Damon Key Leong Kupchak Hastert

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Well, here it is. What looks like the first complaint to be filed challenging a state governor’s order to shut down businesses to “flatten the curve.”  The complaint seeks class action status, and raises section 1983, due process, and Fifth and Fourteenth Amendment takings claims. It seeks damages, compensation, a declaratory judgment, and, interestingly, an injunction prohibiting enforcement of the shut down order “unless, and until, a mechanism is established to provide (a) just compensation…
The materials we were reading yesterday (particularly Steve Silva’s “History: Fire and Blood(worth),” got us to thinking. There, Steve wrote about the  September 2, 1666 London fire which destroyed 80% of the city, the government’s emergency powers, and compensation. He also brought up a subject we had not know of before: the subsequent legislation — the Fire of London Disputes Act  1666 (18 & 19 C. II. c.7)* — which created the…
It’s tough with all that’s swirling around all of us to keep focused on non-virus related things. But because we think that’s one way to keep calm and carry on, we shall continue to endeavor to do so. But come on, being takings and dirt lawyers we also can’t help viewing current events through that lens, no? Consequently, we shall also continue from time-to-time to post about issues that have cropped up in practice
The work of the courts goes on, and as long as there’s stuff to report, we’ll keep reporting as usual. Yesterday, the U.S. Court of Appeals for the Federal Circuit issued an important takings decision in a case and issue we’ve been following for what seems like forever. In Anaheim Gardens, L.P. v. United States, No. 19-1277 (Mar. 25, 2020), the court held that a property owner in a regulatory takings case asserting…
As long-time readers know, we often kvetch about the way many courts ignore the Palazzolo rule that simply because someone obtains property subject to preexisting restrictions on use does not preclude them automatically from raising takings claims. See here, here, here, and here, for example. More about the Palazzolo case here, including video. But not all courts get it wrong, however. Now you can add to the plus-column the Florida…
Here’s one for our Hawaii folks, in case you all are curious about the origins of the analytical framework which courts use to review the legality of measures taken by the authorities in the name of “public health” that have an impact on the uses of private property.   As far as we can tell, The King v Tong Lee, 4 Haw. 335 (Kingdom 1880) (in banco), is the first Hawaii case which uses the…
US 50 in Nevada – the “Loneliest Road” Here’s the cert petition which we and our Nevada colleague Luke Busby filed today, asking the U.S. Supreme Court to review this Question Presented: Conflicting with Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Supreme Court of Nevada concluded that to prevail on a physical takings claim a property owner must show that a flood “effectually destroy[ed] or impair[ed] [the property’s] usefulness.” The question…