One of Justice Alito’s clerks got a solid law-and-econ background, with this discussion in Koontz:
A second reality of the permitting process is that many proposed land uses threaten to impose costs on the public that dedications of property can offset. Where a building proposal would substantially increase traffic congestion, for example, officials might condition permit approval on the owner’s agreement to deed over the land needed to widen a public road. Respondent argues that a similar rationale justifies the exaction at issue here: petitioner’s proposed construction project, it submits, would destroy wetlands on his property, and in order to compensate for this loss, respondent demands that he enhance wet- lands elsewhere. Insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy, and we have long sustained such regulations against constitutional attack. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926).
When I teach land-use, I frequently use the phrase internalize externalities, and receive blank stares from students. Now, it is in the U.S. Reports. With a citation to Euclid to boot!
And a quick search suggests that this is the first time this turn of phrase was ever used.
Also, Alito references another common property concept–the condition precedent and condition subsequent.
Under the Florida Supreme Court’s approach, a government order stating that a permit is “approved if ” the owner turns over property would be subject to Nollan and Dolan, but an identical order that uses the words “denied until” would not. Our unconstitutional conditions cases have long refused to attach significance to the distinction between conditions precedent and conditions subsequent
I’m looking forward to teaching this case in the fall!