Friday, November 20, 2009

Agins Strikes Again

Okay - here's my rant for the day.  Why, oh why, couldn't the US Supreme Court have overruled Agins v. Tiburon in Lingle v. Chevron?  This case trips up my students every semester.  You all will remember Agins as the 1980 downzoning case in Tiburon, California in which the Court fashioned a takings test for facial challenges whereby an the ordinance was unconstitutional if it either did not substantially advance a legitimate state interest or it denied an owner economically viable use of the land.  In Lingle the court said that the substantially advances test was essentially a due process analysis and therefore was not appropriate to analyze takings cases.  Rather, the court reaffirmed the Penn Central case as the appropriate test for garden-variety regulatory takings (although I don't think the Court used the term "garden variety" in its analysis). However, Agins seems like a lovely, simple test and so every semester a clinic student latches onto it when trying to explain takings doctrine in a client memo.  As someone did today.

Anybody else have issues with student confusion over this case?  Any Supreme Court scholars out there who know if there's some obscure doctrine that would allow the court to overrule this case from the bench this term?  We could form a picket line outside the court.  I can only imagine the confused Supreme Court reporters trying to explain our outrage to a mystified public.

It's the Friday before Thanksgiving, the last day of classes (for me), it's 66 degrees and sunny here in Athens, and Chad is at the amusement park convention.  I have to find some way to entertain myself...

Jamie Baker Roskie

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