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Takings of Private Property for Public Use

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

Environmental Law & Property Rights Practice Group Courthouse Steps Teleforum Wednesday, April 22, 03:00 PMFederalist Society Teleforum Conference Call

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 will hear oral arguments on April 22, and answer 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

Residual Class Action Awards: Cy Pres - Podcast

Litigation Practice Group Podcast
Brian T. Fitzpatrick, Theodore H. Frank March 21, 2014

gavel money

Cy pres (from the French cy pres comme —“as near as possible”) originated in the trust context, but has more recently been applied to class action litigation, as courts try to determine what to do with sometimes significant amounts of settlement funds remaining after all identified plaintiff awards have been made.  In recent decades, courts have agreed to award such remaining funds to third party recipients who, while not parties to the underlying suits, are deemed worthy by the court.  Sometimes, the courts have selected these third party recipients based on recommendations from the attorneys representing the plaintiffs.  What are the legal underpinnings for such awards to entities or people not party to the underlying case?  What are the policy considerations in making or prohibiting such awards?  These and other questions were discussed by our experts.

Featuring:

  • Prof. Brian T. Fitzpatrick, Vanderbilt University Law School
  • Mr. Theodore H. Frank, Founder and President, Center for Class Action Fairness and Adjunct Fellow, Manhattan Institute Center for Legal Policy

[Listen now!]

Communications Act Reform - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Shawn H. Chang, Randolph J. May, David Redl March 19, 2014

communications dish

In December 2013, Rep. Fred Upton, House Energy and Commerce Committee Chairman, and Rep. Greg Walden, Chairman of the Committee's Communications and Technology Subcommittee, announced plans to use 2014 to begin a review process leading to an update of the Communications Act of 1934.  Rep. Walden announced in a news release that the committee plans “to look at the Communications Act and all of the changes that have been made piecemeal over the last 89 years and ask the simple question: ‘Is this working for today’s communications marketplace?’”  The statute has not been changed in any material way since 1996, when the internet was just beginning to be used on a widespread basis and broadband services were only then emerging.

The participants in this Teleforum addressed fundamental questions, such as: whether an update to the Communications Act is needed and why; if an update is desirable, what a new Communications Act should like, including, more specifically, how the structure of the act should be changed along with the jurisdiction of the Federal Communications Commission.

Featuring:

  • Mr. Shawn H. Chang, Majority Counsel, Communications and Technology Policy, Committee on Energy and Commerce, United States House of Representatives
  • Mr. Randolph J. May, President, The Free State Foundation
  • Mr. David Redl, Chief Counsel for Communications and Technology, Committee on Energy and Commerce, U.S. House of Representatives

[Listen now!]