The Law of Banksy: Who Owns Street Art?

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. In this Comment, Coby Goldberg provides the only comprehensive analysis of the judicial takings caselaw since Stop the Beach, in order to determine why no court has found a judicial taking. Based on this analysis of the caselaw, this Comment suggests that finding a judicial taking is all but impossible. That conclusion does not mean that judicial takings doctrine has had no influence on property jurisprudence in the years since Stop the Beach, however. This Comment identifies three cases in which state courts have used the possibility of judicial takings as reasons not to make decisions that undercut property rights. In those cases, judicial takings doctrine is functioning as something akin to a canon of constitutional avoidance. If decided the other way, none of those three decisions would have avoided actions that would have amounted to judicial takings. This Comment thus concludes that judicial takings doctrine leads to worse outcomes in property law, and so, out of a concern for constitutional problems that never arise, courts reject decisions they would otherwise adopt.

The Fair Housing Act (FHA) makes it unlawful to deny people with disabilities “reasonable accommodations.” But courts have long split over how to interpret this provision. At the center of the divide is the statutory requirement that an accommodation be “necessary to afford . . . equal opportunity to use and enjoy a dwelling.” Some courts interpret this language to impose a strict-necessity standard, requiring that an accommodation be truly indispensable. Other circuits instead read the statute as imposing a lenient-necessity standard, requiring only that the requested accommodation ameliorate the plaintiff’s disability. Rather than pick one interpretation, this Comment suggests that courts should tailor the necessity standard they employ to the type of case that is brought. Analyzing the text of the statute, Ben Griswold argues that the term “use and enjoy” invokes common law property ideas that should inform the interpretation of the reasonable accommodation provision. This textual analysis indicates that courts should apply a lenient-necessity requirement to cases brought by housing occupants requesting a specific accommodation, but should apply a strict-necessity requirement in cases brought by developers seeking zoning variances. Further, this interpretation addresses important information asymmetries, enabling courts to more optimally select for societally beneficial accommodations.

The canonical test for Fourth Amendment searches looks to whether the government has violated a person’s reasonable expectation of privacy. Yet the Supreme Court has recently added a property-based test to address cases involving physical intrusions. Further, influential judges and scholars have proposed relying primarily on property in determining the Fourth Amendment’s scope. This Article exposes the overlooked flaws of a property-centered Fourth Amendment. It examines the complications of property law, explores the malleability of property rights, and reveals how governments can manipulate them. Normatively, Fourth Amendment regimes based on property are likely to be underinclusive and grounded in trivial physical contact while ignoring greater intrusions. Finally, because property is unequally distributed, its use as a determinant of Fourth Amendment protections risks leaving disadvantaged members of society with the least protection. While property concepts will sometimes be relevant, they should be used very carefully, and very little, in Fourth Amendment law.