The power of eminent domain is an inherent attribute of sovereignty, not a power granted by the federal or any state constitution. There are significant constitutional constraints on exercises of the eminent-domain powers, however, most notably the requirement contained in the Takings Clause that private property shall not “be taken for public use, without just […]
Debate about the significance of the “public use” language in the Takings Clause generally assumes that the language is a limit on the power of eminent domain. This Essay argues that the language is better understood as an operative predicate that tells us what kinds of takings require the payment of compensation. The Supreme Court […]
The Supreme Court’s 2024 City of Grants Pass v. Johnson decision allows jurisdictions to address homelessness by driving unhoused people away, and some have done so in the months since the decision. For those local governments that rise to the challenge of the homelessness crisis, various statutes and regulations, such as the Fair Housing Act, […]
This Article examines the political and economic implications of the U.S. Supreme Court’s landmark decision in Kelo v. City of New London (2005) through an empirical study of eminent-domain practices in New York City. Using a unique dataset of all expropriations in New York City over twenty-nine years, we challenge two core assumptions underlying the […]
The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the “public use” issue at stake in Kelo and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. This Article takes […]
In the summer of 2023, Professor Yoon-Ho Alex Lee of Northwestern Law School called Karen Crocco, my father’s assistant of forty years (and Executive Secretary of the American Law and Economics Association), to ask whether he might organize a Festschrift honoring George. My father, who had always insisted on keeping the focus on ideas rather […]
Antitrust law was born within the public law paradigm. Its justification seems to be based on the power to limit private activity for the public interest. On that basis, the application of antitrust law has customarily been entrusted to judicial courts or administrative authorities, usually specialized state agencies. The emergence of antitrust-focused arbitration tribunals—usually composed […]
In recent years, there has been a proliferation of interest concerning environmental issues and the application of the antitrust laws. Numerous commentators, for instance, have argued that antitrust enforcement should be adjusted to account for the environmental harm (or benefit) that is generated from a competitive condition. In this paper, we take a step back […]
This essay examines the critical challenge of balancing government intervention and market freedom, drawing insights from the intellectual collaboration and contestation between Owen Fiss and George Priest. Comparing the United States and Europe, the analysis reveals that while America achieves superior economic performance through market-oriented policies, Europe demonstrates better health outcomes, lower inequality, and more […]
Early in his career, Professor George Priest floated the idea of the law-school-as-university, in which scholars and teachers would employ the social sciences to understand how the law affects human behavior. He contended that the traditional study of doctrine was both uninteresting and of little consequence. In this essay I contend that Professor Priest’s advocacy, […]
Antitrust law, particularly the Supreme Court’s decisions in National Collegiate Athletic Ass’n v. Board of Regents, 468 U.S. 85 (1984), and National Collegiate Athletic Ass’n v. Alston, 594 U.S. 69 (2021), has fundamentally changed college sports. Intercollegiate athletics, at least at the major conference level and particularly (but not exclusively) with respect to football and […]
Priest and Klein’s Selection of Disputes for Litigation has been one of the most influential legal articles of all time. This Essay reviews its contribution to legal scholarship. Priest and Klein’s central and enduring contribution is the recognition that some cases are more likely to settle than others. It follows that litigated disputes are not […]