Takings of Private Property for Public Use

How Long are Horne's Horns? - Podcast

Environmental Law & Property Rights Practice Group Podcast
John D. Echeverria, Michael W. McConnell October 02, 2015

In Horne v. U.S. Department of Agriculture, eight justices of the Supreme Court agreed that a governmental taking of personal property, just like real property, was a compensable taking under the Fifth Amendment. In Horne, the government took physical control of parts of the Horne's raisin crop, withholding it from the market in order to influence raisin prices. Under other agricultural programs, growers are permitted to send to market only certain quantities of the produce, though the government never takes physical control of the goods. Just how sweeping is the Horne decision? Does it apply to all forms of personal property? What level of control must the government exercise over personal property in order for there to be a compensable taking? Are these other agricultural programs now suspect?


  • Prof. John D. Echeverria, Vermont Law School
  • Hon. Michael W. McConnell, Professor of Law and Director, Stanford Constitutional Law Center, Stanford Law School

Hands Off My Raisins: Supreme Court Decides Horne v. Department of Agriculture - Podcast

Environmental Law & Property Rights Practice Group Podcast
John Elwood June 25, 2015

Under what circumstances can the government take your property without giving you compensation? Does it matter whether it is real property or personal property? On June 22, with an interesting alignment of justices, the U.S. Supreme Court decided Horne v. Department of Agriculture, addressing these and other questions.

  • John Elwood, Partner, Vinson & Elkins LLP

The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain - Podcast

Environmental Law & Property Rights Practice Group Podcast
Richard A. Epstein, Ilya Somin June 05, 2015

On June 23, 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution. In his new book, published by the University of Chicago Press, The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain, Prof. Ilya Somin argues that the closely divided 5-4 ruling in Kelo was a grave error. Prof. Somin provides a detailed study of the case, as well as of the new laws intended to limit the use of eminent domain passed in forty-five states during the political backlash following the decision, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform.

With the 10th anniversary of the Kelo decision approaching, Prof. Somin joined a Teleforum program to discuss the book, with Prof. Richard Epstein joining to offer his comments.

  • Prof. Ilya Somin, Author, The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain, and Professor of Law, George Mason University School of Law
  • Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York 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.

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