Real Estate & Property Law

Friday Round-Up: Takings Ripeness, Defining "Hawaiian" Cultural Practices, Penn Central, and Judicial Takings

By Robert Thomas

What we're reading today:

• Tennessee Supreme Court Makes It Official: The U.S. Supreme Court Misread Tennessee Law in the Williamson County Case - Gideon Kanner on the latest twist in the regulatory takings ripeness mess. If you understand what the title means, you need to read this.

• A divided opinion in State v. Pratt - balancing customary native Hawaiian practices against State regulatory interests - from Charley Foster at Planet Kauai. A discussion of the Hawaii Intermediate Court of Appeals' fractured opinions in a case trying to define  what is a native Hawaiian cultural practice. Its a criminal case, but one that every Hawaii land lawyer needs to read. Charley reviewed the earlier oral arguments in the case in Fighting over the meaning of the native Hawaiian rights defense in the Kalalau Valley.

• Luke A. Wake and R.S. Radford have posted Deciphering and Extrapolating: Searching for Sense in Penn Central on SSRN ("Penn Central ... is considered the "pole star" of regulatory takings law, but it offers little, if any, guidance for courts reviewing takings claims. ... In this article, we examine the development of the Penn Central balancing test, and the difficulties raised in its application. We explore some of the latest issues courts have been struggling with in fleshing out the doctrine, and offer a proposed road map for resolving those questions. In doing so, we also highlight several cases pending before appellate courts, which may warrant a grant of certiorari if the Roberts Court is willing to consider bringing clarity and cohesion to our takings law.").

• Lawprof Timothy M. Mulvaney has posted The New Judicial Takings Construct on SSRN. Following up on the U.S. Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Env. Protection.

Full post as published by inversecondemnation on January 27, 2011 (boomark / email).