Michael Allan Wolf on U.S. Supreme Court Real Property Decisions -- 2012 and Looking Ahead

Michael Allan Wolf on U.S. Supreme Court Real Property Decisions -- 2012 and Looking Ahead

The general editor of Powell on Real Property, Michael Allan Wolf, analyzes a broad range of cases related to property that reached the U.S. Supreme Court during its 2011-2012 Term. This analysis was adapted from the annual Supreme Court Update feature of Powell on Real Property and includes Professor Wolf's look ahead to the 2012-2013 Term.

Excerpt:

     The 2011-2012 Term of the U.S. Supreme Court was one of the most controversial in recent history. Observers-lawyers and nonlawyers alike-anticipated decisions regarding the constitutionality of federal health care legislation (the Patient Protection and Affordable Care Act of 2010) and of Arizona's statute regulating undocumented immigrants (the Support Our Law Enforcement and Safe Neighborhoods Act), and the divided Court's decisions did not completely satisfy the political agenda of any segment of American society. While its decisions in the area of real property have not garnered the attention of these two high-profile cases, the justices did address a set of provocative questions related to property in a broad range of cases that reached the high court. This analysis, adapted from the Supreme Court Update which appears annually in the treatise Powell on Real Property, will review seven Supreme Court cases that have a direct connection to the subject matter covered by Powell on Real Property, directing the reader to related treatments within that Treatise. This analysis concludes with a look ahead to the 2012-2013 Term and two disputes that should be of great interest to lawyers and judges interested in eminent domain issues.

     The subjects that the Court addressed in its property-related cases during the 2011-2012 Term include:

-the federal government's vulnerability to suit for its acquisition of land for Native American tribes,

-a local government's choice of methods for assessing landowners for the cost of public improvements,

-permissible charges under the Real Estate Settlement Procedures Act (RESPA),

-the Social Security Act's reliance on state intestacy law for the question of inheritance by a "child,"

-the legitimacy of a compliance order for parties charged with illegally filling wetlands,

-the navigability test used to determine ownership of riverbeds, and

-the use of the common-law trespassory test for determining whether the government's installation of a GPS device on a vehicle violates the Fourth Amendment.

     ....

ON THE HORIZON: THE 2012-2103 TERM

     The 2012-2013 Term of the U.S. Supreme Court should be of great interest to lawyers and judges interested in eminent domain issues, as the justices have already agreed to hear two takings disputes. On April 2, 2012, the Court granted a writ of certiorari to the U.S. Court of Appeals for the Federal Circuit in Arkansas Game & Fish Commission v. U.S [enhanced version available to lexis.com subscribers]. The question that the justices agreed to address was "[w]hether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause." The state Commission had successfully asserted in the U.S. Court of Federal Claims that the U.S. Army Corps of Engineers had caused increased flooding in the Dave Donaldson Black River Wildlife Management Area and thereby effected a physical taking of its property, resulting in a damages award of more than $5.7 million. The appellate panel split 2-1 in the federal government's favor, reversing the lower court's determination that the defendant had taken a flowage easement from the Commission without just compensation.

(footnotes omitted) 

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