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Chapter 6: Implications and Conclusions
Takings Law 1998
As we noted in introducing the Report, the Takings Project
is at a critical juncture. In the last ten years, the Supreme
Court has introduced many of the notions Professor Epstein
promoted in Takings, but its steps have been tentative
and the Court has yet to adopt (or even suggest acceptance
of) the most radical aspects of Professor Epstein’s theory.
These tentative steps and some expansive dicta by the Court’s
most conservative judges have, nonetheless, encouraged greater
activism by lower federal court judges. Most notably, the
Federal Circuit in Florida Rock, Loveladies, and Preseault
has adopted many of the core elements of Professor Epstein’s
blueprint for the Takings Clause.
The combined efforts of developers, conservative foundations,
non-profits and activist conservative judges have thus transformed
the notion that the Taking Clause represents a barrier to
health, welfare and environmental law from the theoretical
musings of a scholar at the fringe of constitutional law into
circuit court precedent. Because the Supreme Court declined
the government’s invitation to review Florida Rock,1
and because the Federal Circuit has exclusive jurisdiction
over most claims stemming from the federal government’s
enforcement of the wetlands provision of the Clean Water Act,
the habitat protection provision of the Endangered Species
Act, and numerous other federal health and environmental laws,
these cases are already impacting federal laws that affect
land use. The success the Project has had to date is a lesson
to those who questioned whether Epstein’s work would
have any practical import and a warning to those who are tempted
to conclude that Epstein’s more extreme notions could
never gain acceptance from the Supreme Court.
In sum, the Takings Project represents a remarkably dangerous,
open question: will central elements of Professor Epstein’s
proposal become Supreme Court precedent. This term, in Eastern
Enterprises v. Apfel, the Supreme Court may address how
expansively the means/ends analysis established in Nollan
and Dolan will be applied. The Federal Circuit’s
opinions in Preseault, Florida Rock and Loveladies
also create conflicts in judicial interpretations of the Takings
Clause, and make it very likely that the Supreme Court will
address the questions of partial takings and the scope of
nuisance exception over the next decade. The direction the
Court will take in these future opinions is, at present, far
from certain. The Takings Project appears to have four, but
not five, solid and consistent votes on the Supreme Court:
Chief Justice Rehnquist, and Justices Scalia, Thomas and O’Connor.2 The
most likely fifth vote, Justice Kennedy has a record on takings
issues that is both less developed and less consistent.3 The
fate of the Project thus depends in large part upon the jurisprudence
of Justice Kennedy and the ideology of the next several justices
appointed to the Court.
For opponents of the Project, that is not a comfortable position.
Like Professor Blumm, we think it should be unlikely that
the Supreme Court "would want to reverse large-scale
social and economic decisions of more representative branches
of government with no basis in precedent or the history of
the Fifth Amendment." But the fact that Judge Plager
and his colleagues on the Federal Circuit have, as an inferior
court, managed to write so many of Professor Epstein’s
ideas into the nation’s case law without getting immediately
reversed, suggests that more radical decisions by the Supreme
Court advancing the Takings Project are at least a possibility.
Conclusion
We began this Report by asserting that neither the means
nor the ends of the Takings Project could withstand scrutiny.
We now can clarify more precisely what we mean. The flaws
with the Takings Project stem from the Takings Clause itself.
If there were a persuasive (or even plausible) basis for the
Project in the text of the Takings Clause, attacking it would
be considerably more difficult. As we, and a long line of
scholars from both sides of the political spectrum have thoroughly
documented, however, the words of the clause and the intent
of its authors simply do not support the result the Project
seeks. It is particularly notable that prominent conservative
scholars such as Robert Bork and Charles Fried, who quite
openly support many of the objectives of the Project, have
felt compelled to join the pile of commentators rejecting
Professor Epstein’s interpretation of the text of the
Constitution.
Stripped of any textual grounding, the Takings Project relies
on judicial activism. It asks conservative judges to find
new development rights in the Constitution, and does so on
behalf of a group — developers — that already does
quite well in the political process. At the very least, the
proponents of the Project must address the reality that they
are promoting judicial activism on behalf of developers and
explain why they favor activism to benefit this segment of
our society but not others.
This raises the principal concern with the legal foundations
and congressional supporters of the Takings Project. We do
not question the sincerity of Senator Hatch’s concern
for the rights of developers, but simply cannot see how his
support for the Takings Project can be squared with his simultaneous
attack on judicial activism. Similarly, it may be appropriate
for the Pacific Legal Foundation to litigate vigorously on
behalf of property owners,4 but PLF’s
demand that judges broadly interpret the Takings Clause is
difficult to reconcile with PLF’s simultaneous demand
that judges narrowly interpret the Equal Protection Clause
to prohibit all forms of affirmative action.
The problems with the judicial seminars conducted by FREE
and the activism of the Federal Circuit run somewhat deeper.
We can think of no good reason why judges need to attend week-long
seminars in resort locations hosted by private, ideologically-driven,
interest groups. Federal judges should not be cloistered,
but there is a line that can and should be drawn between FREE’s
seminars and speaking engagements, teaching assignments, award
ceremonies and even, perhaps, longer educational seminars
conducted by government agencies or bar associations. The
Court’s Administrative Office certainly has the power
to draw this line, but if they fail to do so, Congress should
consider a legislative solution. The integrity of the judicial
process is too important to allow even the appearance of impropriety
that attendance at such judicial seminars can create.
The activism of the Federal Circuit highlights a problem
with granting a single federal appellate court so much power
to shape a critical and highly politicized area of constitutional
law. The idea of organizing portions of the federal appellate
system by subject matter, rather than by region, is a relatively
novel and controversial one.5
Judge Plager, in an article written shortly after he was named
to the Federal Circuit, argued that the critics of such non-regional,
subject matter courts rely on "untested assumptions,"
and proposed that commentators "carefully analyze the
performance of the Federal Circuit" to "illuminate
the rightness or the wrongness of the concerns raised about
subject matter based courts."6 This
Report demonstrates that many of the concerns Judge Plager
identified regarding subject matter courts — the "polarization
or politization around policy issues" and the potential
that judges may be "more readily controlled, or their
selection controlled, in some invidious way"7
— are valid and serious concerns.
The most often cited advantages of subject matter based appellate
courts — the need for judges with subject matter expertise
and the need for uniformity of decision — also do not
apply with any particular force to takings law.8
Unlike other areas in the Federal Circuit’s jurisdiction,
such as patent law or international trade law, takings cases
require no particular expertise or technical background. Takings
cases are often factually complex, and frequently require
a delicate balancing of public and private interests, but
these are tasks federal district court and appellate court
judges from around the country are more than qualified to
perform. Moreover, because federal district and appellate
courts already hear takings challenges to state laws, they
have experience and some expertise in such cases.
Similarly, because takings challenges are constitutional,
rather than statutory,9 and
because state courts and regional federal courts already interpret
the Takings Clause in addressing challenges to state and local
laws, the Federal Circuit cannot provide any meaningful uniformity
to takings law. As long as the Federal Circuit’s opinions
conflict with the opinions given to the same constitutional
text by other state and federal courts, there is no real certainty
for landowners and federal regulators. Only the Supreme Court
can resolve conflicting interpretations of the Takings Clause
and provide any real uniformity or certainty in takings law.
In sum, rather than expanding the jurisdiction of the Federal
Circuit over takings cases as Takings Project advocates are
promoting, we believe Congress should consider eliminating
it. Takings challenges against the federal government raise
broad and fundamental questions about the role of government,
a citizen’s rights and responsibilities within a community
and the nature of private property; these fundamental challenges
probably should be addressed by the entire federal judiciary.
Our final observation goes not to the proponents, but to
the natural adversaries of the Takings Project. To date, state
and local government associations, progressive foundations
and non-profit organizations have made no concerted effort
to combat the Takings Project,10
and, as a result, the Project has been able to progress for
the last decade without a serious public discussion of the
merits of the Project’s means and ends. If the Project
is to be thwarted, it must receive more attention from its
adversaries,11 and
federal, state and local government attorneys must receive
assistance in defending laws that protect the public health
and welfare against constitutional attack. The Takings Project
may wither under scrutiny, but for that to matter, the Project
must be scrutinized outside of the realm of academic law journals
and amicus briefs. The stakes — our nation’s health,
safety and environmental laws — are high enough to justify
such a coordinated response.
Endnotes
1 While it is always
dangerous to read too much into a decision by the Supreme
Court not to review a case, it seems possible here to
also read too little. A petition from the government to
review as important a takings case as Florida Rock
unquestionably got the attention of all the justices. At
the very least, the decision not to review the case would
seem to indicate that there is some discord among the
members of the current court about the appropriate
response to Judge Plager’s handiwork.
2 A decade ago, Justice
O’Connor, joining Justice Stevens’ dissent in
First English, seemed to question the Takings
Project’s objective of imposing upon government
agencies a new and burdensome compensation requirement. See
First English Evangelical Lutheran Church v. County of
Los Angeles, 482 U.S. 304, 322 (1987) (O’Connor J.
joining portions of dissent authored by Stevens, J).
Since then, however, Justice O’Connor has been
uncompromising in her support for the Project. See
Nollan, 483 U.S. 825 (1987) (O’Connor J. joining
majority); Lucas, 505 U.S. 1003 (same); Dolan, 512 U.S.
374 (same); Preseault, 494 U.S. at 20 (O’Connor J.
concurring)(addressing the merits of the Preseault’s
takings claim and suggesting that their claim had merit);
Suitum, 117 S.Ct. 243 (O’Connor J. joining Scalia J.
and Thomas J. in concurring)(arguing that transferable
development rights (TDR’s) received by a property
owner are not relevant to whether a taking has occurred);
Parking Ass’n v. City of Atlanta, 115 S.Ct. 2268
(1995) (O’Connor J. joining Thomas, J. in dissenting
form the denial of certiorari)(arguing that the
means/ends scrutiny established in Nollan and Dolan
should apply to legislative as well as adjudicative
determinations); Stevens v. City of Cannon Beach, 510
U.S. 1207 (1994)(O’Connor J. joining Scalia, J. in
dissenting form the denial of certiorari)("[t]o say
that this case raises a serious Fifth Amendment takings
issue is an understatement"). For a more nuanced,
analysis of each Court member’s voting in takings
cases, See Lazarus, supra Ch. 3, note 48 at
110 - 121.
3 See Lazarus, supra
Ch. 3, note 48 at 109-121.
4 See Oliver Houck, With
Charity for All, 93 Yale L.J. 1415, 1470-74 &
1544-45 (1984) (questioning whether PLF's litigation on
behalf of developers qualifies as "public interest
law" within the meaning of Section 501 (c)(3) of the
United States tax code).
5 See Jorden, Specialized
Courts: A Choice?, 76 Nw U.L. Rev. 745 (1981);
Rochelle Cooper Dreyfuss, The Federal Circuit: A Case
Study in Specialized Courts, 64 N.Y.U.L.Rev. 1
(1989); Richard Revesz, Specialized Courts and the
Administrative Lawmaking System, 138 U.Pa. L.Rev.
1111 (1990); Daniel J. Meador, An Appellate Court
Dilemma and a Solution Through Subject Matter
Organization, 16 U.Mich. J.L.Ref. 471 (1983).
6 S. Jay Plager, The
United States Courts of Appeals, the Federal Circuit and
the Non- Regional Subject Matter Concept: Reflections on
the Search for a Model, 39 Am.U.L.Rev. 853, 866-67
(1990).
7 Id.
8 See e.g. Randall R.
Rader, Specialized Courts: The Legislative Response,
40 Am. L. Rev. 1003, 1008-1009 (discussing the need for
judges with expertise in highly specialized and technical
areas and the need to promote uniformity of decision.)
9 Most of the subject matters
within the jurisdiction of the Federal Circuit are
statutory, rather than Constitutional, and because
Congress has granted the Federal Circuit’s exclusive
jurisdiction over claims under the statute, the Federal
Circuit is the sole interpreter of the statute, subject
only to the discretionary review of the Supreme Court See
generally Plager, supra Ch. 6, note 5 at 853-854.
10 To be clear, a large and
effective coalition has formed to oppose property
rights legislation, including the procedural reform
legislation that has been proposed this term We believe
that a similarly intense and focused opposition must form
to combat all aspects of the litigation campaign being
waged in the nation’s courts.
11 We suspect, for example, that if Judge Plager
was creating rights on behalf of criminal defendants or
minorities instead of developers, he would be a household
name by now, see, eg. H. Lee Sarokin, A Judge
Speaks Out, Nation, Oct. 13, 1997 (Judge Sarokin, one
of the right’s favorite "liberal judicial
activists" explains that he "retired from the
federal bench . . . over the politicization (what I
characterized as the "Willie Hortonizing" of
the federal judiciary."), but note that there is not
a single story in the NEXIS database discussing Judge
Plager’s activism in takings cases. We also find it
hard to believe that Project proponents continue to
derive political mileage from an attacking judicial
activism when the activism they are promoting — the
Takings Project — is perhaps the single most
significant form of judicial activism to come from the
federal courts over the last decade.
To Table of Contents for The
Takings Project: Using Federal Courts
To Attack Community and Environmental Protections
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