutions. Part I examines Article 300A of the Constitution of India, which contains the scope of the power of compulsory acquisition exercised by the Indian state. Part II assesses Section 51(xxxi) of the Australian Constitution which, unlike its American and Indian counterparts, operates as both a grant ofpower to the federal government, as well as a limitation imposed upon that power, which may, it seems, operate so as to provide some minimal protection for individual private property interests. Part III considers the Takings Clause of the Fifth Amendment to the United States Constitution which, as interpreted by the Supreme Court, provides perhaps the most robust means among the three jurisdictions considered for protecting the individual private property interests as against state takings. The Conclusion offers comparative reflections on the nature of the takings provision found in each jurisdiction. [ABSTRACT FROM AUTHOR]

The United States is in the middle of three profound energy revolutions--with booming production of renewable power, natural gas, and oil. The country is replacing coal power with renewable and natural gas power, reducing pollution while saving consumers money. And it has dramatically cut its oil imports while becoming, for the first time in half a century, an important oil exporter. The United States is on the cusp of an energy transformation that will provide immense economic and environmental benefits. This new energy economy will require massive investment in energy transport--especially power lines to bring wind and solar power to market and gas pipelines to back up these renewable sources. But increased interest from overlapping jurisdictions in energy transport approvals has resulted in delays and uncertainty that make private companies wary of long-term capital investments in new energy facilities. The drive for more careful and holistic environmental assessments of new energy facilities has also repeatedly delayed new infrastructure. And land-owners and property rights groups are increasingly asking the courts to curtail the use of eminent domain by pipeline and power-line companies. This Article develops a unified scholarly and policy approach to these high-profile threats to energy transport investment. Although most often discussed in the context of controversial oil pipelines, these threats are actually afar greater danger to investment in cleaner power sources like wind, gas, and solar. At this pivotal moment, this Article describes how reforming energy infrastructure reviews can lower the cost of investment in a new energy economy while accommodating increased public interest in pipelines and power-lines. It proposes legislation to ensure a comprehensive, thorough, and unified approval process for energy transport projects. [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. [ABSTRACT FROM AUTHOR]

Construction of the U.S-Mexico border wall remains in the media spotlight with continued debate over the balance between the wall's necessity and its potentially adverse impacts. Notwithstanding this debate, the acts providing for construction of the wall afford the federal government broad powers to disregard other federal legislation that might otherwise hinder the construction from proceeding. These acts also provide for the acquisition of land for the border wall through condemnation. Even though the federal government has survived several challenges to its exercise of eminent domain power to acquire land for the border wall, Texas lawmakers have introduced a bill in the Texas Legislature expressing specific opposition to the use of eminent domain for border wall construction. This Comment examines the potential effect of this bill by analyzing the power of the federal government to acquire state-owned lands by condemnation and uses the hypothetical construction of the U.S.-Mexico border wall in the Big Bend Ranch State Park as a modernday example. The federal-state balance of power is investigated in light of state statutes providing automatic consent to such federal actions and through a study of potential limits to the federal government's powers under both the Fifth Amendment Takings Clause and the Enclave Clause of the Constitution. This Comment finds that although the power of the federal government to procure state-owned lands might be limited only by a judicial finding that the selection of land is arbitrary and capricious, the required burden of proof on the part of the challenger presents a high threshold. Additionally, though the Takings Clause of the Fifth Amendment of the Constitution applies to the federal government when it acquires state-owned land for a public use by condemnation, the federal government is bound only to provide appropriate compensation to the state. Thus, even if passed, the opposition bill in the Texas legislature would have no effect in curtailing the powers of the federal government. Furthermore, should the federal government somehow act beyond its constitutionally-enumerated powers in condemning specific stateowned lands with consent of the state, then it would be difficult to identify a suitable plaintiff who would have the necessary standing to oppose or enjoin such actions. [ABSTRACT FROM AUTHOR]

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs--all the websites they visit, people they communicate with, emails they send, files they store, and more--law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult to justify and that are both over- and under-protective of privacy. This Article proposes a new approach to regulating government investigations of data that has been shared with ISPs--one that is inspired by a legal tool designed to achieve the very balance between public benefits and private burdens that has thus far proven elusive. This tool is the Takings Clause. Under the Takings Clause, the government can acquire private property, including intangible and intellectual property, but this wide-ranging power is disciplined by the requirement that the government pursue a public purpose and pay just compensation for the property it takes. This Article argues that adapting these features of the takings framework to govern the investigation of ISP-held data would be feasible, theoretically and doctrinally sound, and normatively desirable. In making this argument, this Article addresses one of the primary problems with the various existing mechanisms by which government conducts investigations online, which is that the costs of diminished privacy fall on the civilian targets of those investigations. The result is that law enforcement does not adequately consider these costs when making investigation decisions. Acquiring information under a takings-inspired regime, by contrast, would trigger a requirement to compensate the person whose privacy has been diminished and thus impose a direct cost on the government entity conducting the investigation. This obligation to pay would force the investigating entity to be more thoughtful about which investigations are the highest priorities, most likely to yield valuable information, and most tailored to achieve their purposes. [ABSTRACT FROM AUTHOR]

The article discusses the Patent Act in the U.S., as well as the constitutionality of the pharmaceutical regulation enacted by states to address high drug prices. Other topics include issues of federalism, the Takings Clause of the U.S. Constitution's Fifth Amendment, and the preemption doctrine in relation to the intersection of patent law and state drug rate setting statutes.