Monday, October 31, 2005
I'll have a lot more to say about the substance of the GELPI Takings Conference, but thought I'd mention two brief points, one serious, one not.
First, the serious point. When I was a practicing litigator, I rarely cared much about what the Supreme Court had to say on a particular issue. The Court tends to speak in broad generalizations, and what often matters most in the real world are the more detailed statements made by lower courts interpreting the Court's precedents. If, for example, I was litigating a securities law issue in the Southern District of New York, the Second Circuit's holdings on that issue were likely far more important as a practical matter than any Supreme Court case.
Naturally, after one year in academia I had started to forget the importance of lower court opinions. Like most people who write on takings, I focus on the Supreme Court's takings cases. One of the great virtues of the GELPI Conference is that the presenters are a mix of academics and practitioners. In a number of the presentations, I was struck by the body of lower-court takings law from the Federal Circuit and various state courts, which at times reach startling conclusions in cases that putatively follow the Supreme Court's vague takings precedents. It was a good reminder that there is a lot of important law out there that should get academic attention but that is typically ignored in our single-minded focus on the Supreme Court.
The second, not serious point. I was staying at the Sheraton Commander hotel, where I saw lots of Harvard undergrads meeting their parents for dinner. I had a very frightening moment when I realized that the parents seemed much closer to my age than the students.