Administrative takings: A realist perspective on the practice and theory of regulatory takings cases

Notre Dame Law Review

Volumn 74, Issue 3, 1999, Pages 717-773

  Westbrook, David A ^a  

^a UNIVERSITY AT BUFFALO   (United States)

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EID: 0033436787     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (287)

1. U.S. CONST, amend. V. Unless otherwise indicated, "government" refers to either state or federal government. Lore has it the Fifth Amendment was made applicable to the states through the due process clause of the Fourteenth Amendment in Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S. 226, 239 (1897). See Dolan v. City of Tigard, 512 U.S. 374, 383 n.5 (1994). But see id. at 410-11 (Stevens, J., dissenting); discussion infra nn. 128-33 and accompanying text. Neither Stevens nor anyone else appears to question the general proposition that the takings clause applies to the states. In addition, most state constitutions contain a clause providing that takings be compensated.
2. Much contemporary scholarship harks back to three articles: Allison Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 SUP. CT. REV. 63; Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36 (1964).
3. Much contemporary scholarship harks back to three articles: Allison Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 SUP. CT. REV. 63; Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36 (1964).
4. Much contemporary scholarship harks back to three articles: Allison Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 SUP. CT. REV. 63; Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36 (1964).
5. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 866 (1987) (Stevens, J., dissenting) (acknowledging "great uncertainty" about the Supreme Court's takings decisions); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24 (1978) (noting the Court's difficulty in determining what constitutes a taking); BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 8 (1977) ("Indeed, in many conversations on the subject, I have not encountered a single lawyer, judge, or scholar who views existing case-law as anything but a chaos of confused argument which ought to be set right if one only knew how."); Richard A. Epstein, Takings, Exclusivity and Speech: The Legacy of PruneYard v. Robins, 64 U. CHI. L. REV. 21, 21 (1997) ("The law of takings, with its ever expanding subject matter, is a sprawling affair with very little intellectual coherence."); Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1524 (1991) ("[T]he Court's inability to move beyond ad hoc inquiry and the undeniable difficulty of reconciling the Court's takings cases have provided an irresistible challenge to scholars, who seek to impose order upon this chaos"); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Taking Clause Doctrine, 77 CAL. L. REV. 1299, 1304 (1989) ("[I]t is difficult to imagine a body of case law in greater doctrinal and conceptual disarray."); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697, 1698 (1988) ("[T]he future direction of takings law is very much in doubt."). This critique is not new. See Dunham, supra note 2, at 63 (noting the "crazy-quilt pattern of Supreme Court doctrine").
6. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 866 (1987) (Stevens, J., dissenting) (acknowledging "great uncertainty" about the Supreme Court's takings decisions); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24 (1978) (noting the Court's difficulty in determining what constitutes a taking); BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 8 (1977) ("Indeed, in many conversations on the subject, I have not encountered a single lawyer, judge, or scholar who views existing case-law as anything but a chaos of confused argument which ought to be set right if one only knew how."); Richard A. Epstein, Takings, Exclusivity and Speech: The Legacy of PruneYard v. Robins, 64 U. CHI. L. REV. 21, 21 (1997) ("The law of takings, with its ever expanding subject matter, is a sprawling affair with very little intellectual coherence."); Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1524 (1991) ("[T]he Court's inability to move beyond ad hoc inquiry and the undeniable difficulty of reconciling the Court's takings cases have provided an irresistible challenge to scholars, who seek to impose order upon this chaos"); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Taking Clause Doctrine, 77 CAL. L. REV. 1299, 1304 (1989) ("[I]t is difficult to imagine a body of case law in greater doctrinal and conceptual disarray."); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697, 1698 (1988) ("[T]he future direction of takings law is very much in doubt."). This critique is not new. See Dunham, supra note 2, at 63 (noting the "crazy-quilt pattern of Supreme Court doctrine").
7. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 866 (1987) (Stevens, J., dissenting) (acknowledging "great uncertainty" about the Supreme Court's takings decisions); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24 (1978) (noting the Court's difficulty in determining what constitutes a taking); BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 8 (1977) ("Indeed, in many conversations on the subject, I have not encountered a single lawyer, judge, or scholar who views existing case-law as anything but a chaos of confused argument which ought to be set right if one only knew how."); Richard A. Epstein, Takings, Exclusivity and Speech: The Legacy of PruneYard v. Robins, 64 U. CHI. L. REV. 21, 21 (1997) ("The law of takings, with its ever expanding subject matter, is a sprawling affair with very little intellectual coherence."); Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1524 (1991) ("[T]he Court's inability to move beyond ad hoc inquiry and the undeniable difficulty of reconciling the Court's takings cases have provided an irresistible challenge to scholars, who seek to impose order upon this chaos"); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Taking Clause Doctrine, 77 CAL. L. REV. 1299, 1304 (1989) ("[I]t is difficult to imagine a body of case law in greater doctrinal and conceptual disarray."); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697, 1698 (1988) ("[T]he future direction of takings law is very much in doubt."). This critique is not new. See Dunham, supra note 2, at 63 (noting the "crazy-quilt pattern of Supreme Court doctrine").
8. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 866 (1987) (Stevens, J., dissenting) (acknowledging "great uncertainty" about the Supreme Court's takings decisions); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24 (1978) (noting the Court's difficulty in determining what constitutes a taking); BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 8 (1977) ("Indeed, in many conversations on the subject, I have not encountered a single lawyer, judge, or scholar who views existing case-law as anything but a chaos of confused argument which ought to be set right if one only knew how."); Richard A. Epstein, Takings, Exclusivity and Speech: The Legacy of PruneYard v. Robins, 64 U. CHI. L. REV. 21, 21 (1997) ("The law of takings, with its ever expanding subject matter, is a sprawling affair with very little intellectual coherence."); Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1524 (1991) ("[T]he Court's inability to move beyond ad hoc inquiry and the undeniable difficulty of reconciling the Court's takings cases have provided an irresistible challenge to scholars, who seek to impose order upon this chaos"); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Taking Clause Doctrine, 77 CAL. L. REV. 1299, 1304 (1989) ("[I]t is difficult to imagine a body of case law in greater doctrinal and conceptual disarray."); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697, 1698 (1988) ("[T]he future direction of takings law is very much in doubt."). This critique is not new. See Dunham, supra note 2, at 63 (noting the "crazy-quilt pattern of Supreme Court doctrine").
9. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 866 (1987) (Stevens, J., dissenting) (acknowledging "great uncertainty" about the Supreme Court's takings decisions); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24 (1978) (noting the Court's difficulty in determining what constitutes a taking); BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 8 (1977) ("Indeed, in many conversations on the subject, I have not encountered a single lawyer, judge, or scholar who views existing case-law as anything but a chaos of confused argument which ought to be set right if one only knew how."); Richard A. Epstein, Takings, Exclusivity and Speech: The Legacy of PruneYard v. Robins, 64 U. CHI. L. REV. 21, 21 (1997) ("The law of takings, with its ever expanding subject matter, is a sprawling affair with very little intellectual coherence."); Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1524 (1991) ("[T]he Court's inability to move beyond ad hoc inquiry and the undeniable difficulty of reconciling the Court's takings cases have provided an irresistible challenge to scholars, who seek to impose order upon this chaos"); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Taking Clause Doctrine, 77 CAL. L. REV. 1299, 1304 (1989) ("[I]t is difficult to imagine a body of case law in greater doctrinal and conceptual disarray."); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697, 1698 (1988) ("[T]he future direction of takings law is very much in doubt."). This critique is not new. See Dunham, supra note 2, at 63 (noting the "crazy-quilt pattern of Supreme Court doctrine").
10. This too has been noted by academic commentators. See Peterson, supra note 3, at 1304 ("[O]ne can often predict how the Court will rule in a takings case . . . ."); see also ACKERMAN, supra note 3, Chs. 5, 6 (arguing that takings law, for all its logical incoherence, can be understood by reference to the socially formed understandings of the "Ordinary Observer").
11. Sax, supra note 2.
12. See ACKERMAN, supra note 3, at 11.
13. See, e.g., id. at 4 ("Not for the first time in our constitutional law, it will be impossible to resolve the legal issues without confronting, and resolving as best we can, our philosophical perplexities."); id. at 5 ("Philosophy decides cases; and hard philosophy at that."). Ackerman admits, however, that his view "accords a role to theory far greater than that granted generally by the profession." Id. See also Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 53, 58 (1990) ("This predictability suggests that an unarticulated pattern underlies the Supreme Court's takings jurisprudence. In this Article, I attempt to identify a set of principles that account for and explicate that underlying pattern."). Peterson calls the underlying pattern "unified," and "a single coherent set of principles," id., and sets forth her intention "to provide a complete descriptive theory of when the Court will find that a compensable taking of property has occurred." Id. at 61. She explicitly disclaims the possibility that case law might be understood in terms of principles that were not unified. Id. at n.21. Should the reader be dissatisfied with her theory, Peterson welcomes competing theories, see id. at 61, tacitly assuming that the only response to theory is more/better theory. The present Article implicitly argues against such ambitions to theory. Similarly, Richard Epstein has claimed that his book, Takings, provides a complete takings theory, and that this is a good thing. See Richard Epstein, A Last Word on Eminent Domain, 41 U. MIAMI L. REV. 253, 275 (1986). But still again, more than a decade later, he said: "Theory comes first; case law interpretation and practical politics only after the conceptual underbrush is cleared away." Richard A. Epstein, Pennsylvania Coal Co. v. Mahon: The Erratic Takings Jurisprudence of Justice Holmes, 86 GEO. L.J. 875, 876 (1998). Regrettably, according to Epstein, Holmes' "insights are not disciplined by any overriding theoretical approach." Id. at 891.
14. See, e.g., id. at 4 ("Not for the first time in our constitutional law, it will be impossible to resolve the legal issues without confronting, and resolving as best we can, our philosophical perplexities."); id. at 5 ("Philosophy decides cases; and hard philosophy at that."). Ackerman admits, however, that his view "accords a role to theory far greater than that granted generally by the profession." Id. See also Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 53, 58 (1990) ("This predictability suggests that an unarticulated pattern underlies the Supreme Court's takings jurisprudence. In this Article, I attempt to identify a set of principles that account for and explicate that underlying pattern."). Peterson calls the underlying pattern "unified," and "a single coherent set of principles," id., and sets forth her intention "to provide a complete descriptive theory of when the Court will find that a compensable taking of property has occurred." Id. at 61. She explicitly disclaims the possibility that case law might be understood in terms of principles that were not unified. Id. at n.21. Should the reader be dissatisfied with her theory, Peterson welcomes competing theories, see id. at 61, tacitly assuming that the only response to theory is more/better theory. The present Article implicitly argues against such ambitions to theory. Similarly, Richard Epstein has claimed that his book, Takings, provides a complete takings theory, and that this is a good thing. See Richard Epstein, A Last Word on Eminent Domain, 41 U. MIAMI L. REV. 253, 275 (1986). But still again, more than a decade later, he said: "Theory comes first; case law interpretation and practical politics only after the conceptual underbrush is cleared away." Richard A. Epstein, Pennsylvania Coal Co. v. Mahon: The Erratic Takings Jurisprudence of Justice Holmes, 86 GEO. L.J. 875, 876 (1998). Regrettably, according to Epstein, Holmes' "insights are not disciplined by any overriding theoretical approach." Id. at 891.
15. See, e.g., id. at 4 ("Not for the first time in our constitutional law, it will be impossible to resolve the legal issues without confronting, and resolving as best we can, our philosophical perplexities."); id. at 5 ("Philosophy decides cases; and hard philosophy at that."). Ackerman admits, however, that his view "accords a role to theory far greater than that granted generally by the profession." Id. See also Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 53, 58 (1990) ("This predictability suggests that an unarticulated pattern underlies the Supreme Court's takings jurisprudence. In this Article, I attempt to identify a set of principles that account for and explicate that underlying pattern."). Peterson calls the underlying pattern "unified," and "a single coherent set of principles," id., and sets forth her intention "to provide a complete descriptive theory of when the Court will find that a compensable taking of property has occurred." Id. at 61. She explicitly disclaims the possibility that case law might be understood in terms of principles that were not unified. Id. at n.21. Should the reader be dissatisfied with her theory, Peterson welcomes competing theories, see id. at 61, tacitly assuming that the only response to theory is more/better theory. The present Article implicitly argues against such ambitions to theory. Similarly, Richard Epstein has claimed that his book, Takings, provides a complete takings theory, and that this is a good thing. See Richard Epstein, A Last Word on Eminent Domain, 41 U. MIAMI L. REV. 253, 275 (1986). But still again, more than a decade later, he said: "Theory comes first; case law interpretation and practical politics only after the conceptual underbrush is cleared away." Richard A. Epstein, Pennsylvania Coal Co. v. Mahon: The Erratic Takings Jurisprudence of Justice Holmes, 86 GEO. L.J. 875, 876 (1998). Regrettably, according to Epstein, Holmes' "insights are not disciplined by any overriding theoretical approach." Id. at 891.
16. See Jeanne L. Schroeder, Never Jam To-day: On the Impossibility of Takings Jurisprudence, 84 GEO. L.J. 1531 (1996). Schroeder uses Hegel to argue that a philosophically satisfying takings jurisprudence is impossible, but that a pragmatic practice of takings cases is not only possible but desirable. This Article is an effort to give some shape to the pragmatic jurisprudence toward which Schroeder gestures.
17. See, e.g., ACKERMAN, supra note 3; RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); STEPHEN R. MUNZER, A THEORY OF PROPERTY (1990); John J. Costonis, "Fair" Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 COLUM. L. REV. 1021 (1975); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982); Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986); Glynn S. Lunney, Jr., A Critical Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892 (1992); Peterson, supra note 3; Rose-Ackerman, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
18. See, e.g., ACKERMAN, supra note 3; RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); STEPHEN R. MUNZER, A THEORY OF PROPERTY (1990); John J. Costonis, "Fair" Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 COLUM. L. REV. 1021 (1975); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982); Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986); Glynn S. Lunney, Jr., A Critical Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892 (1992); Peterson, supra note 3; Rose-Ackerman, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
19. See, e.g., ACKERMAN, supra note 3; RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); STEPHEN R. MUNZER, A THEORY OF PROPERTY (1990); John J. Costonis, "Fair" Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 COLUM. L. REV. 1021 (1975); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982); Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986); Glynn S. Lunney, Jr., A Critical Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892 (1992); Peterson, supra note 3; Rose-Ackerman, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
20. See, e.g., ACKERMAN, supra note 3; RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); STEPHEN R. MUNZER, A THEORY OF PROPERTY (1990); John J. Costonis, "Fair" Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 COLUM. L. REV. 1021 (1975); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982); Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986); Glynn S. Lunney, Jr., A Critical Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892 (1992); Peterson, supra note 3; Rose-Ackerman, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
21. See, e.g., ACKERMAN, supra note 3; RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); STEPHEN R. MUNZER, A THEORY OF PROPERTY (1990); John J. Costonis, "Fair" Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 COLUM. L. REV. 1021 (1975); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982); Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986); Glynn S. Lunney, Jr., A Critical Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892 (1992); Peterson, supra note 3; Rose-Ackerman, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
22. See, e.g., ACKERMAN, supra note 3; RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); STEPHEN R. MUNZER, A THEORY OF PROPERTY (1990); John J. Costonis, "Fair" Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 COLUM. L. REV. 1021 (1975); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982); Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986); Glynn S. Lunney, Jr., A Critical Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892 (1992); Peterson, supra note 3; Rose-Ackerman, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
23. See, e.g., ACKERMAN, supra note 3; RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); STEPHEN R. MUNZER, A THEORY OF PROPERTY (1990); John J. Costonis, "Fair" Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 COLUM. L. REV. 1021 (1975); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982); Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986); Glynn S. Lunney, Jr., A Critical Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892 (1992); Peterson, supra note 3; Rose-Ackerman, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
24. See Deuteronomy 34:1. Pisgah was the mountain from which God showed Moses the Promised Land.
25. In recent years, a number of other commentators have also taken a self-consciously pragmatic view of takings law. See, e.g., Daniel R. Mandelker, Investment-Backed Expectations in Taking Law, 27 URB. LAW. 215, 249 (1995) ("[Takings law] reflects a pragmatic judgment about the property interests that courts decide are worth protecting under the Taking Clause. Nothing else is possible."); Richard H. Pildes, Conceptions of Value in Legal Thought, 90 MICH. L. REV. 1520 (1992); Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2184 (1990).
26. In recent years, a number of other commentators have also taken a self-consciously pragmatic view of takings law. See, e.g., Daniel R. Mandelker, Investment-Backed Expectations in Taking Law, 27 URB. LAW. 215, 249 (1995) ("[Takings law] reflects a pragmatic judgment about the property interests that courts decide are worth protecting under the Taking Clause. Nothing else is possible."); Richard H. Pildes, Conceptions of Value in Legal Thought, 90 MICH. L. REV. 1520 (1992); Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2184 (1990).
27. In recent years, a number of other commentators have also taken a self-consciously pragmatic view of takings law. See, e.g., Daniel R. Mandelker, Investment-Backed Expectations in Taking Law, 27 URB. LAW. 215, 249 (1995) ("[Takings law] reflects a pragmatic judgment about the property interests that courts decide are worth protecting under the Taking Clause. Nothing else is possible."); Richard H. Pildes, Conceptions of Value in Legal Thought, 90 MICH. L. REV. 1520 (1992); Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2184 (1990).
28. As the ur-realist Justice Holmes grandly stated: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 461 (1897). (What could be more pretentious than prophecy?) On the importance of Holmes for the Realists,
29. see, for example, AMERICAN LEGAL REALISM 3-4 (William W. Fisher, III et al. eds., 1993).
30. See, e.g., Peterson, supra note 7, at 61-76 (defining property); Sax, supra note 2, at 61 ("Since the question being asked is what sort of protection is to be given to property, the initial task must be to develop a workable concept of what we mean when we talk about property.").
31. See Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1628 (1988) ("The war between popular self-government and strongly constitutionalized property now comes to seem not containable but total.").
32. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) ("As we already have said, this is a question of degree - and therefore cannot be disposed of by general propositions.").
33. Attention to judicial decision, as opposed to academic doctrine, is certainly a hallmark of realism. Efforts to define realism more completely have been around as long as realism itself. See, e.g., Karl Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222, 1226-28 & n.18 (1931). Judging by the number of contemporary efforts to define realism, a satisfactory solution to this problem has yet to be found. Discussing or mentioning the work of a number of contemporary scholars, including herself, Professor Kalman states that "I concede that none of us have come up with a satisfactory definition of realism, but I contend that it is still a useful category for historical analysis." Laura Kalman, Bleak House, 84 GEO. L.J. 2245, 2551 (1996) (reviewing JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995)). See also LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986); AMERICAN LEGAL REALISM, supra note 12 (collecting edited primary sources with commentary); Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 476 n.40 (1988) (reviewing KALMAN, supra) (defining realism through a bibliography of works he finds significant).
34. Attention to judicial decision, as opposed to academic doctrine, is certainly a hallmark of realism. Efforts to define realism more completely have been around as long as realism itself. See, e.g., Karl Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222, 1226-28 & n.18 (1931). Judging by the number of contemporary efforts to define realism, a satisfactory solution to this problem has yet to be found. Discussing or mentioning the work of a number of contemporary scholars, including herself, Professor Kalman states that "I concede that none of us have come up with a satisfactory definition of realism, but I contend that it is still a useful category for historical analysis." Laura Kalman, Bleak House, 84 GEO. L.J. 2245, 2551 (1996) (reviewing JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995)). See also LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986); AMERICAN LEGAL REALISM, supra note 12 (collecting edited primary sources with commentary); Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 476 n.40 (1988) (reviewing KALMAN, supra) (defining realism through a bibliography of works he finds significant).
35. Attention to judicial decision, as opposed to academic doctrine, is certainly a hallmark of realism. Efforts to define realism more completely have been around as long as realism itself. See, e.g., Karl Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222, 1226-28 & n.18 (1931). Judging by the number of contemporary efforts to define realism, a satisfactory solution to this problem has yet to be found. Discussing or mentioning the work of a number of contemporary scholars, including herself, Professor Kalman states that "I concede that none of us have come up with a satisfactory definition of realism, but I contend that it is still a useful category for historical analysis." Laura Kalman, Bleak House, 84 GEO. L.J. 2245, 2551 (1996) (reviewing JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995)). See also LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986); AMERICAN LEGAL REALISM, supra note 12 (collecting edited primary sources with commentary); Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 476 n.40 (1988) (reviewing KALMAN, supra) (defining realism through a bibliography of works he finds significant).
36. Attention to judicial decision, as opposed to academic doctrine, is certainly a hallmark of realism. Efforts to define realism more completely have been around as long as realism itself. See, e.g., Karl Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222, 1226-28 & n.18 (1931). Judging by the number of contemporary efforts to define realism, a satisfactory solution to this problem has yet to be found. Discussing or mentioning the work of a number of contemporary scholars, including herself, Professor Kalman states that "I concede that none of us have come up with a satisfactory definition of realism, but I contend that it is still a useful category for historical analysis." Laura Kalman, Bleak House, 84 GEO. L.J. 2245, 2551 (1996) (reviewing JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995)). See also LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986); AMERICAN LEGAL REALISM, supra note 12 (collecting edited primary sources with commentary); Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 476 n.40 (1988) (reviewing KALMAN, supra) (defining realism through a bibliography of works he finds significant).
37. Attention to judicial decision, as opposed to academic doctrine, is certainly a hallmark of realism. Efforts to define realism more completely have been around as long as realism itself. See, e.g., Karl Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222, 1226-28 & n.18 (1931). Judging by the number of contemporary efforts to define realism, a satisfactory solution to this problem has yet to be found. Discussing or mentioning the work of a number of contemporary scholars, including herself, Professor Kalman states that "I concede that none of us have come up with a satisfactory definition of realism, but I contend that it is still a useful category for historical analysis." Laura Kalman, Bleak House, 84 GEO. L.J. 2245, 2551 (1996) (reviewing JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995)). See also LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986); AMERICAN LEGAL REALISM, supra note 12 (collecting edited primary sources with commentary); Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 476 n.40 (1988) (reviewing KALMAN, supra) (defining realism through a bibliography of works he finds significant).
38. Attention to judicial decision, as opposed to academic doctrine, is certainly a hallmark of realism. Efforts to define realism more completely have been around as long as realism itself. See, e.g., Karl Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222, 1226-28 & n.18 (1931). Judging by the number of contemporary efforts to define realism, a satisfactory solution to this problem has yet to be found. Discussing or mentioning the work of a number of contemporary scholars, including herself, Professor Kalman states that "I concede that none of us have come up with a satisfactory definition of realism, but I contend that it is still a useful category for historical analysis." Laura Kalman, Bleak House, 84 GEO. L.J. 2245, 2551 (1996) (reviewing JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995)). See also LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986); AMERICAN LEGAL REALISM, supra note 12 (collecting edited primary sources with commentary); Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 476 n.40 (1988) (reviewing KALMAN, supra) (defining realism through a bibliography of works he finds significant).
39. In his classic treatise, Louis Jaffe similarly used the practice of review as a way to understand administrative law. LOUIS JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION (1965). A danger of this approach, of course, is that the unwary reader may unselfconsciously, but still wrongly, understand appellate court pronouncement to be the whole of the law.
40. The complete text of the Fifth Amendment is: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. CONST, amend. V.
41. Copious academic writing exists on the historical development of takings doctrine. See, e.g., Robert Brauneis, "The Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon, 106 YALE L.J. 613 (1996); John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252 (1996); William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061 (1994); Paul, supra note 3; Deborah K. Paulus, Reflections on Takings: The Watuppa Ponds Cases, 17 W. NEW ENG. L. REV. 29 (1995); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995) [hereinafter Treanor, Original Understanding]; William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
42. Copious academic writing exists on the historical development of takings doctrine. See, e.g., Robert Brauneis, "The Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon, 106 YALE L.J. 613 (1996); John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252 (1996); William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061 (1994); Paul, supra note 3; Deborah K. Paulus, Reflections on Takings: The Watuppa Ponds Cases, 17 W. NEW ENG. L. REV. 29 (1995); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995) [hereinafter Treanor, Original Understanding]; William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
43. Copious academic writing exists on the historical development of takings doctrine. See, e.g., Robert Brauneis, "The Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon, 106 YALE L.J. 613 (1996); John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252 (1996); William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061 (1994); Paul, supra note 3; Deborah K. Paulus, Reflections on Takings: The Watuppa Ponds Cases, 17 W. NEW ENG. L. REV. 29 (1995); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995) [hereinafter Treanor, Original Understanding]; William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
44. Copious academic writing exists on the historical development of takings doctrine. See, e.g., Robert Brauneis, "The Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon, 106 YALE L.J. 613 (1996); John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252 (1996); William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061 (1994); Paul, supra note 3; Deborah K. Paulus, Reflections on Takings: The Watuppa Ponds Cases, 17 W. NEW ENG. L. REV. 29 (1995); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995) [hereinafter Treanor, Original Understanding]; William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
45. Copious academic writing exists on the historical development of takings doctrine. See, e.g., Robert Brauneis, "The Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon, 106 YALE L.J. 613 (1996); John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252 (1996); William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061 (1994); Paul, supra note 3; Deborah K. Paulus, Reflections on Takings: The Watuppa Ponds Cases, 17 W. NEW ENG. L. REV. 29 (1995); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995) [hereinafter Treanor, Original Understanding]; William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
46. Copious academic writing exists on the historical development of takings doctrine. See, e.g., Robert Brauneis, "The Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon, 106 YALE L.J. 613 (1996); John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252 (1996); William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061 (1994); Paul, supra note 3; Deborah K. Paulus, Reflections on Takings: The Watuppa Ponds Cases, 17 W. NEW ENG. L. REV. 29 (1995); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995) [hereinafter Treanor, Original Understanding]; William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
47. Copious academic writing exists on the historical development of takings doctrine. See, e.g., Robert Brauneis, "The Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon, 106 YALE L.J. 613 (1996); John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252 (1996); William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061 (1994); Paul, supra note 3; Deborah K. Paulus, Reflections on Takings: The Watuppa Ponds Cases, 17 W. NEW ENG. L. REV. 29 (1995); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995) [hereinafter Treanor, Original Understanding]; William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
48. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Interestingly, a cold reading of the case would not yield this holding. See discussion infra note 32 and accompanying text; Brauneis, supra note 19. This is, however, the significance of Pennsylvania Coal in U.S. legal culture.
49. The dominant late 19th and early 20th century understandings of the constitutional protection of private property appear to have been very different. The Takings Clause (along with the Contract, Privilege and Immunities, and Due Process Clauses) protected private property, and the police power governed the public realm, under which neither property nor a takings claim was possible. There was, therefore, no situation in which government both had authority to act under the police power, and owed compensation under the takings clause. See Brauneis, supra note 19. But see Lynch v. United States, 292 U.S. 571 (1934).
50. Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994).
51. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 396 (1994) (noting that although the city's goals were well-intentioned, just compensation was still required); see also Michelman, supra note 14, at 1626.
52. "Not every individual gets a full dollar return in benefits for the taxes he or she pays; yet, no one suggests that an individual has a right to compensation for the difference between taxes paid and the dollar value of benefits received." Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 n.21 (1987).
53. Regulatory takings claims brought by landowners arguing that regulations are confiscatory in effect have sometimes been called "inverse condemnation" actions. See, e.g., Suitum v. Tahoe Reg'l Planning Agency, 117 S. Ct. 1659 (1997).
54. See Frank Michelman, The Common Law Baseline and Restitution for the Lost Commons: A Reply to Professor Epstein, 64 U. CHI. L. REV. 57, 67 (1997) (The right to compensation "falls out of a judgment of political fairness: if, in the general context of American constitutionalism, it is unfair for politics to impose on property in the challenged way without compensation, then property has been taken, and vice-versa."); Sax, supra note 2, at 57 ("What seemed to concern the early writers was not the fact of loss but imposition of loss by unjust means. It was the exercise of arbitrary or tyrannical powers that were sought to be controlled.").
55. See EPSTEIN, supra note 9.
56. See Kaplow, supra note 9.
57. Advocacy may play an important role in such characterizations. The claimant's case in Pennsylvania Coal was argued before the Supreme Court by former Solicitor General Davis, whose name still adorns the Wall Street firm of Davis, Polk & Wardwell. Justice Holmes said of Davis, "[o]f all the persons who appeared before the Court in my time, there was never anybody more eloquent, more clear, more concise, or more logical than John W. Davis." MARY ANN GLENDON, A NATION UNDER LAWYERS 34 (1994).
58. U.S. CONST. amend. V. Professor Rubenfeld has argued that courts should pay more attention to "public use" as a criterion for distinguishing compensable government actions, takings, from mere diminutions. See Rubenfeld, supra note 9.
59. See Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 11 (1989).
60. In his famous concurrence in Ashwander v. Tennessee Valley Authority, Justice Brandeis wrote: The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Ashwander, 297 U.S. 288, 347 (1936) (citations omitted). See also, e.g., Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589-90 (1991).
61. 452 U.S. 264 (1981).
62. Id. at 297 (footnote omitted). In some cases, claimants may be able to show that application for a variance would have been futile. See, e.g., Herrington v. County of Sonoma, 834 F.2d 1488 (9th Cir. 1987), as amended & reh'g denied, 857 F.2d 567 (9th Cir. 1988), cert. denied, 489 U.S. 1090 (1989).
63. Dolan v. City of Tigard, 512 U.S. 374 (1994), involved an exaction of title to an easement in exchange for a variance to a zoning ordinance. Thus, not the regulation, but relief from the regulation, took title to property.
64. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (emphasis added).
65. Pennsylvania Coal, however, reached the statute prior to its application. See id. at 394.
66. See U.S. CONST, art. III, § 2; cf. Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. 1994) (en banc), aff'd, 28 F.3d 1171 (Fed. Cir. 1994). In addition, U.S. Supreme Court appellate jurisdiction over state high court cases requires a final judgment of the state court. See 28 U.S.C. § 1257 (1998); see also San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981).
67. The ripeness doctrine is generally viewed as being both constitutionally required and judicially prudent. The constitutional mandate results from Article III's requirement that federal courts hear only cases or controversies. The prudential restrictions result from the fact that most courts would rather avoid speculative cases, defer to finders of fact with greater subject matter expertise, decide cases with fully-developed records, and avoid overly broad opinions, even if these courts might constitutionally hear a dispute. See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993); Gregory M. Stein, Regulatory Takings and Ripeness in the Federal Courts, 48 VAND. L. REV. 1, 11 (1995).
68. See, e.g., Lucas v. South Carolina Coastal Council, 506 U.S. 1003 (1992) (particularly the dissenting opinions and the separate statement of Justice Souter); MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 348 (1986) (requiring "a final and authoritative determination of the type and intensity of development legally permitted on the subject property"); Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) (holding that respondent's claim was not ripe because he had not yet received a decision concerning his ordinance application nor used the available state procedures for receiving just compensation); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 630 (1981) (holding that in the absence of a final state court judgment, there is no appellate jurisdiction under 28 U.S.C. § 1257); Agins v. City of Tiburon, 447 U.S. 255, 260 (1980) (unanimous decision) ("[B]ecause the appellants have not submitted a plan for development of their property as the ordinances permit, there is as yet no concrete controversy regarding the application of the specific zoning provisions."); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 137 (1978). In Penn Central, the court dismissed a claim of categorical takings: "Since appellants have not sought approval for the construction of a smaller structure, we do not know that appellants will be denied any use of any portion of the airspace above the Terminal." Id.
69. Pennell v. City of San Jose, 485 U.S. 1, 9-10 (1988).
70. 452 U.S. 264 (1981).
71. Id. at 295.
72. But see Babbitt v. Youpee, 117 S. Ct. 727 (1997).
73. Suitum v. Tahoe Reg'l Planning Agency, 117 S.Ct. 1659, 1666 n.10 (1997) (alterations in original) (citations omitted).
74. 474 U.S. 121 (1985).
75. Cleanwater Act of 1988, 33 U.S.C. §1344.
76. Riverside, 474 U.S. at 126.
77. Id. at 127. See also MacDonald, Somer & Frates v. County of Yolo, 477 U.S. 340, 348 (1986).
78. 117 S. Ct. 1659 (1997).
79. The Court cited Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985) and MacDonald, 477 U.S. 340 (1986).
80. See Suitum, 117 S. Ct. at 1667.
81. Id.
82. See id.
83. See id. In the event that Suitum sold a TDR to a third party, that third party would still have to seek the Agency's authority to use the TDR. Permission might or might not be granted, depending on the circumstances. The Court found that this did not constitute a decision regarding Suitum's land. At most, the risk that the Agency would deny permission to use the TDR discounted the value of the TDR. See id. at 1668-69.
84. See id.
85. U.S. CONST. amend. V.
86. For these purposes there is no difference between injunctive and declaratory relief.
87. See 28 U.S.C. § 1491 (1988).
88. There are exceptions. The Tahoe Regional Planning Agency, the defendant in Suitum, is an interstate agency, approved by Congress. Suitum sued for monetary compensation, in federal district court, under 42 U.S.C. § 1983. See Suitum, 117 S. Ct. at 1663.
89. 5 U.S. (1 Cranch) 137 (1803).
90. In 1975 a leading commentator maintained that the proper remedy for excessive limitation on the use of property was invalidation under what appears to be a substantive due process analysis, rather than compensation: [I]f regulative legislation is so unreasonable or arbitrary as virtually to deprive a person of the complete use and enjoyment of his property, it comes within the purview of the law of eminent domain. Such legislation is an invalid exercise of the police power since it is clearly unreasonable and arbitrary. It is invalid as an exercise of the power of eminent domain since no provision is made for compensation. 1 NICHOLS, EMINENT DOMAIN §1.42(1) (3d rev. ed. 1975) (quoted in Agins v. City of Tiburon, 598 P.2d 25, 28 (Cal. 1979) (emphasis omitted)). Stripping away the verbiage, it is worth noting that government actions that take all use of property are not necessarily "clearly unreasonable and arbitrary." For example, First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), involved a prohibition on reconstruction of buildings on a floodplain, enacted after a fatal flood. Lucas involved building restrictions enacted by the State of South Carolina in the wake of Hurricane Hugo and its 29 fatalities and six billion dollars worth of damages in South Carolina. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003,1037 n.1 (1992) (Blackmun, J., dissenting); id. at 1075 & n.13 and accompanying text.
91. See U.S. CONST. Art. I, § 9, cl. 7.
92. 28 U.S.C. § 1491(a)(1) (1998).
93. See Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 12 (1990); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984); United States v. Causby, 328 U.S. 256, 267 (1946); see also Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21 (1940).
94. As a general matter, takings judgments are not paid from moneys appropriated by the act authorizing the governmental action subsequently deemed a taking. Instead, Congress has established a judgment fund, out of which judgments adverse to the government are paid. So, the requirement of Article I, § 9, that expenditures be authorized by the legislature, has been met.
95. "The proper inquiry is not whether the statute 'expresses an affirmative showing of congressional intent to permit recourse to a Tucker Act remedy,' but rather 'whether Congress has in the [statute] withdrawn the Tucker Act grant of jurisdiction to the [Claims Court] to hear a suit involving the [statute] "founded . . . upon the Constitution."'" Preseault, 494 U.S. at 12 (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 126 (1974)). See also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984) (relying on Regional Rail Reorganization Act Cases).
96. In the context of Bivens actions, the Supreme Court has expressly rejected an invitation to issue money judgments against agencies without an explicit expression of congressional intent to grant such damages. See FDIC v. Meyer, 510 U.S. 471, 486 (1994). ("If we were to recognize a direct action for damages against federal agencies, we would be creating a potentially enormous financial burden for the Federal Government.")
97. 598 P.2d 25 (Cal. 1979), aff'd, 447 U.S. 255 (1980).
98. Id. at 29.
99. Id. at 31. It could be argued that, because the California Supreme Court held that the regulation did not work a taking, the discussion of remedies was dictum. Subsequent decisions, however, have treated this discussion as a holding. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 312 n.5 (citing cases).
100. See Agins, 447 U.S. at 259.
101. See id. at 263.
102. See First English, 482 U.S. at 310. Four times this decade, we have considered similar claims and have found ourselves for one reason or another unable to consider the merits of the Agins rule. See McDonald, Sommer & Frates v. Yolo County, 477 U.S. 340; Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172; San Diego Gas & Electric Co., supra; Agins v. Tiburon, supra. Id.
103. See First English, 482 U.S. 304; see Michelman, supra note 14, at 1616 ("A little work is required to produce a clear statement of the precise question decided by the Court in this case.").
104. See First English, 482 U.S. at 309.
105. See id. The California Supreme Court denied the petition for review.
106. See id. at 310.
107. Agins, 598 P.2d at 29-31.
108. The Court explicitly reserved the questions of whether the ordinance in fact took all use of the property away from the Church, and of whether the ordinance might nonetheless be insulated from Fifth Amendment obligations to pay compensation as an exercise of the state's police power to ensure public safety. See First English, 482 U.S. at 321.
109. Id. at 308-09. As the U.S. Supreme Court's opinion later makes clear, the government may respond to a determination that a regulation works a taking by exercising its power of eminent domain, paying compensation, and pursuing the policy that occasioned the regulation. See id. at 321.
110. Id. at 319.
111. Id. at 321. In light of the fact that nothing in the case below indicated that the Church would not be able to receive compensation for the loss of property during the pendency of the legal proceedings, it is difficult to see how this could be the holding. See id. at 322 (Stevens, J., dissenting).
112. Id. at 315 (citing United States v. Clarke, 445 U.S. 253, 257 (1980)). See also United States v. Dickinson, 331 U.S. 745, 748 (1947) ("The Fifth Amendment expresses a principle of fairness and not a technical rule of procedure enshrining old or new niceties regarding 'causes of action' - when they are born, whether they proliferate, and when they die."); Douglas W. Kmiec, The Original Understanding of the Taking Clause is Neither Weak nor Obtuse, 88 COLUM. L. REV. 1630, 1659 (1988).
113. Jacobs v. United States, 290 U.S. 13, 16 (1933), quoted with approval in First English, 482 U.S. at 315 (emphasis added).
114. See First English, 482 U.S. at 316 n.9.
115. Id.
116. Id. at 315.
117. Justice Stevens, dissenting in First English, maintained that "[t]he Court recognizes that the California courts have the right to adopt invalidation of an excessive regulation as the appropriate remedy for the permanent effects of overburdensome regulations, rather than allowing the regulation to stand and ordering the government to afford compensation for the permanent taking." Id. at 335.
118. See id. at 321; Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 240 (1984).
119. See First English, 482 U.S. at 320; see also United States v. Dow, 357 U.S. 17, 26 (1958) ("In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily."); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. General Motors Corp., 323 U.S. 373 (1945).
120. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984) (citation & footnote omitted).
121. 494 U.S. 1, 16-17 (1990).
122. The Preseaults also claimed that the Rails to Trails Act represented an
123. Effective October 29, 1992, the United States Claims Court became known as the United States Court of Federal Claims. See Federal Courts Administration Act of 1992, Pub. L. No. 102-572, §§ 804, 902, 106 Stat. 4506, 4516 (1992).
124. The Preseaults ultimately prevailed on their claim for compensation. See Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996).
125. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981).
126. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
127. See Preseault, 494 U.S. 1.
128. See Preseault, 100 F.3d 1525 (Rails to Trails Act).
129. Dolan v. City of Tigard, 512 U.S. 374, 384 (1994).
130. This is not to gainsay a central theme of this Article that the takings clause must be understood as a constitutional constraint on government, not a guarantee of individual welfare. See Rubenfeld, supra note 9 at 1142-44 (arguing that the Constitution's protection of the institution of private property is valuable because it restrains government, not because it guarantees autonomy).
131. E.g., United States v. Dickinson, 331 U.S. 745 (1947); Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871).
132. E.g., United States v. Causby, 328 U.S. 256 (1946); Miller v. Schoene, 276 U.S. 272 (1928).
133. E.g., Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1990); see also Raynor v. Maryland Dep't of Health & Mental Hygiene, 676 A.2d 978 (Md. Ct. Spec. App. 1995) (holding that killing of pet ferret for rabies testing was a valid exercise of police power to prevent nuisance and therefore not compensable), cert. denied, 684 A.2d 454 (Md. 1996), cert. denied, 117 S. Ct. 1428 (1997).
134. See discussion of first English, supra note 80, and accompanying text.
135. See Pennel v. City of San Jose, 485 U.S. 1, 10 (1988); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 495 (1987); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 295 (1981); Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978) (noting that the Court has engaged in "essentially ad hoc, factual inquiries"); United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958); United States v. Caltex, Inc., 344 U.S. 149, 156 (1952); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) ("the question depends upon the particular facts").
136. See, e.g., Rose-Ackerman, supra note 3, at 1700 ("ad hoc balancing is impossible to reconcile . . . Takings law should be predictable") (footnotes omitted); Pennell, 485 U.S. at 16 (Scalia, J., dissenting) (arguing that an ad hoc analysis should be limited to regulatory takings cases).
137. See, e.g., Hendler v. United States, 952 F.2d 1364, 1372 (Fed. Cir. 1991) (noting that "court opinions often did not bother to mention exactly what provision of the Constitution was violated" by takings claims); Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S. 226 (1897); Mugler v. Kansas, 123 U.S. 623 (1887).
138. 485 U.S. 1 (1988).
139. Eide v. Sarasota County, 908 F.2d 716 (11th Cir. 1990). See also Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1540 (11th Cir. 1991) (relying on Eide).
140. 961 F.2d 1211 (6th Cir. 1992).
141. Id. at 1215-16.
142. F. W. MATTLAND, THE FORMS OF ACTION AT COMMON LAW 296 (A.H. Chaytor & W.J. Whittaker eds., 1920).
143. Eide, 908 F.2d at 722.
144. Under a formal writ system, choosing the right claim might well be dispositive. It is quite possible that a litigant will find that his case will fit some two or three of these pigeon-holes. If that be so he will have a choice . . . . Or again he may make a bad choice, fail in his action, and take such comfort as he can from the hints of the judges that another form of action might have been more successful. MATTLAND, supra note 114, at 298. In the federal context, the choice of prayer may determine the appropriate court, and even whether or not a suit can be maintained. See 28 U.S.C. §1500 (1998) (depriving the U.S. Court of Federal Claims of jurisdiction during the pendency of the same claim against the United States in another court); Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. 1994) (defining claim in terms of the relief sought).
145. Andrus v. Allard, 444 U.S. 51, 65 (1979).
146. There is some debate over the extent to which one can speak of takings claims in the eighteenth and nineteenth centuries. "Even after the establishment of a compensation requirement, it applied only to interference with physical ownership, and government routinely acted in ways that diminished the value of private property without providing compensation." Treanor, Original Understanding, supra note 19, at 785. But see Brauneis, supra note 19 at 686 (arguing that "regulatory takings" claims were reviewable under other clauses).
147. See Sax, supra note 2, at 38 ("Because most of the takings cases have come to the Supreme Court by way of state regulation, the bulk of 'early' authority in this field is found subsequent to the adoption of the fourteenth amendment.").
148. The district court for Kansas ex rel. Tafts v. Ziebold, responding to an application to remove the case to U.S. circuit court, was explicit. Its opinion is reprinted in Mugler v. Kansas, 8 S. Ct. 273, 277 (1887). But the statesmen who framed the early amendments were at least as wise and had as accurate an understanding of the import of the words in a fundamental law as any who have succeeded them. They were not given to a waste of words, nor the useless and perplexing repetition of the same proposition in different forms. They recognized the fact that private property might be taken for public use under regular process without just compensation, and also that a man might be deprived of his property without due process of law, and yet obtain compensation therefor to the full measure of its value; and the federal government was inhibited from both of these forms of injustice, while the states were left free to establish such rules on the subject as they deemed proper. Id.
149. Mugler v. Kansas, 123 U.S. 623, 657 (1887).
150. See Davidson v. New Orleans, 96 U.S. 97 (1877). The Court noted: It is not a little remarkable, that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. Id. at 103-04 (quoted with approval in Kansas ex rel. Tufts v. Ziebold, reprinted in Mugler, 8 S. Ct. at 277).
151. Id. at 104.
152. Id. at 104.
153. See Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158 (1896). It is claimed, however, that the citizen is deprived of his property without due process of law, if it be taken by or under state authority for any other than a public use, either under the guise of taxation or by the assumption of the right of eminent domain. In that way the question whether private property has been taken for any other than a public use becomes material in this court, even where the taking is under the authority of the State, instead of the Federal, government. Id.
154. See id.
155. See Wurts v. Hoagland, 114 U.S. 606 (1885).
156. 166 U.S. 226 (1897).
157. Id. at 241.
158. See id. at 235 ("In determining what is due process of law regard must be had to substance, not to form.").
159. 260 U.S. 393 (1922).
160. Pennsylvania Coal was decided under the Contract and Due Process Clauses. The Fifth Amendment was mentioned once. See also Block v. Hirsh, 256 U.S. 135, 153 (1921) ("[T]he question is whether the statute is constitutional, or, as held by the Court of Appeals, an attempt to authorize the taking of property not for public use and without due process of law, and for this and other reasons void."); Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893); Mugler v. Kansas, 123 U.S. 623, 653 (1887) (Privileges and Immunities and Due Process Clauses of the Fourteenth Amendment); Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871).
161. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 383-84 (1994); Nollan v. California Coastal Comm'n, 483 U.S. 825, 827 (1987); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 122 (1978).
162. See, e.g., Klopfer v. North Carolina, 386 U.S. 213 (1967) (right to a speedy trial); Miranda v. Arizona, 384 U.S. 436 (1966) (requiring law enforcement officers explicitly to warn in-custodial defendants of Fifth Amendment rights); Gideon v. Wainright, 372 U.S. 335 (1963) (right to counsel).
163. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977) (striking down a city ordinance requiring that only a single family live in each housing unit as violative of Due Process Clause); Goldberg v. Kelly, 397 U.S. 254 (1970) (requiring a hearing before termination of welfare payments).
164. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981) (emphasis omitted). See also id. at 461 ("[T]he standard of review applicable to this case under the Equal Protection Clause is the familiar 'rational basis' test."); McLaughlin v. Florida, 379 U.S. 184 (1964); LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-2, at 1440 (2d ed. 1988).
165. Agins v. City of Tiburon, 447 U.S. 255 (1980).
166. Id. at 260. See also Penn Central, 438 U.S. at 127 (holding that a restriction on use may be a taking "if not reasonably necessary to the effectuation of a substantial public purpose").
167. Agins, 447 U.S. at 261.
168. 483 U.S. 825 (1987).
169. Id. at 837.
170. See id.
171. Id. (citation omitted).
172. 512 U.S. 374 (1994).
173. Id. at 391.
174. See id. at 379.
175. See id. at 396 (acknowledging "the commendable task of land use planning").
176. Id. at 395.
177. See id. at 385; see also Robert H. Freilich & David W. Bushek, Thou Shalt Not Take Title Without Adequate Planning: The Takings Equation After Dolan v. City of Tigard, 27 URB. LAW. 187, 194 (1995) ("The majority of state development exactions cases address whether the dedication or fee requirement is excessive. This determination is reached by evaluating the exaction under proportionality standards, which consider the nature and amount of the exaction in relation both to the impacts generated by the development project and the benefit derived from the exaction.").
178. Dolan, 512 U.S. at 391.
179. Id. at 405 (Stevens, J., dissenting). See also Nollan v. California Coastal Comm'n, 483 U.S. 825, 842 (1987) (Brennan, J., dissenting) ("[T]he Court imposes a standard of precision for the exercise of a State's police power that has been discredited for the better part of this century.").
180. Minnesota v. Cloverleaf Creamery Co., 449 U.S. 456, 466 (1981) (emphasis omitted).
181. Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952).
182. See Nollan, 483 U.S. at 841-42 (noting that action aimed at benefiting public interests does not necessarily affect government's requirement to pay).
183. See Ruckleshaus v. Monsanto Co., 467 U.S. 986 (1984); Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984); Peterson, supra note 7, at 149.
184. 397 U.S. 254 (1970).
185. The Goldberg Court understood Kelly's welfare benefit as property. Subsequent procedural due process cases tended to regard the interest as a liberty - rather than a property, interest - thereby making less obvious the connection between Due Process and Takings Clause review of agency action.
186. Stevens v. City of Cannon Beach, 854 P.2d 449 (Or. 1993) (en banc), was decided on the basis of the precedent in Thornton v. Hay, 462 P.2d 671 (Or. 1969). In Thornton, the Supreme Court of Oregon held that the general public had a right of access to the dry sand area and beachfront lots throughout Oregon. Claimants in Stevens, who were not parties to Thornton, alleged that application of the Thornton understanding of real property in Oregon to them constituted a denial of due process. Justices Scalia and O'Connor agreed. See Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994) (dissent by Justice Scalia, joined by Justice O'Connor, from a denial of a petition for a writ of certiorari); see also Harris v. City of Akron, 20 F.3d 1396 (6th Cir. 1994).
187. In Patel v. Penman, the Ninth Circuit held that "[b]ecause the Takings Clause 'provides an explicit textual source of constitutional protection' against the type of conduct challenged by the Patels, that clause preempts the Patels' substantive due process claim." Patel v. Penman, 103 F.3d 868, 875 (9th Cir. 1996) (citation omitted), cert. denied, 117 S. Ct. 1845 (1997); see also Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1976) (en banc).
188. Nollan v. California Coastal Comm'n, 483 U.S. 825, 834-35 n.3 (1987) (citations omitted).
189. Id.
190. Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).
191. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978); see also Preseault v. United States, 100 F.3d 1525, 1540 (Fed. Cir. 1996) (plurality opinion by Plager, J., joined by three judges, and two judges concurring separately) (noting that the subjective expectations of the property owner are irrelevant).
192. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031-32 (1992) ("Only on [a showing of public nuisance] can the State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management Act is taking nothing."); see also Miller v. Schoene, 276 U.S. 272 (1928); Mugler v. Kansas, 123 U.S. 623 (1887); Sax, supra note 2, at 48-50.
193. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). One might argue, however, that the nuisance alleged in Pennsylvania Coal was not real. See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987).
194. See Keystone, 480 U.S. at 491-93; M & J Coal Co. v. United States, 47 F.3d 1148 (Fed. Cir. 1995).
195. See Penn Central, 438 U.S. 104.
196. See, e.g., Concrete Pipe & Prod., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 645-46 (1993) (finding no reasonable expectation in light of congressional legislation in the pension field); Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 226-27 (1986) (same).
197. See Ruckleshaus v. Monsanto Co., 467 U.S. 986, 1005-06 (1984). Note that intellectual property in chemical formulae is also protected by the patent system. The acquisition of a patent requires disclosure of that which is to be protected; patents are public documents.
198. See United States v. Locke, 471 U.S. 84, 105 (1985) ("Claimants thus must take their mineral interests with the knowledge that the Government retains substantial regulatory power over those interests.").
199. See California Hous. Sec., Inc. v. United States, 959 F.2d 955, 958 (Fed. Cir. 1992).
200. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027-31 (1992).
201. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 133-35 (1978).
202. See California Housing Securities, 959 F.2d 955.
203. For discussion of the literature dealing with the relationship between rational expectations and appropriate property entitlement, see Kaplow, supra note 9; Michelman, supra note 2.
204. "Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern." Nebbia v. New York, 291 U.S. 502, 523 (1934) (holding regulation of contracts appropriate in the circumstances of the case).
205. See Michelman, supra note 2, at 1214-18 (understanding individual anxiety over possible appropriation as a disutility cost).
206. Widespread consensus exists that abrupt changes wrought by the government to property rights are compensable. Robert Brauneis argues that Holmes, in Pennsylvania Coal, was solely concerned that the courts be able to restrain the government from abrupt redefinition of property rights: [C]ourts should presume that certain basic principles embedded in standing positive law reflect the settled will of those dominant forces. Although gradual legal change is inevitable, sudden changes that drastically undermine basic principles, unaccompanied by compensation to disadvantaged parties, should be struck down as inconsistent with the settled will of the community . . . . Brauneis, supra note 19, at 642. The proposition that even slow changes to property rights are compensable is more controversial; resolution of this controversy requires a jurisprudentially satisfying account of the genesis of property entitlements, an account beyond the scope of this article.
207. See Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993).
208. See Lucas v. South Carolina Coastal Council, 424 S.E.2d 484 (S.C. 1992).
209. 854 P.2d 449 (Or. 1993) (en banc). See also McDonald v. Halvorson, 780 P.2d 714 (Or. 1989) (en banc).
210. The claimants petitioned the U.S. Supreme Court for a writ of certiorari and were denied. Justice Scalia (the author of Lucas), joined by Justice O'Connor, dissented from the denial of the petition. Justice Scalia questioned the Oregon Supreme Court's use and understanding of Oregon cases, and strongly suggested that the Oregon Supreme Court was "invoking nonexistent rules of state substantive law." Stevens v. City of Cannon Beach, 510 U.S. 1207, 1211 (1994) (Scalia & O'Connor,JJ., dissenting). Justice Scalia's willingness to judge the Oregon court's understanding of Oregon property law is difficult to square with traditional understandings of federalism, under which states define property law. See Frank I. Michelman, Property, Federalism, and Jurisprudence: A Comment on Lucas and Judicial Conservatism, 35 WM. & MARY L. REV. 301 (1993); Sax, supra note 179.
211. Agins v. City of Tiburon, 447 U.S. 255, 261 (1980).
212. See Sax, supra note 2, at 48 ("[T]he taking provision is undoubtedly an attempt to find some fair balance between the forces of change and the security of established interests . . . .").
213. 3 U.S. (3 Dall.) 386 (1798).
214. This appears to have been a matter of some dispute at the Constitutional convention. See Douglas W. Kmiec, The Coherence of the Natural Law of Property, 26 VAL. U. L. REV. 367, 374-75 (1991).
215. Calder, 3 U.S. (3 Dall.) at 394.
216. Justice Iredell agreed with this much of Chase's position. See id. at 400.
217. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1034 (1992) (Kennedy, J., concurring) ("There is an inherent tendency towards circularity in this synthesis, of course; for if the owner's reasonable expectations are shaped by what courts allow as a proper exercise of governmental authority, property tends to become what courts say it is.").
218. See, e.g., Michelman, supra note 14, at 1612 (discussing Nollan).
219. Lucas, 505 U.S. at 1015.
220. Id. See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Although perhaps often compensable, the right to exclude others from land is not absolute. In the exercise of its police powers, government may "invade" land in a variety of circumstances, for example, to fight fires, to pursue suspected criminals, and to give succor in medical emergencies, without compensating the landowners. Moreover, owners of businesses retain considerably less than plenary rights to exclude others from the premises. For example, the owner of the mall in PruneYard Shopping Center v. Robbins invited "the public" onto the premises, and could not thereafter exclude well-mannered members of the public who wished to exercise their First Amendment rights. See Prune Yard Shopping Center v. Robbins, 447 U.S. 74 (1980); see also Katzenbach v. McClung, 379 U.S. 294 (1964) (holding that under the commerce clause, Congress could require restaurants to accept customers of all races); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (holding that under the commerce clause, Congress could require hotels to accept guests of all races).
221. Lucas, 505 U.S. at 1015. See Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). The rights to descent and devise have also been zealously protected under the takings clause. See Babbitt v. Youpee, 117 S. Ct. 727 (1997); Hodel v. Irving, 481 U.S. 704 (1987). Both Babbitt and Hodel invalidated escheat provisions of the Indian Lands Consolidation Act under the takings clause. See also Andrus v. Allard, 444 U.S. 51, 66 (1979) (holding a regulation that destroyed all economic value of certain personal property was not a taking in part because the rights of descent and devise were undisturbed).
222. Lucas, 505 U.S. at 1015.
223. Id.
224. Florida Rock Indus, v. United States, 18 F.3d 1560, 1567 (Fed. Cir. 1994).
225. See Edward H. Levi, The Sovereignty of the Courts, 50 U. CHI. L. REV. 679 (1980); H.L.A. Hart, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 GA. L. REV. 969 (1977).
226. See Edward H. Levi, The Sovereignty of the Courts, 50 U. CHI. L. REV. 679 (1980); H.L.A. Hart, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 GA. L. REV. 969 (1977).
227. See Ferguson v. Skrupa, 372 U.S. 726, 730 (1936).
228. Dolan v. City of Tigard, 512 U.S. 374, 391 n.8 (1994).
229. Id. at 385.
230. Not even all legislatures are the same. [T]akings jurisprudence should not assume that all governments are identical in takings questions and should therefore look more closely at the governmental entity doing the taking. Citizens may be protected against federal legislative takings by the Madisonian safeguards accompanying a large and diverse legislature; there may be other types of protections against takings available at the local level. A sensible jurisprudence should not assume that what constitutes a taking of property at the federal level is necessarily a taking at the local level, or vice versa. Carol M. Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S. CAL. L. REV. 561, 598 (1984) (footnote omitted).
231. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Nectow v. City of Cambridge, 277 U.S. 183 (1928).
232. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 836 (1987); Dolan, 512 U.S. at 391 n.8. For discussion of the standard of review set forth in the Dolan opinion, see Freilich & Bushek, supra note 149.
233. 292 U.S. 571 (1934). But see Pro-Eco, Inc. v. Board of Comm'rs, 57 F.3d 505, 510 n.2 (7th Cir. 1995) (interpreting Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211 (1986) as overruling Lynch), cert. denied, 116 S. Ct. 672 (1995).
234. Lynch, 292 U.S. at 575 (citing Act of March 20, 1933, ch. 3, 48 Stat. 8).
235. See id. (citing § 17 of the Economy Act, 38 U.S.C. § 717).
236. Id. at 577.
237. Id. at 579.
238. 444 U.S. 164 (1979).
239. Id. at 179 (citations omitted).
240. 448 U.S. 371 (1980).
241. See id. at 424. In United States v. Mitchell, 463 U.S. 206 (1983), the Supreme Court held that the constellation of statutes and regulations establishing federal responsibility for Indian lands created a fiduciary relationship between the federal government and the Indians. Breach of the fiduciary duty owed by the government to the Indians gave rise to a cause of action for damages. For discussion of Lynch, Sioux Nation, and Ruckleshaus, see Peterson, supra note 7, at 123-29.
242. 467 U.S. 986 (1984).
243. See id. at 1010-14. Monsanto further argued that conditioning its ability to participate in the U.S. market or surrender its property rights was an unconstitutional condition. The Supreme Court observed: Monsanto has not challenged the ability of the Federal Government to regulate the marketing and use of pesticides. Nor could Monsanto successfully make such a challenge, for such restrictions are the burdens we all must bear in exchange for "the advantage of living and doing business in a civilized community." Id. at 1007 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 422 (1922) (Brandeis, J., dissenting)).
244. Armstrong v. United States, 364 U.S. 40, 49 (1960) (quoted with approval in Dolan v. City of Tigard, 512 U.S. 374, 384 (1994)). See also Lucas v. South Carolina Coastal Coucil, 505 U.S. 1003, 1071 (1992) (Stevens, J., dissenting); Nollan v. California Coastal Comm'n, 483 U.S. 825, 836 n.4 (1987); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 319 (1987); Keystone Bituminous Coal Ass'n v. DeBenedicts, 480 U.S. 470, 512 (1987); Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 227 (1986); Ruckleshaus v. Monstanto Co., 467 U.S. 986, 986 (1984); Kirby Forest Indus. v. United States, 467 U.S. 1, 14 n.23 (1984); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 656 (1981) (Brennan, J., dissenting); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 140, 148 (Rehnquist, J., dissenting).
245. See Sax, supra note 2, at 49.
246. See Goldblatt v. Hempstead, 369 U.S. 590 (1962).
247. See Florida Rock Indus, v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 513 U.S. 1109 (1995).
248. Dolan, 512 U.S. at 385 (emphasis added).
249. Armstrong, 364 U.S. at 49.
250. Discrimination here means unfairness or inequality which is created by government action in a morally defensible effort to realize a policy, not "invidious discrimination," a putatively legal expression of prejudices which have traditionally been appealed under the Equal Protection Clause of the Fourteenth Amendment. Professor Treanor would reconfigure takings law to accommodate currently noncompensable claims discussed under the rubric of environmental justice. A showing of political process failure should occasion judicial review under the takings clause of decisions to locate environmentally undesirable facilities in minority neighborhoods. Members of "discrete and insular minorities," United States v. Carolene Products, 304 U.S. 144, 152-53 n.4 (1938), should receive compensation because they cannot organize themselves and protect their interests in the political arena. See Treanor, Original Understanding, supra note 19, at 872-78. To my knowledge, no court has attempted to mate the takings and equal protection clauses so forcibly. I strongly suspect, however, that any effort to mitigate racism by providing an equivalent - compensation - would itself be a violation of equal protection. See Brown v. Board of Educ., 347 U.S. 483 (1954). The extent to which decisions to locate an environmentally undesirable facility are influenced by political prejudice is very difficult to determine. See, e.g., Vicki Been & Francis Gupta, Coming to the Nuisance or Going to the Barrios? A Longitudinal Analysis of Enviromental Justice Claims, 24 ECOLOGY L.Q. 1 (1997); Vicki Been, Locally Undesireable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?, 103 YALE L.J. 1383 (1994).
251. Discrimination here means unfairness or inequality which is created by government action in a morally defensible effort to realize a policy, not "invidious discrimination," a putatively legal expression of prejudices which have traditionally been appealed under the Equal Protection Clause of the Fourteenth Amendment. Professor Treanor would reconfigure takings law to accommodate currently noncompensable claims discussed under the rubric of environmental justice. A showing of political process failure should occasion judicial review under the takings clause of decisions to locate environmentally undesirable facilities in minority neighborhoods. Members of "discrete and insular minorities," United States v. Carolene Products, 304 U.S. 144, 152-53 n.4 (1938), should receive compensation because they cannot organize themselves and protect their interests in the political arena. See Treanor, Original Understanding, supra note 19, at 872-78. To my knowledge, no court has attempted to mate the takings and equal protection clauses so forcibly. I strongly suspect, however, that any effort to mitigate racism by providing an equivalent - compensation - would itself be a violation of equal protection. See Brown v. Board of Educ., 347 U.S. 483 (1954). The extent to which decisions to locate an environmentally undesirable facility are influenced by political prejudice is very difficult to determine. See, e.g., Vicki Been & Francis Gupta, Coming to the Nuisance or Going to the Barrios? A Longitudinal Analysis of Enviromental Justice Claims, 24 ECOLOGY L.Q. 1 (1997); Vicki Been, Locally Undesireable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?, 103 YALE L.J. 1383 (1994).
252. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); see also Keystone Bituminous Coal Ass'n v. DeBenedicts, 480 U.S. 470, 491 (1987); Agins v. City of Tiburon, 447 U.S. 255, 262 (1980); Andrus v. Allard, 444 U.S. 51, 67 (1979); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 133-35 (1978).
253. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
254. 232 U.S. 531 (1914).
255. Id. at 533.
256. Pennsylvania Coal, 260 U.S. at 415.
257. See Williamson v. Lee Optical of Okla., 348 U.S. 483 (1955).
258. See, e.g., Section 404 of the Clean Water Act, 33 U.S.C. § 1344 (1988).
259. See 33 U.S.C. §§ 301, 502 (1988) (making the Army Corps of Engineers responsible for the permitting process).
260. Pennsylvania Coal, 260 U.S. at 415.
261. Id. at 416. See also Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting) ("General propositions do not decide concrete cases.").
262. Holmes may well have believed that necessary deduction was impossible in legal reasoning, which operated on the basis of analogy. See Brauneis, supra note 19, at 637.
263. See THE FEDERALIST No. 10 (James Madison).
264. Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).
265. One might respond that judges are even more insulated from both political and economic controls than other civil servants, and therefore should not be given power over political decisions. But judges are held accountable largely by the fact that they are constantly subjected to public scrutiny, and that their most important work product, opinions, are read daily by other lawyers.
266. This does not apply to cases of necessary discrimination, discussed in Part II.B, supra.
267. ACKERMAN, supra note 3, at 48. The reference is to ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH (1962).
268. 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994).
269. Id. at § 552.
270. 42 U.S.C. §§ 4321, 4331-35, 4341-47, 4361-70 (1994).
271. Exec. Order No. 12,630, "Governmental Actions and Interference with Constitutionally Protected Property Rights," 53 Fed. Reg. 8859 (1988).
272. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
273. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
274. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
275. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
276. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
277. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
278. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
279. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
280. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
281. The phrase "Constitutional Moment" is Bruce Ackerman's. See Bruce Ackerman, Constitutional Policies/Constitutional Law, 99 YALE L.J. 453 (1988); Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988) [hereinafter Ackerman, Transformative Appointments] (deciding that the "Reagan Revolution" was not, in fact, a Constitutional Moment, leaving the familiar tripartite periodization of American constitutional history intact); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). Ackerman's constitutional theory has inevitably drawn criticism from within the coiterie. See, e.g., William W. Fisher, III, The Defects of Dualism, 59 U. CHI. L. REV. 955 (1992); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein, Legislative Foreward: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996). The tripartite periodization of American constitutional history punctuated by the these Constitutional Moments, however, has not been much criticized. But see Michael McConnel, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115 (1994). The tripartite periodization is not Ackerman's invention, but instead dates back to the Realists. See GRANT GILMORE, THE DEATH OF CONTRACT (1974); KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY (1960).
282. 514 U.S. 549 (1995).
283. 117 S. Ct. 2365 (1997).
284. See, e.g., Thomas O. McGarity, The Expanded Debate over the Future of the Regulatory State, 63 U. CHI. L. REV. 1463 (1996); Symposium: The New Federalism After United States v. Lopez, 46 CASE W. L. REV. 633 (1996) (especially Mark Tushnet, Living in a Constitutional Moment? Lopez and Constitutional Theory, id. at 845); Sunstein, supra note 242, at 257; Ackerman, Transformative Appointments, supra note 242.
285. See, e.g., Thomas O. McGarity, The Expanded Debate over the Future of the Regulatory State, 63 U. CHI. L. REV. 1463 (1996); Symposium: The New Federalism After United States v. Lopez, 46 CASE W. L. REV. 633 (1996) (especially Mark Tushnet, Living in a Constitutional Moment? Lopez and Constitutional Theory, id. at 845); Sunstein, supra note 242, at 257; Ackerman, Transformative Appointments, supra note 242.
286. See, e.g., Thomas O. McGarity, The Expanded Debate over the Future of the Regulatory State, 63 U. CHI. L. REV. 1463 (1996); Symposium: The New Federalism After United States v. Lopez, 46 CASE W. L. REV. 633 (1996) (especially Mark Tushnet, Living in a Constitutional Moment? Lopez and Constitutional Theory, id. at 845); Sunstein, supra note 242, at 257; Ackerman, Transformative Appointments, supra note 242.
287. See, e.g., Thomas O. McGarity, The Expanded Debate over the Future of the Regulatory State, 63 U. CHI. L. REV. 1463 (1996); Symposium: The New Federalism After United States v. Lopez, 46 CASE W. L. REV. 633 (1996) (especially Mark Tushnet, Living in a Constitutional Moment? Lopez and Constitutional Theory, id. at 845); Sunstein, supra note 242, at 257; Ackerman, Transformative Appointments, supra note 242.