Palazzolo, Lucas, and Penn Central: the Need for Pragmatism, Symbolism, and Ad Hoc Balancing

Publication year2021
CitationVol. 80

80 Nebraska L. Rev. 465. Palazzolo, Lucas, and Penn Central: The Need for Pragmatism, Symbolism, and Ad Hoc Balancing

F. Patrick Hubbard(fn*)


Palazzolo, Lucas, and Penn Central: The Need for Pragmatism, Symbolism, and Ad Hoc Balancing


TABLE OF CONTENTS


I. Two Perspectives on Opinions: Symbolic and
Managerial . . . . . . . . . . . . . . . . . . . . . . . . . 467 R
II. Penn Central and the Ad Hoc Balancing Approach:
Pragmatic Triumph of Symbol . . . . . . . . . . . . . . . . . 471 R
A. Reasons for Approach: Complexity and Lack of
Independent Definition of Property . . . . . . . . . . . . 472 R
B. Effects of Approach: Delegation and Uncertainty. . . . . . 477 R
III. Lucas and the Categorical Total Takings Test: Symbol
in the Guise of Managerial Categories . . . . . . . . . . . . 479 R
A. Lucas v. South Carolina Coastal Council . . . . . . . . . . 480 R
B. Vagueness of the Test . . . . . . . . . . . . . . . . . . . 482 R
1. Recognition of Problems in Lucas . . . . . . . . . . . . 483 R
2. Treatment of Problems in Lucas . . . . . . . . . . . . . 484 R
a. Summary . . . . . . . . . . . . . . . . . . . . . . . 484 R
b. Pre-existing Rights and Limits . . . . . . . . . . . 487 R
C. Narrowness of the Test . . . . . . . . . . . . . . . . . . 492 R
D. Conclusion: Symbolic Nature of the Test . . . . . . . . . . 492 R
IV. Impact of the Total Takings Test: Managerial Failure
as a Result of Uncertainty and Limited Effect . . . . . . . . 493 R
A. Cases Illustrating Treatment of Issues Raised by
Test. . . . . . . . . . . . . . . . . . . . . . . . . . . . 493 R
1. Denominator Problems. . . . . . . . . . . . . . . . . . 494 R
2. Value of Permitted Uses . . . . . . . . . . . . . . . . 498 R
3. Pre-existing Rights and Limits . . . . . . . . . . . . . 499 R
a. Approaches . . . . . . . . . . . . . . . . . . . . . 499 R
b. Discussion . . . . . . . . . . . . . . . . . . . . . 501 R


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B. Case Study: South Carolina . . . . . . . . . . . . . . . . 504 R
C. Random Selection of Cases Citing Lucas . . . . . . . . . . 506 R
V. Palazzolo v. Rhode Island: The Limits of Categorical
Tests and Advantages of Ad Hoc Balancing . . . . . . . . . . . 507 R
A. Facts and Procedural History . . . . . . . . . . . . . . . 508 R
B. Supreme Court Decision . . . . . . . . . . . . . . . . . . 508 R
C. Impact . . . . . . . . . . . . . . . . . . . . . . . . . . 511 R
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 513 R


"For the Snark was a Boojum, you see."**

The constitutional right to compensation for a governmental taking of property(fn1) is relatively easy to apply in situations involving a straightforward, physical appropriation of land for a public use like a highway. However, difficulties arise when governmental action consists only of rules that limit an owner's use of land. In most situations, these limits are viewed as burdens an individual is properly subject to as a citizen and land owner.(fn2) From this

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perspective, the exercise of the "police power" of the government, which has traditionally been used to prohibit public and private harms, does not usually involve a taking of property, even if the restriction involved results in a substantial loss in the economic value of the land.(fn3) For example, zoning restrictions on land generally do not constitute takings.(fn4) However, some restrictions on land use are unwarranted or too extensive and, therefore, constitute a "regulatory taking." Compensation is required in such cases, because the cost "should be borne by the public as a whole."(fn5) The problem is thus one of line-drawing: How does one distinguish mere regulation from a regulatory taking?

I. TWO PERSPECTIVES ON OPINIONS: SYMBOLIC AND MANAGERIAL

As with any area of law, the problem of identifying regulatory takings can be viewed from many perspectives, each of which is true to some extent.(fn6) This Article contrasts two perspectives on Supreme Court regulatory takings opinions.

First, these opinions can be viewed as serving the symbolic function of simultaneously endorsing two opposing sets of values, the values furthered by the individual right to use property and the values served by governmental regulation of the property.(fn7) From this per-

468

spective, the concern is to recognize the importance of rights and of regulation and to avoid giving primacy to either. Clear guides for decisionmaking are avoided because clarity can result in a broad, strategic endorsement of one set of values as more important than the other. Though clarity is generally preferred in Supreme Court opinions, it may not be possible or desirable where there is no cultural agreement on the relative importance of competing values. Thus, a choice of vague rules over clear per se rules would reflect a pragmatic acceptance of the lack of cultural agreement on how to resolve the conflict between rights and regulation.(fn8) At a deeper level, this symbolic approach also avoids the need to acknowledge and address the more general and basic problem of the lack of a generally accepted objective guide to constitutional interpretation.(fn9)

The second perspective is more concerned with the substance of opinions and views the United States Supreme Court in terms of its managerial role at the apex of two parallel hierarchal judicial systems -the federal(fn10) and the state.(fn11) Because the likelihood of Su-

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preme Court review of a decision from either system is extremely small,(fn12) the cases accepted for review must be used to maximum effect if the Supreme Court is to fulfill its managerial role of providing clear guidance to the lower courts, to the governmental officials involved in making the regulations at issue in a takings case, and to the owners of land subject to regulation.(fn13) In effect, the Supreme Court is like a corporate CEO who has very limited opportunities to issue memorandums on policy and procedures to guide branch offices all over the nation (and the customers of these branch offices) on how to do a complex task involving a wide range of circumstances.

This managerial analogy cannot be pushed too far. The Supreme Court is a multimember common law court, reacting to petitions for certiorari and assisted only by a small staff of novice law clerks. There are limits on the ability of such an institution to provide detailed management guidelines.(fn14) Nevertheless, many people argue that the concept of the "rule of law" necessitates that Supreme Court opinions play a substantively meaningful role in determining the precise results that are reached by the lower courts. Otherwise, lower court decisions will not be based on objective standards. As a result, the "rule of law" will be frustrated by the uncertainty, contradiction, and instability that will occur.(fn15) Moreover, the court occasionally

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adopts a clearly managerial perspective-for example, the adoption of a clear, easily applied rule to guide police in Miranda v. Arizona.(fn16)

Though Supreme Court opinions are not exclusively "symbolic" or "managerial," it is possible to categorize an opinion based on the degree to which it clearly prescribes the result in subsequent cases. An opinion can be viewed as symbolic to the extent that it endorses conflicting value schemes and avoids clear, per se rules that would clearly result in the "victory" of one of the competing schemes. In contrast, a managerial opinion clearly indicates value preferences and explicitly guides decision-making. Such explicitness is particularly important to the managerial role of the Supreme Court in an area like regulatory takings because there is no cultural consensus about the relative importance of the competing values. Given this lack of consensus, vague rules will provide little substantive guidance on the "right result" to lower courts.

Opinions that fulfill the symbolic function should not necessarily be regarded as unimportant or as bad judicial craftsmanship. Symbols, rhetoric, and narratives about power are important.(fn17) Controversies over burning the American flag or flying the confederate battle flag demonstrate the emotional depths involved with symbols. Views about property rights and about owners' legal responsibilities to the community also involve deeply held, emotion-stirring beliefs.(fn18) Consequently, a symbolic opinion is important to these beliefs, even if it simply affirms both values or uses language that appears to prefer one value over the other but avoids adopting a clear substantive standard

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that would, in fact, adopt such preference. Moreover, where it is not possible to craft a clear definite rule, a vague symbolic standard may be the best that can be expected of judges.(fn19) In such cases, a vague, imprecise "rule" which provides a structure for addressing specific circumstances in the context of a fair process will be a better way to address a problem than a clear formal substantive rule that does not respect factual distinctions that are important to differing value schemes.(fn20)

II. PENN CENTRAL AND THE AD HOC BALANCING APPROACH: PRAGMATIC TRIUMPH OF SYMBOL

By the 1970s, the Supreme Court had openly abandoned the search for an explicit test or standard of when a regulatory taking occurs. Penn Central Transportation Co. v. New York City(fn21) summarized the lack of a substantive test for identifying a taking as follows:

The question of what constitutes a "taking" for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty. While this Court has recognized that the "Fifth Amendment's guarantee . . . [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," this Court, quite simply, has been unable to develop any "set formula" for determining when "justice and
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