September 21, 2015

New article published on novel takings claims

By James S. Burling Vice President for Litigation

The Brigham-Kanner Property Rights Conference Journal, under the auspices of the William & Mary Law School, has published my paper: Novel Takings Theories: Testing the Boundaries of Property Rights Claims.  A lot of what passes for standard takings theory today would have been summarily rejected a generation or two ago.  Who could have complained when the government showed up with trucks to haul off half of a farmer’s raisins?  Who could dispute the government’s right to demand tribute in exchange for a permit?  Or, who could not argue that there’s been a taking when the government sends a satellite over one’s home?  The point is, today we’re pretty sure the first two examples are takings, but the last one is not.

What separates a well-accepted takings claim today, even if it might not have been been cognizable a generation or two ago, from a claim that is frivolous? This paper argues that novelty in takings claim can be good and transformative — but only when 1) there are good and sympathetic facts that lay bare the realities of the burdens imposed by government regulation on ordinary citizens, 2) there are some well-honed theories in support of government liability and 3) there is some intellectual respectability for those theories.  Good advocacy also helps.

For more discussion, and examples of novel takings claims and frivolous claims alike, read the paper at the above link or via SSRN here.

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