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June 17, 2010


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Carl C. Christensen

If there is no taking if a court merely readjusts property rights as between different private owners, would that also be the case if a court chooses to modify the rights of surface landowners relative to those of owners of subsurface mineral rights in a manner analogous to the legislative scheme at issue in Pennsylvania Coal Co. v. Mahon by, perhaps, reinterpreting the rights of a grantee under a broad form deed?

M Robert Goldstein

And where does a change in public policy fit into all of this. In the south property owners exercised their right of exclusion from real property to exclude people based on race. That was a recognized property right from before the founding of this country. The civil rights laws enforced by court decisions changed all of that. Would the supreme Court afford compensation as a judicial taking in such an instance? Do not reasonable investment based expectations include changes in judicial holdings, even as to fundamental provisions.Perhaps if you are one who believes the constitution is static and frozen in time Judge Scalia's opinion would appeal to you.

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