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Takings of Private Property for Public Use

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

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

Taking Private Property? Examining the Patent Review Process - Podcast

Intellectual Property Practice Group Podcast
Gregory Dolin, Camilla Hrdy, David S. Olson, Ben Picozzi July 14, 2016

The 2011 America Invents Act created provisions for Inter Partes Review (“IPR”) and Post Grant Review (“PGR”) of patents. According to PTO statistics, to date, nearly 50,000 patent claims have been challenged under IPR, and nearly 11,000 (22.4%) of those claims have been invalidated. On June 20, 2016, in Cuozzo Speed Technologies v. Lee, the Supreme Court upheld the Patent Trial and Appeal Board's (PTAB) interpretation of two key elements of IPR. The Court held that (1) decisions to institute IPR proceedings are non-appealable, and (2) the PTO has the authority to determine claim meaning and validity under its “broadest reasonable construction” standard.

Important outstanding questions about the constitutionality of IPR and PGR remain, however. Specifically, once the Patent and Trademark Office has granted a patent, does a decision made by an administrative judge within the executive branch to invalidate the patent under IPR/PGR amount to a taking under the 5th Amendment of the U.S. Constitution? Moreover, does such a procedure by which issued patents are reviewed for validity by non-Article III judges raise separation of powers issues?

Professor Greg Dolin participated in the Teleforum to elucidate the argument that he and Irina Manta make in their recent article, Taking Patents, that PGR and IPR decisions invalidating patents do indeed amount to takings under the 5th Amendment. Professor Camilla Hrdy and Yale Information Society Law Project Fellow Ben Picozzi believe that PTAB decisions invalidating patents under IPR and PGR do not raise takings problems. These patent experts also discussed separation of powers issues related to IPR and PGR.

Featuring:

  • Prof. Gregory Dolin, Co-director of the Center for Medicine and Law, University of Baltimore School of Law
  • Prof. Camilla Hrdy, Center for Technology, Innovation & Competition Fellow, University of Pennsylvania Law School
  • Prof. David S. Olson, Associate Professor of Law, Boston College Law School
  • Mr. Ben Picozzi, Student Fellow, Information Society Project, Yale Law School

Federalism and Environmental Law - Event Audio/Video

2016 Annual Florida Chapters Conference
Avi Garbow, Matthew Z. Leopold, Erin Ryan, Patrick Strawbridge, Edward L. Artau, Gregory M. Munson February 03, 2016

This panel will discuss whether we have Federal overreach in this environmental law area, such as current interpretations of the Clean Water Act, Clean Air Act, Clean Power Plan, etc., and what the appropriate roles for the Federal Government and Florida are in the context of environmental law.

This panel was part of the 2016 Annual Florida Chapters Conference at Disney's Boardwalk Inn in Lake Buena Vista, FL on January 22-23, 2016.

Federalism and Environmental Law

  • Mr. Avi Garbow, General Counsel, United States Environmental Protection Agency
  • Mr. Matthew Z. Leopold, Of Counsel, Carlton Fields Jorden Burt PA and former General Counsel, Florida Department of Environmental Protection
  • Prof. Erin Ryan, Professor, Florida State University College of Law
  • Mr. Patrick Strawbridge, Partner, Consovoy McCarthy Park PLLC
  • Moderator: Hon. Edward L. Artau, Florida 15th Judicial Circuit
  • Introduction: Mr. Gregory Munson, Shareholder, Gunster

Disney's Boardwalk Inn
Lake Buena Vista, FL