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Unalienable Rights Foundation
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Welcome to Unalienable Rights Foundation!


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Unalienable Rights Foundation: Eminent Domain

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 Eminent Domain Abuse Press Conference

Eminent  Domain

Eminent  Domain  Abuse

Press Conference

1069 W. 41st Street

Norfolk / VA

2 p.m.

VIA

Law Firm of

Waldo & Lyle




Posted by editor on Thursday, September 12 @ 05:20:31 MST (15369 reads)
(Read More... | Score: 0)


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 The Spurious Constitutional Distinction Between Takings and

Eminent  Domain New Page 1

December 2010 11

The Spurious Constitutional Distinction Between Takings and

Regulation

By Richard A. Epstein*

Toward a Unitary Theory of Takings

The major question that I shall address in this short

talk concerns a fundamental fault line that is widely

embraced in modern American constitutional law.

My task is to figure out whether the American constitutional

law of takings has a uniform architecture that applies with

equal force to cases of government occupation in so-called

"physical takings" cases and government regulation in so-called

"regulatory takings" cases. For these purposes, I shall confine

my attention to real property, and thereby ignore such critical

issues as financial rate regulation of public utilities on the one

hand or the regulation of intellectual property on the other. In

the land context, the difference between these two scenarios is

usually not that hard to observe in most settings. A physical

taking is said to occur when the government occupies land that

was once in the possession of some private party. Or, in the

alternative, the government issues an order that allows some

private party to enter the land under its authorization. The

pivot point is found whenever an owner is allowed to remain

in possession, but is forced to share that possession with either

the government, or again, private parties who enter under

government authorization.1

On the other side of the line fall those cases of regulatory

takings in which the government leaves an individual in

undisturbed exclusive possession of his or her own property, but

nonetheless imposes restrictions on land use or land disposition

above and beyond those imposed under the common law. This

last qualification about the common law has two functions.

The first is to make clear that restrictions on nuisance-like

behavior do not require compensation. The second is to insure

that certain common law restraints on alienation like the rule

against perpetuities are not swept into the analysis.

To challenge the present divide between occupation and

regulation is to ask whether the rules of private law must be

carried over into the constitutional analysis of the Takings

Clause that makes explicit reference to it: "Nor shall private

property be taken for public use, without just compensation."

As a matter of private law, an owner of property can enter into

two kinds of transactions. The first might be called "clean" deals

in which there is an outright transfer of ownership from one

person to another, such that at the end of the day the original

owner stands in no better position against his transferee than

does a total stranger. That is just the position that all people

would be in if they tried to reenter a house that they have just

* Laurence A. Tisch Professor of Law, New York University School of Law,

The Peter and Kirsten Bedford Senior Fellow, The Hoover Institution,

Senior Lecturer, the University of Chicago.

......................................................................

sold. On the other side are complex details in which voluntary

transactions created divided interests in property. Private

property can be divided at any given point in time by creating

joint tenancies and tenancies in common. It can be divided

spatially to include mineral rights, surface rights, and air rights.

It can be divided on the plane of time, so that different persons

hold a variety of present and future interests. Private property

can be divided between an owner who keeps the equity of

redemption and a lender that has a lien on property. Moving

outward, private property can be divided between neighbors

through the law of servitudes, which includes restrictive

covenants on the one side and easements on the other. The great

flexibility within this system allows any given owner or group of

owners to enter into, simultaneously or sequentially, multiple

types of transactions on the same underlying asset. Nothing

is more common than joint owners taking out a mortgage on

property over which a neighbor has a right of way.

The central analytical challenge is to determine the status

of these divided interests under the Takings Clause. Does each

component of the original property retain the full measure of

protection, an equal dignity of right, with the original whole

of which it was a part? Or does the fragmentation of property

interests carry with it the implicit price that the holders of the

separate pieces receive less protection from government action

than the individual who retains possession of the entirety?

To give a concrete example, what happens when the

government decides to impose a height restriction by public

fi at? Should that regulation be analogized to the identical

restrictive covenant that a group of neighbors want to impose

upon the land? Privately, of course, the neighbors would be able

to obtain that height restriction only voluntarily. Typically they

would be required to pay for what they received. Normally these

transactions are not made for cash. Rather, they are imposed as

part of a common unit development by a common landlord,

in which the reciprocal nature of the obligations coupled with

appropriate adjustments in the sales price ensure that each


Posted by david on Monday, January 31 @ 21:36:13 MST (4636 reads)
(Read More... | 59390 bytes more | Score: 0)


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 Regulatory Takings and Private Property Rights

Eminent  Domain
The Federalist Society
 
 

Regulatory Takings and

Private Property Rights 

Featuring Prof. Richard A. Epstein** 


 

Tuesday, February 1, 2011

 at 4:00 p.m. (EST)

1-888-632-4541
 

No registration is necessary.

To participate on the conference call, please dial in to 1-888-632-4541
 on Tuesday, February 1, at 4:00 p.m. (EST) via telephone.   
 
 

Prof. Richard A. Epstein will be discussing the constitutional law relating to regulatory takings, where the government imposes burdens on private property through the use of its regulatory powers. After his initial remarks, the speaker will answer questions from call participants. One focus of the discussion will be Prof. Epstein's article from the latest issue of Engage titled "The Spurious Constitutional Distinction Between Takings and Regulation," which is based on a speech Prof. Epstein gave during a debate on regulatory takings with Dean William M. Treanor at the Fordham University School of Law.
 
The Spurious Constitutional Distinction Between Takings and Regulation
by Richard A. Epstein
Engage, Volume 11, Issue 3
 
The major question that I shall address in this short talk concerns a fundamental fault line that is widely embraced in modern American constitutional law. My task is to figure out whether the American constitutional law of takings has a uniform architecture that applies with equal force to cases of government occupation in so-called "physical takings" cases and government regulation in so-called "regulatory takings" cases. For these purposes, I shall confine my attention to real property, and thereby ignore such critical issues as financial rate regulation of public utilities on the one hand or the regulation of intellectual property on the other. In the land context, the difference between these two scenarios is usually not that hard to observe in most settings. A physical taking is said to occur when the government occupies land that was once in the possession of some private party. Or, in the alternative, the government issues an order that allows some private party to enter the land under its authorization. The pivot point is found whenever an owner is allowed to remain in possession, but is forced to share that possession with either the government, or again, private parties who enter under government authorization. Read on...

**Richard A. Epstein is the inaugural Laurence A. Tisch Professor of Law at NYU Law School. Prior to his joining the faculty, he was a visiting law professor at NYU from 2007 through 2009, when he was the James Parker Hall Distinguished Service Professor of Law at the University of Chicago. Epstein also has served as the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution since 2000. His initial law school appointment was at the University of Southern California from 1968 to 1972. Epstein received an LL.D., h.c. from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and has been a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991-2001, From 2001 to 2010 he was a director of the John M. Olin Program in Law and Economics at the University of Chicago.

The Federalist Society
1015 18th Street, NW, Suite 425
Washington, District of Columbia 20036
202-822-8138   www.fed-soc.org

To review other articles from Engage, Volume 11, Issue 3, please visit our website here.  To receive updates on topics pertaining to other areas of law, please click here.


Posted by david on Monday, January 31 @ 21:01:28 MST (1465 reads)
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 Sotomayor, Socialism, Fascist and Empathy For Screw You

Eminent  Domain Sotomayor and Screw You

"As Naked an Abuse of Government Power as Could be Imagined"

How the Sotomayor nomination revived the debate over eminent domain abuse

Damon W. Root | June 25, 2009

Property rights were probably the last thing on President Barack Obama's mind when he selected Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter. But that hasn't stopped Sotomayor's nomination from reigniting the long-simmering national debate over the use and abuse of eminent domain.

The controversy centers on Sotomayor's vote in a 2006 eminent domain case, Didden v. Village of Port Chester. New York entrepreneur Bart Didden says Port Chester condemned his land after he refused to pay $800,000 (or grant a 50 percent stake in his business) to a developer hired by the village. One day after Didden refused to pay those bribes, Port Chester began eminent domain proceedings against him.

As University of Chicago law professor Richard Epstein put it, "The case involved about as naked an abuse of government power as could be imagined." But that didn't stop Judge Sotomayor and two of her colleagues on the 2nd Circuit Court of Appeals from upholding the district court decision that ruled in favor of the village.


Posted by david on Sunday, June 28 @ 07:20:40 MST (1604 reads)
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 Texas Clamps Down on Eminent Domain

Eminent  Domain

AUSTIN, Texas — State and local governments would face new limits to when they can take private property, under a proposed constitutional amendment passed Monday by the Texas Senate.

The amendment would ban taking property and giving it to a private group or developer "for the primary purpose of economic development or enhancement of tax revenues."

Supporters say the amendment would boost private property rights. But it also faces critics who say it could hamstring major public improvements, such as new airport development, and from some private property advocates who say it doesn't go far enough to protect landowners.

The amendment passed the Senate on a unanimous vote and now goes to the House, which is considering a separate amendment. If approved there, it would go before Texas voters in November.

In 2005, the U.S. Supreme Court ruled in Kelo et al v. City of New London that cities can seize homes under eminent domain for use by private developers. Texas lawmakers in 2005 passed a law to protect taking private land for economic development or private purposes, but critics have said it left too many loopholes.

Gov. Rick Perry and U.S. Sen. Kay Bailey Hutchison have both weighed in on eminent domain, signaling the likelihood that it will be a campaign issue in their 2010 Republican primary.

Hutchison has said state government is ignoring private property rights in a quest to cover the state with toll roads. Perry, who vetoed an eminent domain bill in 2007, has said he wants a state constitutional amendment to protect land owners from abuses.

Sen. Robert Duncan, R-Lubbock, sponsor of the amendment, said the Kelo case created a "major uproar in this country over the inappropriate use of eminent domain."

Duncan said his plan would give private property owners protections while still allowing governments to pursue major projects such as sports stadiums and airports.

"The intent here is to very clearly put a check and balance on government entities," Duncan said.


Posted by david on Tuesday, May 12 @ 15:59:58 MST (1446 reads)
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 Norfolk trying to steal private land

Eminent  Domain Norfolk trying to steal private land in name of progress

Norfolk trying to steal private land in name of progress

February 23, 2009
The Virginia News Source

Robert Dean says,

Filthy McNasty is back at the marriage alter with Old Dominion University.  Eminent domain's ugly head is rising... again!

Just when you thought your local elected officials and government bureaucrats had finally read the Virginia Constitution and would swear to protect the rights of private property owners, condemnation (also-known-as Filthy McNasty) is raising its ugly head... again.  Once again it's in Norfolk, and once again the culprit is their now-infamous Norfolk Redevelopment and Housing Authority (NRHA).

Just about three years ago, great Americans just like you responded to the outrage by the attempt of the NRHA to condemn private property for a parking area for the employees of Coke-Cola.

Posted by david on Tuesday, February 24 @ 00:03:17 MST (1679 reads)
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 Delegate Phil Hamilton's (93rd) office says, ''I do not support increasing gove

Eminent  Domain Delegate Phil Hamilton's (93rd) office says, "I do not support increasing government's power to take private property."

Breaking News UARF:
February 02, 2008; 10:15: p.m.
Virginia Beach - Virginia
  Delegate Phil Hamilton's (93rd) office  says, "I do not support increasing government's power to take private property."

In a response to an email Toni Trepanier of Hallwood, Virginia sent to Virginia Delegates:

To all Virginia Delegates,

 As a registered voter Accomack County, I respectfully request that you do
 NOT support this amendment.

 I feel this amendment violates the fundamental principal of land rights and
 agree with the attachment from  UARF. Elephants are eaten, one bite at a time.
 Please vote NO.

I sincerely appreciate your response and knowing your position regarding
this issue.

Delegate Hamilton's office  responded:

I do not support increasing government's power to take private property.

 Phillip Hamilton


 - Staff
 Mike Hazlewood
 Delegate Phil Hamilton (93rd)
 



 


Posted by DAVID on Monday, February 02 @ 10:12:40 MST (1736 reads)
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