Fifth Amendment Takings

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Takings

Author : Richard A. Epstein
Publisher : Harvard University Press
ISBN 13 : 0674036557
Total Pages : 377 pages
Book Rating : 4.6/5 (74 download)

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Book Synopsis Takings by : Richard A. Epstein

Download or read book Takings written by Richard A. Epstein and published by Harvard University Press. This book was released on 2009-07-01 with total page 377 pages. Available in PDF, EPUB and Kindle. Book excerpt: If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance. Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind? Zoning, rent control, progressive and special taxes, workers’ compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein’s theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.

Fifth Amendment Takings

Author : LandMark Publications
Publisher :
ISBN 13 : 9781980381921
Total Pages : 536 pages
Book Rating : 4.3/5 (819 download)

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Book Synopsis Fifth Amendment Takings by : LandMark Publications

Download or read book Fifth Amendment Takings written by LandMark Publications and published by . This book was released on 2018-02-26 with total page 536 pages. Available in PDF, EPUB and Kindle. Book excerpt: THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding Fifth Amendment takings. * * * Governmental interference with property rights constitutes a taking if it "goes too far." Pa. Coal Co. v. Mahon, 260 U.S. 393, 412-15, 43 S.Ct. 158, 67 L.Ed. 322 (1922). The "Fifth Amendment's guarantee ... [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). The Supreme Court has recognized that there is no "'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons." Penn Central, 438 U.S. at 124, 98 S.Ct. 2646 (citing Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962)). The common touchstone of regulatory takings precedent is "to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain." Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). Reoforce, Inc. v. US, 853 F. 3d 1249 (Fed. Cir. 2017). * * * Deprivation of a property right, even if temporary, may merit just compensation under the takings clause. "[O]nce a court finds that a police power regulation has effected a 'taking,' the government entity must pay just compensation for the period commencing on the date the regulation first effected the 'taking,' and ending on the date the government entity chooses to rescind or otherwise amend the regulation." Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 328, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (quoting San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 658, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981)). This "reflect[s] the fact that 'temporary' takings which ... deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation." First English Evangelical Lutheran Church of Glendale v. Cty. of L.A., 482 U.S. 304, 318, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). Reoforce, Inc. v. US, ibid.

Constitution

Author : United States
Publisher :
ISBN 13 :
Total Pages : 66 pages
Book Rating : 4.:/5 (321 download)

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Book Synopsis Constitution by : United States

Download or read book Constitution written by United States and published by . This book was released on 1893 with total page 66 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Fifth Amendment Takings Clause

Author : LandMark Publications
Publisher :
ISBN 13 : 9781522043676
Total Pages : 560 pages
Book Rating : 4.0/5 (436 download)

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Book Synopsis Fifth Amendment Takings Clause by : LandMark Publications

Download or read book Fifth Amendment Takings Clause written by LandMark Publications and published by . This book was released on 2017-08-08 with total page 560 pages. Available in PDF, EPUB and Kindle. Book excerpt: THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss issues surrounding the Fifth Amendment Takings Clause. The selection of decisions spans from 2011 to the date of publication.The law on condemnations and physical takings, which the Supreme Court has described as "as old as the Republic," is governed by the simple rule that "[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner." Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). Thus, in physical takings cases, the analysis inevitably focuses on the public use and just compensation requirements. Rancho de Calistoga v. City of Calistoga, 800 F. 3d 1083 (9th Cir. 2015).In contrast to a physical taking, a regulatory taking occurs where "government regulation of private property [is] so onerous that its effect is tantamount to a direct appropriation or ouster." Lingle, 544 U.S. at 537, 125 S.Ct. 2074. Regulatory takings claims, such as the one here, are "of more recent vintage." Tahoe-Sierra, 535 U.S. at 322, 122 S.Ct. 1465. These claims are "characterized by essentially ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances" to determine whether a taking has occurred in the first place. Id. (citations and internal quotation marks omitted). The factors to be considered in this type of factual inquiry are laid out in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Only after it has been determined that a taking has occurred do the issues of public use and just compensation become relevant. Rancho de Calistoga v. City of Calistoga, ibid.

Litigation with the Federal Government

Author : John Montague Steadman
Publisher :
ISBN 13 :
Total Pages : 524 pages
Book Rating : 4.F/5 ( download)

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Book Synopsis Litigation with the Federal Government by : John Montague Steadman

Download or read book Litigation with the Federal Government written by John Montague Steadman and published by . This book was released on 1983 with total page 524 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book examines statutes governing actions against the federal government, such as the Tucker Act and the Federal Tort Claims Act. The expansion of attorneys' fees recovery against the U.S. made possible by the 1980 Equal Access to Justice Act is treated in detail, as are the changes in contract dispute resolution contained in the Contract Disputes Act of 1978.

The Grasping Hand

Author : Ilya Somin
Publisher : University of Chicago Press
ISBN 13 : 022645682X
Total Pages : 377 pages
Book Rating : 4.2/5 (264 download)

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Book Synopsis The Grasping Hand by : Ilya Somin

Download or read book The Grasping Hand written by Ilya Somin and published by University of Chicago Press. This book was released on 2016-11-29 with total page 377 pages. Available in PDF, EPUB and Kindle. Book excerpt: In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution—even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market. In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed. Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform.

Private Property and the Constitution

Author : Bruce Ackerman
Publisher : Yale University Press
ISBN 13 : 0300158068
Total Pages : 315 pages
Book Rating : 4.3/5 (1 download)

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Book Synopsis Private Property and the Constitution by : Bruce Ackerman

Download or read book Private Property and the Constitution written by Bruce Ackerman and published by Yale University Press. This book was released on 2008-10-01 with total page 315 pages. Available in PDF, EPUB and Kindle. Book excerpt: The proper construction of the compensation clause of the Constitution has emerged as the central legal issue of the environmental revolution, as property owners have challenged a steady stream of environmental statutes that have cut deeply into traditional notions of property rights. When may they justly demand that the state compensate them for the sacrifices they are called upon to make for the common good? Ackerman argues that there is more at stake in the present wave of litigation than even the future shape of environmental law in the United States. To frame an adequate response, lawyers must come to terms with an analytic conflict that implicates the nature of modern legal thought itself. Ackerman expresses this conflict in terms of two opposed ideal types--Scientific Policymaking and Ordinary Observing--and sketches the very different way in which these competing approaches understand the compensation question. He also tries to demonstrate that the confusion of current compensation doctrine is a product of the legal profession's failure to choose between these two modes of legal analysis. He concludes by exploring the large implications of such a choice--relating the conflict between Scientific Policymaking and Ordinary Observing to fundamental issues in economic analysis, political theory, metaethics, and the philosophy of language.

Property

Author : David Dana
Publisher :
ISBN 13 : 9781587780783
Total Pages : 0 pages
Book Rating : 4.7/5 (87 download)

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Book Synopsis Property by : David Dana

Download or read book Property written by David Dana and published by . This book was released on 2002 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: This law school study aid contains the history and cases related to the Takings Clause of the United States Constitution. The authors bring their long-time teaching experience to this important area.

Origins of the Fifth Amendment

Author : Leonard Williams Levy
Publisher : Ivan R. Dee Publisher
ISBN 13 :
Total Pages : 588 pages
Book Rating : 4.F/5 ( download)

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Book Synopsis Origins of the Fifth Amendment by : Leonard Williams Levy

Download or read book Origins of the Fifth Amendment written by Leonard Williams Levy and published by Ivan R. Dee Publisher. This book was released on 1999 with total page 588 pages. Available in PDF, EPUB and Kindle. Book excerpt: Origins probes the intentions of the framers of the Fifth Amendment.

Our Constitution

Author : Donald A. Ritchie
Publisher : Oxford University Press, USA
ISBN 13 :
Total Pages : 264 pages
Book Rating : 4.0/5 ( download)

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Book Synopsis Our Constitution by : Donald A. Ritchie

Download or read book Our Constitution written by Donald A. Ritchie and published by Oxford University Press, USA. This book was released on 2006 with total page 264 pages. Available in PDF, EPUB and Kindle. Book excerpt: WHY WAS THE CONSTITUTION NECESSARY?--WHAT KIND OF GOVERNMENT DID THE CONSTITUTION CREATE?--HOW IS THE CONSTITUTION INTERPRETED?

The Safeguard of Liberty and Property

Author : Guy F. Burnett
Publisher : Lexington Books
ISBN 13 : 0739197843
Total Pages : 177 pages
Book Rating : 4.7/5 (391 download)

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Book Synopsis The Safeguard of Liberty and Property by : Guy F. Burnett

Download or read book The Safeguard of Liberty and Property written by Guy F. Burnett and published by Lexington Books. This book was released on 2014-12-11 with total page 177 pages. Available in PDF, EPUB and Kindle. Book excerpt: In 2005, the Supreme Court ruled in Kelo v. New London that a city might take property from one private owner and transfer it to another for economic redevelopment. The ruling marked a new interpretation of the Fifth Amendment to the Constitution, and set a precedent which has raised significant questions regarding government takings and property rights. The ruling also reawakened a public interest in private property and created a vicious reaction among many citizens, journalists, academics, and legislators. This book is unique because it offers an in-depth analysis of the case law found in the opinions and decisions of the state and federal courts, but also uses a variety of other sources including the oral argument before the Supreme Court, the amicus curiae briefs, American political and legal history, as well as the personal stories of those involved in the case. This book also analyzes the public backlash from several different perspectives including opinion polls, media coverage, academic articles and commentary, subsequent case law, and legislative action. Finally, this book offers an insightful critique of the case, including what the Supreme Court got wrong, what it got right, and where the law and courts should go from here.

Nichols on Eminent Domain

Author : Julius L. Sackman
Publisher :
ISBN 13 :
Total Pages : 1084 pages
Book Rating : 4.F/5 ( download)

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Book Synopsis Nichols on Eminent Domain by : Julius L. Sackman

Download or read book Nichols on Eminent Domain written by Julius L. Sackman and published by . This book was released on 2006 with total page 1084 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Property Rights

Author : Bernard Siegan
Publisher : Routledge
ISBN 13 : 1351325949
Total Pages : 329 pages
Book Rating : 4.3/5 (513 download)

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Book Synopsis Property Rights by : Bernard Siegan

Download or read book Property Rights written by Bernard Siegan and published by Routledge. This book was released on 2018-04-24 with total page 329 pages. Available in PDF, EPUB and Kindle. Book excerpt: Property Rights: From Magna Carta to the Fourteenth Amendment breaks new ground in our understanding of the genesis of property rights in the United States. According to the standard interpretation, echoed by as lofty an authority as Supreme Court Justice Harry Blackmun, the courts did little in the way of protecting property rights in the early years of our nation. Not only does Siegan find this accepted teaching erroneous, but he finds post-Colonial jurisprudence to be firmly rooted in English common law and the writings of its most revered interpreters. Siegan conducts an exhaustive examination of property rights cases decided by state courts between the time of the ratification of the U.S. Constitution in 1788 and the adoption of the Fourteenth Amendment in 1868. This inventory, which in its sweep captures scores of cases overlooked by previous commentators on the history of property rights, reveals that the protection of these rights is neither a relatively new phenomenon nor a heritage with precarious pedigree. These court cases, as well as early state constitutions, consistently and repeatedly embraced key elements of a property rights jurisprudence, such as protection of the privileges and immunities of citizens, due process of law, equal protection under the law, and prohibitions on the taking of property without just compensation. Case law provides overwhelming evidence that the American legal system, from its inception, has held property rights and their protection in the highest regard.The American Revolution, Siegan reminds us, was fought largely to affirm and protect private property rights-that is, to uphold the "rights of Englishmen"-even if it meant that the colonists would cease being Englishmen. John Locke and other great theoreticians of property rights understood their importance, not only to individuals who happened to possess property, but to the preservation of a free society and to the prosperity of its inhabitants. Siegan's contribution to this venerable tradition lies in his faithful reconstruction of our legal history, which allows us to see just how central property rights have been to the American experiment in liberty-from the very beginning.

The Endangered Species Act (ESA) and Claims of Property Rights "takings"

Download The Endangered Species Act (ESA) and Claims of Property Rights

Author : Robert Meltz
Publisher :
ISBN 13 :
Total Pages : 19 pages
Book Rating : 4.:/5 (15 download)

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Book Synopsis The Endangered Species Act (ESA) and Claims of Property Rights "takings" by : Robert Meltz

Download or read book The Endangered Species Act (ESA) and Claims of Property Rights "takings" written by Robert Meltz and published by . This book was released on 2008 with total page 19 pages. Available in PDF, EPUB and Kindle. Book excerpt: This report discusses Endangered Species Act (ESA) that has long been one of the major flash points in the "property rights" debate. This report first outlines the ESA provisions most relevant to the act's impacts on private property, then surveys the major ESA-relevant principles of Fifth Amendment takings law, and finally discusses the court decisions adjudicating whether government measures based on the ESA effect a taking of property under the Fifth Amendment

Private Property Rights Implementation Act of 2005

Author : United States. Congress. House. Committee on the Judiciary. Subcommittee on the Constitution
Publisher :
ISBN 13 :
Total Pages : 280 pages
Book Rating : 4.F/5 ( download)

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Book Synopsis Private Property Rights Implementation Act of 2005 by : United States. Congress. House. Committee on the Judiciary. Subcommittee on the Constitution

Download or read book Private Property Rights Implementation Act of 2005 written by United States. Congress. House. Committee on the Judiciary. Subcommittee on the Constitution and published by . This book was released on 2006 with total page 280 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Property Rights and the Constitution

Author : Dennis J. Coyle
Publisher : State University of New York Press
ISBN 13 : 1438400004
Total Pages : 406 pages
Book Rating : 4.4/5 (384 download)

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Book Synopsis Property Rights and the Constitution by : Dennis J. Coyle

Download or read book Property Rights and the Constitution written by Dennis J. Coyle and published by State University of New York Press. This book was released on 1993-07-01 with total page 406 pages. Available in PDF, EPUB and Kindle. Book excerpt: Controversies over public regulation of private land have dominated political agendas in recent years, especially at the local level. Land use and environmental regulation have reached unprecedented levels, and federal and state courts have garnered recent headlines by striking down regulations. Rights and regulations are on a collision course, and how they are reconciled will have a major impact on individuals, governments, and communities in the decades ahead. This book is the first systematic attempt to assess key constitutional developments in the land use field during the last decade in state and federal supreme courts. It highlights important trends, including the growing role of state supreme courts, attacks on regulation as exclusionary, and the emergence of the takings clause of the Fifth Amendment as a potentially major limitation on governmental power.

The Contract Clause

Author : James W. Ely, Jr.
Publisher : University Press of Kansas
ISBN 13 : 0700623078
Total Pages : 384 pages
Book Rating : 4.7/5 (6 download)

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Book Synopsis The Contract Clause by : James W. Ely, Jr.

Download or read book The Contract Clause written by James W. Ely, Jr. and published by University Press of Kansas. This book was released on 2016-10-28 with total page 384 pages. Available in PDF, EPUB and Kindle. Book excerpt: Few provisions of the American Constitution have had such a tumultuous history as the contract clause. Prompted by efforts in a number of states to interfere with debtor-creditor relationships after the Revolution, the clause—Article I, Section 10—reads that no state shall “pass any. . . Law impairing the Obligation of Contracts.” Honoring contractual commitments, in the framers' view, would serve the public interest to encourage commerce and economic growth. How the contract clause has fared, as chronicled in this book by James W. Ely, Jr., tells us a great deal about the shifting concerns and assumptions of Americans. Its history provides a window on matters central to American constitutional history, including the protection of economic rights, the growth of judicial review, and the role of federalism. Under the leadership of Chief Justice John Marshall, the Supreme Court construed the provision expansively, and it rapidly became the primary vehicle for federal judicial review of state legislation before the adoption of the Fourteenth Amendment. Indeed, the contract clause was one of the most litigated provisions of the Constitution throughout the nineteenth century, and its history reflects the impact of wars, economic distress, and political currents on reading the Constitution. Ely shows how, over time, the courts carved out several malleable exceptions to the constitutional protection of contracts—most notably the notion of an inalienable police power—thus weakening the contract clause and enhancing state regulatory authority. His study documents the near-fatal blow dealt to the provision by New Deal constitutionalism, when the perceived need for governmental intervention in the economy superseded the economic rights of individuals. Though the 1970s saw a modest revival of interest in the contract clause, the criteria for invoking it remain uncertain. And yet, as state and local governments try to trim the benefits of public sector employees, the provision has once again figured prominently in litigation. In this book, James Ely gives us a timely, analytical lens for understanding these contemporary challenges, as well as the critical historical significance of the contract clause.