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Environmental Law & Property Rights

Little Pink Houses: The Kelo Decision and Its Impact on Us and Our Future

Phoenix Lawyers Chapter Wednesday, June 17, 09:00 AMThe Scottsdale Plaza Resort
7200 North Scottsdale Road
Paradise Valley, AZ 85253

Session 1
From New London to Jerome, There's No Place Like Home: Post-Kelo Property Rights - Christina Sandefur
Session 2
Eminent Scam: How Central Planners Run Roughshod Over Property Rights - Steve Greenhut, columnist -- U-T San Diego
Session 3
Keynote Address  - Attorney General Mark Brnovich
Session 4
Debate -- After Kelo: Next "Frontiers" in Private Property Rights - Tim Keller, Institute for Justice, & Cameron Artigue, Gammage & Burnham with moderator Kory Langhofer, Phoenix Fed Soc Vice President

Hana Financial v. Hana Bank - Post-Decision SCOTUScast

SCOTUScast 5-11-15 featuring Michael Risch
Michael Risch May 11, 2015

On January 21, 2014, the Supreme Court issued its decision in Hana Financial, Inc. v. Hana Bank. This trademark case involved a rule called "tacking", which permits the owner of a trademark to modify the trademark without losing the priority established by being the first user of the trademark. Tacking, however, is only permitted as long as the modified trademark establishes "the same, continuing commercial impression so that consumers consider both as the same mark."

The question in this case was whether the judge or the jury should determine whether a consumer would consider the original trademark and the modified trademark to be the same.

In an opinion delivered by Justice Sotomayor, the Court unanimously held that the jury, rather than a court, should determine whether the use of an older trademark may be tacked to a newer one.  The judgment of the Ninth Circuit was affirmed.

To discuss the case, we have Michael Risch, who is a Professor of Law at the Villanova University School of Law.

Horne v. Department of Agriculture - Post-Argument SCOTUScast

SCOTUScast 4-24-15 featuring John Elwood
John Elwood April 24, 2015

On April 23, 2015, the Supreme Court heard oral argument in Horne v. Department of Agriculture. This case presents three questions. The first is whether the government is required by the Fifth Amendment to pay just compensation when seizing personal property as it must do for real property. The second question is whether the government is exempt from paying just compensation when it seizes personal property if the owner of the property maintains a "contingent interest" in a share of the value of the property. The third question is whether the government's requirement that property owners hand over specific property in order to be permitted to put their crop on the market amounts to a taking.

To discuss the case, we have John Elwood, who is a partner in the Washington, DC office of Vinson&Elkins.

Murray Energy: The Limits of EPA Authority - Podcast

Environmental Law & Property Rights Practice Group Podcast
Robert R. Gasaway April 24, 2015

In what has become a highly visible challenge to the EPA’s authority under the Clean Air Act, the D.C. Court of Appeals heard oral argument on April 16, 2015. The case is being viewed by some as a fundamental test of executive authority and the judiciary’s willingness to evaluate and rein in possible overreach. Is the rule, now in proposed form, ripe for challenge, at least in part because compliance with the rule requires a great deal of planning and expense even before its adoption? Has the EPA overreached and, if so, will the court intervene? Or has the EPA properly utilized its statutory rulemaking authority for what all parties indicate will be an important change in the way coal-fired power plants are able to operate?

  • Robert R. Gasaway, Partner, Kirkland & Ellis LLP

Raisin Growers Back in the Supreme Court – Horne v. USDA - Podcast

Environmental Law & Property Rights Practice Group Podcast
John Elwood April 23, 2015

Under the Agricultural Marketing Agreement Act of 1937, the USDA has authority to regulate the sale of certain agricultural products, including California-grown raisins, through the use of “marketing orders.” The marketing order specific to California-grown raisins directs the Raisin Administrative Committee, a branch of the USDA, to establish a yearly raisin tonnage reserve requirement. Every year in February, raisin farmers are told what percentage of their crop is the “reserve requirement” they must turn over to the Committee. Failure to comply results in fines and penalties. In 2002 and 2003, the Horne family refused to comply and was fined over $700,000. In a 2013 decision, the United States Supreme Court unanimously held that regulated entities cannot be compelled to pay regulatory fines before they may contest their constitutionality, under the Fifth Amendment’s protection against uncompensated government seizure of private property (the Takings Clause). On remand in Horne, the federal district court and the Ninth Circuit Court of Appeals found that there was no taking. The Supreme Court heard oral arguments on April 22, 2015, and considered three questions: (1) Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property” applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

  • John Elwood, Partner, Vinson & Elkins LLP