Inverse Condemnation and Related Government Liability: The Response from State and Federal Courts, Legislatures, and Initiatives, and How It Affects Your Client Today
Scope and Purpose
It’s in the news and in the courts: the minefield of compensation, takings, public use, and backlash from Kelo.
Attend the longest running, annual advanced course in the country on the topic of national inverse condemnation. This highly controversial issue, teeming with constitutional significance, is almost certain to affect you and your clients. If you practice land use or property law, the time will come when you’ll need the kind of expertise found only at an ALI-ABA course of study. ALI-ABA’s up-to-the-minute, in-depth, balanced program examines all the prickly and complex issues of this vital and polarizing topic, with an emphasis on practical approaches, strategies, and take-aways you can put to use right away. Our renowned faculty, featuring governmental and private practitioners, present focused, lively sessions that help you to navigate the myriad obstacles facing you and your clients today.
More than 17 hours of instruction cover the following:
How the Roberts Court will change Takings Clause jurisprudence — and your practice.
Has the use of the initiative process changed the ground rules in favor of the land owner?(And what you need to know to protect and defend your client.)
One view from the bench on Court of Claims litigation.
Is a takings claim available when only some of a parcel has been regulated?
Recent U.S. Supreme Court developments and their impact on the Nollan "essential nexus" and Dolan "rough proportionality" doctrines.
"Inclusionary zoning" ordinances: do they violate the Takings Clause?
"Ripening" a claim against the government: a path through the quicksand.
Due process, equal protection, and Section 1983 causes of action: are they still viable?
How to avoid litigation — tips for landowner and government attorneys.
How to prosecute or defend a claim when use and value remain in the property.
How to value property that has been taken.
Time has been allotted throughout the program for consideration of registrants’ questions.
Planning Chairs
Gideon Kanner, Professor Emeritus, Loyola Law School, Los Angeles, is editor of Just Compensation, a monthly periodical on the law of eminent domain.
PLANNING CO-CHAIR (also on faculty)
James S. Burling, Principal, Property Rights Practice Group, Pacific Legal Foundation, Sacramento, successfully argued Palazzolo v. Rhode Island before the U.S. Supreme Court.
Faculty
Michael M. Berger, Manatt, Phelps & Phillips, LLP, Los Angeles, is one of the top land use and condemnation lawyers in the United States.
Kenneth B. Bley, Cox Castle & Nicholson LLP, Los Angeles, former Chair of firm Land Use Group, frequently submits amicus curiae briefs to the United States and California Supreme Courts on behalf of the National Association of Home Builders.
Amy Brigham Boulris, Brigham Moore, LLP, Miami, has focused primarily on litigation at the appellate level and currently heads Brigham Moore’s appellate practice statewide.
James E. Brookshire, Chief Counsel, Complex Dispute Resolution, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.
David L. Callies, Professor of Law, William S. Richardson School of Law, University of Hawaii, Honolulu, recently co-authored Taking Land: Compulsory Purchase and Regulation in Asia-Pacific Countries (2002)
Kenneth M. Dintzer, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C.
Steven J. Eagle, Professor of Law, George Mason University School of Law, Arlington, Virginia, is author of Regulatory Takings.
Richard Frank, Executive Director, California Center for Environmental Law and Policy, University of California, Berkeley School of Law, Berkeley
Jill S. Gelineau, Schwabe, Williamson & Wyatt, Portland, Oregon
John M. Groen, Groen Stephens & Klinge LLP, Bellevue, Washington, has been directly involved in many of the leading appellate decisions that have shaped significant aspects of land use law in Washington.
Timothy Keller, Executive Director, Arizona Chapter, Institute for Justice, Tempe, litigates property rights, free speech, and other constitutional cases in state court.
Dwight H. Merriam, Robinson & Cole LLP, Hartford, Connecticut, has published more than 180 articles on land use law, co-edited Inclusionary Zoning Moves Downtown, co-authored The Takings Issue, and authored The Complete Guide to Zoning.
Faith Mitchell, Beverly Hills, California
R.S. Radford, Director, PROGRAM for Judicial Awareness, Pacific Legal Foundation, Sacramento, has appeared before the U.S. Supreme Court, the Ninth Circuit Court of Appeals, and the highest state courts of New York and California on behalf of property owners.
Timothy M. Sandefur, Pacific Legal Foundation, Sacramento, California
Andrew W. Schwartz, Shute, Mihaly & Weinberger LLP, San Francisco, is a former San Francisco city attorney and represented the city in many precedent-setting land use cases, including San Remo Hotel v. City and County of San Francisco, which set the standard for challenges to development impact fees, and Guinnane v. San Francisco Planning Commission,, a landmark case affirming the breadth of the local government police power to regulate land use.
Nancy E. Stroud, Lewis Stroud & Deutsch, P.L., Boca Raton, Florida
David A. Thomas, Professor of Law, J. Reuben Clark Law School, Brigham Young University, Provo, Utah, is Editor-in-Chief and principal author of complete revision of Thompson on Real Property since 1995.
William W. Wade, Ph.D., President, Energy and Water Economics, Columbia Tennessee
Victor J. Wolski, Judge, U.S. Court of Federal Claims, Washington, D.C.
ALI-ABA Staff Attorney: Kevin J. O’Connor, Senior Assistant Director, Office of Courses of Study (koconnor@ali-aba.org)
Note: The discussions include at least one full hour on ethics and professional responsibility issues, accepted as such by most, but not all, MCLE jurisdictions.
Program Schedule
Thursday, April 12, 2007
- 7:30 a.m. Registration and Continental Breakfast
- video webcast segment A
- 8:30 a.m. Introductory Remarks and Course Overview – Professor Kanner and Mr. Burling
- 8:45 a.m. What’s Old and What’s New in Inverse Condemnation: A Brief Introduction and Update – Mr. Burling
- 9:30 a.m. A Dozen Recent Developments and How They Affect Your Client – Mr. Berger
- 10:15 a.m. Networking Break
- 10:30 a.m. Stay Out of Fights with the Feds: Avoiding Litigation, and Using ADR When You Can’t – Mr. Brookshire
- 11:15 a.m. The Roberts Court and You: A Look into the Crystal Ball – Professor Eagle
- 12:00 noon Questions and Answers
- 12:15 p.m. Lunch Break
- video webcast segment B
- 1:30 p.m. Know a Partial Taking When You See It — Lessons from Penn Central – Mr. Radford
- 2:15 p.m. Unequal Justice under Law – Are Property Owners Mistreated in Eminent Domain Litigation? – Professor Kanner
- 3:00 p.m. Networking Break
- 3:15 p.m. How Much Is Too Much? — The Relevant Parcel Problem – Ms. Gelineau
- 4:00 p.m. What Does the Constitution Say About Compensation? Substantive Due Process, Section 1983, and Other Theories – Mr. Bley
- 4:45 p.m. Questions and Answers
- 5:00 p.m. Adjournment for the Day
Friday, April 13, 2007
- 8:00 a.m. Continental Breakfast
- video webcast segment C
- 8:30 a.m. Can We/ Have We Reengineered Regulation To Avoid Takings? – Mr. Merriam
- 9:15 a.m. Critical Steps To Preserving a Landowner’s Takings Claim — Starting at the Administrative and Initial Pleading Stage – Mr. Groen
- 10:00 a.m. Networking Break
- 10:15 a.m. How the Government Can Avoid Property Rights Litigation – Mr. Schwartz
- 11:00 a.m. The Kelo Backlash in the Courts and Legislatures: Good for Landowners, Bad for Government? – Mr. Keller
- 11:45 a.m. Questions and Answers
- 12:00 noon Lunch Break
- video webcast segment D
- 1:30 p.m. A View from the Court of Federal Claims – Judge Wolski
- 2:15 p.m. Plundering Property Is a Very Bad Idea – Mr. Thomas
- 3:00 p.m. Networking Break
- 3:15 p.m. Landowners Strike Back — The Property Rights Ballot Initiatives of 2006 — What Passed, What Didn’t, and What It Means – Messrs. Frank, Sandefur, and Schwartz
- 4:15 p.m. The Experience of Florida’s Property Rights Law — Two Perspectives on the Bert J. Harris Act – Mss. Boulris and Stroud
- 5:15 p.m. Questions and Answers
- 5:30 p.m. Adjournment for the Day
Saturday, April 14, 2007
- 8:00 a.m. Continental Breakfast
- video webcast segment E
- 8:30 a.m. Lingle: Has It Changed the Law of Exactions, Unconstitutional Conditions, and Nollan and Dolan? – Professor Callies
- 9:15 a.m. Inclusionary Zoning: New Challenges as an Illegal Exaction – Mr. Burling
- 9:45 a.m. Networking Break
- 10:00 a.m. Elements of Compensation: An Overview of Valuation Issues – Ms. Mitchell
- 10:45 a.m. How Much Does Regulation Cost? — Views from Attorneys and an Economist – Messrs. Dintzer, Radford, and Wade
- 12:00 noon Questions and Answers
- 12:15 p.m. Adjournment
Total 60-minute hours of instruction: 17.25
Suggested Prerequisite: Limited experience or an informed special interest in the subject matter
Educational Objective: Maintenance of professional competence as a practitioner; provision of information on recent legal developments
Level of Instruction: Advanced
Here's what registrants have said about this course:
Excellent course – well presented. Faculty obviously very knowledgeable and thorough. Very thought provoking and provided potential help in several cases I currently have.
I attend ALI-ABA courses whenever I can because I have found them excellent and enjoyable.
The value of this course to me over the years has been the thorough analysis of the facts and rulings in leading land use and takings cases, to help me analyze cases in my office and hopefully avoid/avail myself of the many traps that permeate this area of the law. I have also enjoyed the banter.
I was inspired by the faculty and presentations. The practical speakers were very informative. The theory guys helped clarify my thinking. This CLE was not just the best CLE that I have been to (by far), but the best professional seminar that I have ever participated in.
Faculty was well-balanced, and the course effectively combined analysis of precedent with theoretical concepts. Overall, an excellent course.
Great faculty, great subject matter and corresponding materials. Well done!
Content of course was excellent and first rate – one of the best I’ve attended. People attending the course were also very interesting.
I liked the mix of topics that build onto each other in presenting a comprehensive overview of the subject matter of takings law and principles.
An outstanding course among the many I have attended on this subject over the years. Jim Burling is to be highly commended.
I thought the program covered all areas of importance. Further, the written materials are excellent and I will continue to use them as a reference. Overall, it was by-far the best CLE that I have ever participated in.
