Echeverria on The Costs of Koontz

John Echeverria (Vermont) has posted The Costs of Koontz (Vermont Law Review) on SSRN.  Here's the abstract:

Robust enforcement of individual constitutional rights protects the interests that the rights are designed to advance. But robust enforcement of individual rights can undermine other constitutionally protected values and impose other social and economic costs. This article catalogues the steep costs of the Supreme Court’s controversial 2013 decision in Koontz v. St Johns River Water Management District. In that case the Court issued two rulings expanding the rights of property owners under the Fifth Amendment to the U.S. Constitution: first, the Court extended the Nollan/Dolan standards to “monetary exactions;” second, the Court ruled that the Nollan/Dolan standards govern takings claims based on permit denials resulting from property owners’ refusal to accept “demands” for exactions. The Koontz Court paid little attention to the cost of these rulings, but it might well have reached a different result if it had paid more attention to them. These costs include: (1) exacerbated confusion about the scope and purpose of takings law, to the detriment of rule of law values and the reputation of the Supreme Court itself; (2) erosion of the principle of separation of powers due to an unwarranted expansion of the judicial role at the expense of the other two branches of government, (3) undermining of the U.S. system of federalism due to the promulgation of one-size-fits-all national judicial rules that limit local political accountability, diversity and policy experimentation; and (4) less efficient and effective protection and management of the use of land and other natural resources. Justice Elena Kagan predicted that the Court would come to “rue” its decision in Koontz, and the broader perspective suggested by this article might help the Court chart a different course on these issues in the future.