Wednesday, October 24, 2012
Over at the Environmental Law Prof Blog, Dave Owen has a post suggesting that the Supreme Court's recent activity around the Takings Clause may reflect the Justices’ discomfort with categorical rules:
For years, the Court’s takings decisions have sought to resolve a few tensions. [One] prominent tension has been between the desire for clear, readily applicable rules, which theoretically will supply greater predictability and consistency, and more ad-hoc standards, which theoretically will better promote individualized justice.
Lawyers who think about takings have grown accustomed to perceiving the anti-regulatory agenda and the clarity agenda as aligned. [...] The last few years, however, have produced a few cases that don’t fit with that traditional perception. In Stop the Beach Renourishment v. Florida Department of Environmental Protection, one key question was whether a so-called “judicial taking” is possible. Justice Scalia’s plurality opinion endorsed the idea that judicial takings could exist, thus rejecting a potentially clear and categorical rule against judicial takings. Last week, the Court heard oral argument in Arkansas Game & Fish Commission v. United States. The case arose because management of a federal water project allegedly caused extensive and damaging, but also temporary, flooding of state land. Prior decisions seemed to endorse a categorical rule that such flooding couldn’t be the basis for a takings claim—the remedies instead lie in tort law—but at oral argument, the conservative justices seemed skeptical of that rule. Finally, in Koontz, one key issue is whether a monetary exaction can be categorically excluded from the Dollan exaction test (the other key question is whether a “failed exaction”—that is, and exaction that is proposed but never imposed—can form the basis of a takings claim). While no one outside the Court knows exactly why the Court granted cert, one reasonable hypothesis is that some of the justices are troubled by that categorical rule as well.
Tim Mulvaney responds here.