Eminent Domain - What is a taking?

The United States Constitution includes a provision which forbids the taking of private property for public use. However, the same Constitutional provision implicitly allows such takings to occur so long as "just compensation" is provided. (This provision is contained in the Fifth Amendment to the U.S. Constitution).

For citizens in danger of losing property rights, the first question to ask in this area of law is "What qualifies as a takings?" Clearly, where the government converts an individual's property into public land, forcing the individual to move, a takings has occurred (this is referred to as a "physical invasion"). But not all takings are this easy to recognize.

For example, in Lucas v. South Carolina Coastal Commission, the United States Supreme Court found that an individual was entitled to compensation where the government had subjected his land to such extensive regulation that it no longer had any viable economic use. Thus, even though the government did not physically take the individual's property, he was entitled to compensation for the manner in which the government regulated his land.

In Lucas, the Supreme Court held that a regulation which deprives an owner of all economic use of his land will always qualify as a takings. This rule now accompanies the prior standard from Pennsylvania Coal Co. v. Mahon - that a regulation which goes "too far" will qualify as a takings. In this setting, a landowner subject to government regulation will want to show that their land has no economic value left, since that type of regulation will always qualify as a takings. In contrast, the government will likely try to regulate land in a way which does not deprive an owner of all economic uses.

But even if an individual's land has economic use left after the government's action, they could still try to prove that a regulatory takings occurred using the Pennsylvania Coal Co. standard. While this rule is very murky, it gives the landowner an opportunity to show that the government's regulation went "too far." If successful, the landowner would be entitled to compensation for the government's actions. Thus, landowners who have lost property rights due to government regulation may want to consider legal action, as they may be entitled to compensation for their loss.

A Finding of No Significant Impact

As I discussed in the previous post, SEPA requires state agencies to issue Environmental Impact Statements where their actions have a significant effect on the environment. But when the agency determines that a proposed action will not impact the environment negatively, it will issue a Finding of No Significant Impact instead (also known as a "FONSI").

Often, the decision to issue a FONSI will be simple for the agency, as many actions have no impact on the environment. But since the standard is not crystal clear, there are many actions that could significantly effect the environment in one mind but not another. For these actions, the agency is likely to issue a FONSI rather than go through the arduous process of creating an Environmental Impact Statement (which can take over a year to complete).

If the decision to issue a FONSI is contentious, an aggrieved party may seek judicial review. Unlike the substantive decisions of an agency following an Environmental Impact Statement, a court will not simply defer to the agency's decision to issue a FONSI. Thus, if a party can prove that an agency's action will significantly impact the environment, a court will throw out the FONSI and force the agency to produce an Environmental Impact Statement instead.

If nothing else, this can serve as a useful delay tactic which forces the agency to consider other alternatives. But ideally, when all of the information is on the table, the agency will choose the course of action that is best suited for all parties involved, including environmental advocates. With that in mind, a party aggrieved by an agency's decision to issue a FONSI should consider judicial remedies, since it might lead to a more favorable result in the future.

Environmental Policy Programs

Many states, including Washington, have their own Environmental Policy Acts (often referred to as a "SEPA" - short for State Environmental Policy Act: for an example, see here). One of the Act's main requirements is that all state agencies must consider whether their actions have a significant effect on the environment. If that is the case, the agency then has to conduct extensive research on the environmental consequences of the action, and complete an Environmental Impact Statement. For example, if the Department of Transportation decided that it wanted to construct a major highway through Washington, it would need to issue an Environmental Impact Statement before construction could begin.

While this law may seem great on its face for environmental advocates, a major problem lies under the surface. Unfortunately, the Act lacks teeth that would allow environmentalists to question the substance of an agency's decision in court. As long as the agency prepared an adequate Environmental Impact Statement and made a rational decision based on that report, the court cannot overturn the decision on review. This is true even if the agency did not choose the course of action that was best suited to protect the environment.

Some may agree with this approach. It allows the agency to make decisions and plan certain projects without having to wait for the court's second opinion on the matter. But ultimately, if the goal of the Environmental Policy Act is to promote environmental protection, judicial review of agency actions should be allowed. This would be the most effective way to ensure that agencies are complying with the goals of SEPA and working to protect our environment.

Working with a Young Lawyer

If you are in need of an attorney to help you with a legal problem, you might wonder why you would even consider hiring a young lawyer who has only recently passed the bar exam. After all, there are bound to be more experienced attorneys in your area who have many years of practice already under their belt.

But for those with an open mind, there are a few reasons why you might consider a young attorney. First, a young attorney will charge lower rates for their legal services. For a lawyer who is just starting to practice, it would be unreasonable to charge a client the same price as an attorney who has much more experience in the field. And for this reason, a prospective client could save money by choosing a young lawyer as their representative.

Second, a young attorney will have a strong desire to build a good reputation. Whereas experienced attorneys have already developed their reputation to a great extent, young attorneys are eager to get in the game and prove they belong. Because young attorneys are enthusiastic to start practicing law, they will work their hardest to provide effective representation and build a good name for themselves.

Finally, a young attorney will likely have fewer clients to serve. For that reason, the young lawyer should be able to give your matter more attention than an attorney with a large number of pending cases. And with more time to devote to your case, the lawyer may be able to develop a better attorney-client relationship.

This is not to say that a young attorney is for everyone. If you have an extremely complex problem that you feel would best be handled by an experienced attorney, then your best bet is to ask around and find a lawyer with a good reputation in your area. But if your matter is more straightforward, don't be afraid to ask a young lawyer for assistance. You might end up saving money, and could even develop a meaningful relationship in the process.

The Bar Exam

Washington is expected to announce results from the July 2011 Bar exam early this week, so you can be sure that many graduated law students are currently camped out in front of their mailboxes awaiting the verdict from the Bar Examiners (myself included). As we are in the midst of this uncertain time, I wanted to share a few thoughts I had about the exam itself.

The bar exam is likely the most difficult test that a person will take in their life. When you consider that your average law student goes through at least 4 years of university education and 3 years of law school prior to the bar exam, that is saying quite a lot. Not to mention the pesky LSAT which every student must take before applying to law school.

The reason the bar exam is so difficult is because it tests everything about the law. In contrast to a law school final, which is the culmination of 4-months of coursework in a particular subject area, the bar exam consists of 18 questions that could test any conceivable legal problem. Coming into the test, the student receives some guidance from the Bar Association as to what subjects will be covered (the lengthy list can be viewed here), but these subjects are very broad. Even if the student had a lifetime to prepare, it would be impossible to become an expert in all of these subject areas. Really, all you can do is work as hard as you can and hope that you learn enough to get by in your preparation time.

But even once this 2-day test has been administered, there remains one final hurdle: Professional Responsibilities. Although this should be a relatively easy subject for most law students, the fact that you only have 2 hours and 15 minutes to answer 6 essay questions makes it more difficult. Further, since it is administered the day after the bar exam, there isn't as much preparation time as one would hope for.

Overall, the entire process spans three days. A student who fails either the Bar exam or the Professional Responsibilities exam will not be admitted as a lawyer. It is a stressful process that no one would want to go through twice. And while there is certainly a sense of accomplishment once it is over, all of us are seeking that vindication from the Bar examiners once the results are released.

With that said, I wish my fellow bar-takers the best of luck when the results are posted.

UPDATE: Washington has just posted results for the bar exam, which can be viewed here.

Deciding whether to open a solo practice

The decision to open a solo practice is a difficult one, especially for someone new to the profession. I was fortunate over the course of law school to receive training as an attorney at three different organizations, but no one taught me anything about owning a firm. As I determine whether to start my own firm, I am forced to do most of the research on my own.

And that brings me to my first point. No one is going to "invite" you to open a practice, nor will they hold your hand through the process. If you want to open a law firm, all of the work and responsibility will be on your shoulders from the start. Because of this, I think it's easy for many law students to shy away from this idea. Most of us have been coddled through at least 7 years of upper-level education. Along the way, we were always taught that we were the future of America. For many individuals, it can be difficult to justify a break from that support system.

Another concern is the costs associated with opening a law firm. Although there is one blogger out there who estimates you can keep your overhead around $3,000 for the first year of practice (see http://lawyerist.com/the-cost-of-starting-a-solo-law-practice-and-keeping-it-going-for-at-least-a-year/), many would associate much higher costs with a new practice. For example, if you want malpractice insurance (which is required in some states) and an office, expect to pay much more than $3,000 for your first year of business.

But in the end, costs can be justified if the firm is bringing in business. So without question, the greatest concern for new practitioners is the source of revenue. Unfortunately, law students are not trained to attract clients; we are trained to spot legal issues and find relevant case law. Unless the student received undergraduate training in marketing, this skill set could be completely undeveloped. And the idea of starting a business without knowing where your revenue will come from is certainly a scary prospect.

However, if you want to start your own practice, you have to find the courage and strength to put all of your fears aside. You have to be 100% committed to your business from the start, believing that you will succeed from Day one. After all, if you don't believe in yourself, why would your clients? So if you are like me, a recent law school graduate deciding whether to start your own firm, make sure you fully commit to the idea before you untie your ship from the dock. Otherwise, you might be off course from the start and sail straight into the abyss.

Welcome!

Thank you for visiting my site! As you can tell from the "About me" section on this page, I am a recent law school graduate awaiting results from the Bar Exam in Washington. At the moment, I am contemplating opening my own law practice in Bellingham, WA. I have always wanted to be my own boss, and would love the freedom and excitement of starting my own business. Plus, in this difficult economy, jobs are so scarce that it may be my only option.

Join me as I embark on this uncertain journey. Please feel free to comment on any of my posts or ask questions along the way!