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Property Rights

Justice Scalia's Property Rights Jurisprudence - Event Audio/Video

2016 National Lawyers Convention
John D. Echeverria, James W. Ely, Roderick M. Hills, Adam Laxalt, Ilya Somin, Allison Eid, Jeffrey Bossert Clark November 24, 2016

In his nearly 30 years on the Court, Justice Scalia left a profound mark on many areas of the law, including property rights. From his seminal decisions in Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council to his frequent questioning at oral argument, Justice Scalia helped define the relationship between property and the Constitution. While his critics have suggested that Justice Scalia's property rights jurisprudence manifested a willingness to engage in “judicial activism," others have defended Scalia's approach as consistent with original understandings of the text of the Constitution.

This panel will address Justice Scalia's influence on constitutional understandings of property rights. Professor Ely has written extensively on the historical understandings of property rights including the popular book, The Guardian of Every Other Right: A Constitutional History of Property Rights. Professor Somin's recently published The Grasping Hand: "Kelo V. City of New London" and the Limits of Eminent Domain explores one of the Court's most notorious departures from the protection of property rights. Professor Hills is a renowned expert on the law of land use planning and has taken a more charitable view of the power of government to control the use of property. He is a co-author of Land Use Controls: Cases and Materials. The panel will be moderated by Justice Allison Eid, from the Colorado Supreme Court.

Environmental Law & Property Rights: Justice Scalia's Property Rights Jurisprudence
11:00 a.m. – 12:30 p.m.
East Room

  • Prof. John Echeverria, Professor of Law, Vermont Law School
  • Prof. James W. Ely, Jr., Milton R. Underwood Professor of Law Emeritus, Professor of History Emeritus, Lecturer in Law, Vanderbilt Law School
  • Prof. Roderick M. Hills, Jr., William T. Comfort, III Professor of Law, New York University School of Law
  • Hon. Adam P. Laxalt, Attorney General, Nevada
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
  • Moderator: Hon. Allison H. Eid, Colorado Supreme Court
  • Introduction: Mr. Jeffrey Bossert Clark, Partner, Kirkland & Ellis LLP

The Mayflower Hotel
Washington, DC

Midnight Monuments: The Antiquities Act and the Executive Authority to Designate National Monuments - Podcast

Environmental Law and Property Rights Practice Group Podcast
Donald J. Kochan, Charles Wilkinson September 26, 2016

The Antiquities Act of 1906 provides, in part, that “The President may, in the President's discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” 54 U.S.C. §320301(a). Declaring a national monument brings substantial new layers of protected status to the areas or thing so designated, precluding many previously-authorized uses of the area or thing as well. To varying degrees, U.S. Presidents have exercised this authority both during the regular course of their administration and sometimes with heightened vigor at the end, or “midnight hour,” of their final term. Our experts examined the historic use of the Antiquities Act authority and particularly the phenomena of “midnight monument” designations across administrations, including those already completed or anticipated by the now-outgoing Obama Administration. Their analysis included a discussion of the controversial proposal to designate a Bears Ears national monument in Utah in the coming weeks, the historically large expansion in August of the Papahānaumokuākea Marine National Monument to 582,578 square miles of land and sea, the September 15 designation of the Northeast Canyons and Seamounts Marine National Monument, and more.

Featuring:

  • Prof. Donald J. Kochan, Professor and Associate Dean for Research and Faculty Development, Chapman University School of Law
  • Prof. Charles Wilkinson Distinguished Professor, Moses Lasky Professor of Law History and Society in the American West; Indian Law; Public Land Law; Water Law, University of Colorado Law School

The New Trail of Tears: How Washington Is Destroying American Indians - Podcast

Environmental Law & Property Rights Practice Group Podcast
Naomi Schaefer Riley, Timothy Sandefur September 07, 2016

Native Americans on reservations suffer higher rates of crime, addiction, alcoholism, and poverty than any other group of Americans. In her new book The New Trail of Tears: How Washington Is Destroying American Indians, journalist Naomi Schaefer Riley examines the dismal situation—and the rays of hope—and shows how the cycles of poverty, addiction, crime, and family breakdown are perpetuated by government policies. “Indians,” writes Riley, “have chosen civilization; now it’s time for America to make them equal Americans.” With commentary by the Goldwater Institute Vice President for Litigation, Timothy Sandefur, our Teleforum looked at the legal and political problems that plague the more than 500 reservations in North America.

Featuring:

  • Naomi Schaefer Riley, New York Post columnist, author of The New Trail of Tears: How Washington Is Destroying American Indians
  • Commentary by: Timothy Sandefur, Vice President for Litigation, Goldwater Institute 

Pipeline Takings: When Can Your Property Be Taken? - Podcast

Environmental Law & Property Rights Practice Group Podcast
Alexandra Klass, Ilya Somin August 29, 2016

The use of eminent domain to condemn property for pipelines has become an increasingly controversial practice. Critics claim that it undermines private property rights and causes environmental damage. Defenders argue it is essential to enable effective exploitation of the nation's energy resources. In recent months, Georgia and South Carolina have passed new legislation limiting pipeline condemnations, an effort backed by a coalition of conservative property rights advocates and left of center environmentalists. Similar reforms have been proposed in many other states. This forum examined the growing controversy over pipeline takings.

Featuring:

  • Prof. Alexandra Klass, Distinguished McKnight University Professor, University of Minnesota Law School
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Protecting Property Rights in the Sharing Economy - Podcast

Environmental Law & Property Rights Practice Group Podcast
Grady Gammage, Christina Sandefur July 15, 2016

On June 1, Arizona Governor Doug Ducey signed legislation prohibiting local and municipal governments from banning Internet-based “sharing economy” rental services like Airbnb and VRBO, which connect travelers with short-term vacation rentals. Property rights advocates have applauded the legislation, claiming that cities across the country have been banning private short-term rentals without legitimate justification, turning responsible property owners into outlaws simply because they allow guests to stay in their homes. Opponents assert that allowing commercial sharing-economy hosts to operate what they characterize as “illegal hotels” is unfair to conventional hotel operators who are forced to compete on an uneven playing field, as well as to property owners who may suddenly find their buildings and neighborhoods filled with busy rental properties. Our experts discussed the legislation and broader issues relating to property rights and the sharing economy.

Featuring:

  • Grady Gammage, Jr., Founding Member, Gammage & Burnham PLC
  • Christina Sandefur, Executive Vice President, Goldwater Institute