Knick and the Elephant in the Courtroom

In Knick v. Township of Scott, the Supreme Court corrected one of the most egregious and inexplicable blunders of its 230-year history. For more than three decades, plaintiffs who alleged a violation of the Takings Clause by state or local governments were barred from suing for compensation in federal court. The source of this prohibition was Justice Blackmun’s 1985 opinion in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City—a decision that most scholars and practitioners believe rested on a fundamental misunderstanding of both constitutional text and legal procedure.

Drone Delivery and the Takings Clause

Amazon, Inc.’s fledgling drone shipping service, “Prime Air,” and similar services, may pose a new threat to private property rights. Companies that ship by drone would likely have to fly the drones over private land. But who owns the low-altitude airspace above private land? That issue is unsettled, but the common law supports the view that low-altitude airspace belongs to the landowners beneath. If that is correct, companies like Amazon have two main options to get drone shipping off the ground: (1) pay the landowners on the intended routes for an easement through their low-altitude airspace, or (2) count on the government to compel easements through these spaces. The second option presents a Takings Clause problem. Because forced easements of flight intrude on landowner rights, landowners burdened by drone easements could potentially prove a per se taking. But even if drone easements are not per se takings, case law and the “character of the government action” factor in the Penn Central analysis give landowners a fighting chance to prove a regulatory taking. Overall, the Takings Clause could be a valuable tool for both economic efficiency and equity, requiring beneficiaries of drone easements to compensate those burdened by the easements. If drone shipping takes off in the U.S., current law may ensure that the negative externalities will not fall solely on the surface landowners.

Using Eminent Domain for Economic Development: Does it Increase Private Sector Employment?

Although controversial, local and state governments draw on broad interpretations of the Fifth Amendment takings clause to justify using eminent domain for economic development. Previous studies examine such uses from the perspective of property rights and the scope and size of government. This paper addresses the fundamental question: Do states that grant local governments liberal eminent domain powers actually enjoy greater economic growth? This paper estimates how liberal eminent domain laws affect private sector employment growth across states while controlling for national trend and industry mix effects. The results clearly show that allowing local governments to use eminent domain for economic development does not lead to more private sector jobs.

‘On Just Terms’, Revisited

Although it is now generally accepted that s 51(xxxi) is a constitutional guarantee, it continues to be applied using characterisation analysis, the method of analysis used to apply grants of legislative power. This article argues that this is a mistake: if s 51(xxxi) is a constitutional guarantee, then it should be analysed like a constitutional guarantee. It takes to task the High Court's self-consciously comparative defence of characterisation analysis, which relies on the US Constitution's Fifth Amendment ‘takings clause’ as a foil. The article demonstrates that in some respects the differences between the two constitutional property clauses have been overstated, while in other respects they have been overlooked. From a broader comparative perspective, the most significant feature of s 51(xxxi) is not its use of the term ‘acquisition’, but its lack of reference to ‘compensation’ and use instead of the phrase ‘on just terms’. By resituating s 51(xxxi) in comparative perspective, the analysis provided in this article makes two important contributions. First, it deepens existing jurisprudential critiques by providing a more precise diagnosis of the problem with characterisation analysis. Second, it proposes and defends an alternative approach that is responsive to that diagnosis, that is better supported by the text and structure of s 51(xxx), and that is consistent with the High Court's commitment to the thesis that s 51(xxxi) is a constitutional guarantee.