Thursday, September 16, 2010
Ilya Somin has an interesting post at the Volokh Conspiracy titled Is the Judicial Takings Issue Headed Back to the Supreme Court? Somin notes that in Stop the Beach Renourishment, the Court split 4-4 on the merits of the judicial takings issue, and then describes a Montana state court case, PPL Montana v. State of Montana, that has been petitioned for certiorari. The case turns on a favorite topic of mine, the constitutional definition of property with respect to "navigable waters." Somin offers some analysis from Ilya Shapiro of the Cato Institute, who authored an amicus brief supporting cert. While it's far from a sure thing to be granted cert, Somin thinks that it could potentially present the judicial takings issue more squarely, and he notes:
If the Supreme Court takes this case, it may be less willing to grant broad discretion to state courts than it was in Stop the Beach, because the relevant state law doctrine (the definition of “navigable”) is derived from federal law.