Picturing takings.

• Author: Fennell, Lee Anne
• Position: Takings doctrine - III. Judicial Takings, Illustrated through Conclusion, with footnotes, p. 88-114

3. JUDICIAL TAKINGS, ILLUSTRATED

My discussion to this point has been limited to takings (or alleged takings) by actors in the political branches. Can a court, by issuing a decision impacting property rights, also commit a taking within the meaning of the Takings Clause? This question was raised but not resolved in Stop the Beach, a case that involved a challenge by beachfront property owners to a Florida Supreme Court decision. (98) The U.S. Supreme Court unanimously held that the Florida Supreme Court had not committed a judicial taking. (99) The facts of the case are less important for our purposes than the disagreements that erupted among the Justices about the existence and possible contours of a judicial takings doctrine. A four-Justice plurality (Justice Scalia, joined by Chief Justice Roberts and Justices Alito and Thomas) whole-heartedly endorsed the idea of a judicial takings doctrine. The plurality maintained that a taking is a taking, regardless of which branch of government commits it. (100) The other Justices expressed doubts about the viability of such a doctrine, as well as concern about a number of procedural and remedial issues that would be raised it such a doctrine were recognized. (101) The result was an inconclusive mass of contradictory signals that has become, for property scholars at least, an endless source of speculation, concern, and fascination.

A primary worry expressed in the judicial takings literature to date is that an unconstrained doctrine could have devastating effects on the evolution of the common law of property. (102) Indeed, without any limiting principles capable of saving the ordinary adjudication of property disputes from takings scrutiny, the enterprise of recognizing judicial takings at all seems doomed from the outset. (103) Some might respond that the enterprise should be doomed--that judicial takings is a bad idea for a whole host of practical and conceptual reasons. But because four members of the Supreme Court have indicated a willingness to entertain judicial takings challenges, it is worth giving attention to the question of how such a doctrine might be limited. (104) Like others who have written on this topic, I will assume in what follows that there can be such a thing as judicial takings. However, I will suggest some plausible limiting principles that could make judicial takings something rarely encountered in the wild. (105)

These limiting principles emerge when we adapt the diagrams above to the judicial context. Three features are of particular importance. The first is the presence of two different, and differently policed, boundaries. The second is the category of confiscatory nontakings. The third is a feature notable for its absence in the earlier diagrams: a fourth category to add to the triad of no-go zone, free zone, and pay zone. Following Calabresi and Melamed, there must be (and is) a fourth possibility in which the government does not take if the would-be takee pays. Although this possibility has limited applicability to legislative and administrative takings, (106) it can play a significant role in judicial decisionmaking, as we will see. Each of these features suggests a set of potential limits on a judicial takings doctrine. In combination, they could render judicial takings a nearly null set.

My discussion here will be limited in two important ways. First, I focus only on how a judicial takings doctrine might be developed to govern stand-alone judicial decisions that alter or reinterpret property rights. For example, a court might make a pronouncement in a trespass case that affects the rights of many beachfront property owners, completely independently of any action by a legislature or agency. In contrast, many scenarios in which judicial takings challenges might arise (including Stop the Beach itself) involve judicial ratification of legislative or executive acts that themselves allegedly constitute takings. These scenarios tangle together two questions: 1) what forum(s) should hear the challenge to the initial governmental act? and 2) do the effects of the court's decision, above and beyond ratifying the underlying act of the nonjudicial actor, constitute a taking? (107) The first question implicates procedural issues that I will not address here, (108) while the second question can be analyzed as if it were the product of a stand-alone judicial decision.

Second, my goal in this Part, as in the piece as a whole, is analytic rather than normative. I show how limits on a judicial takings doctrine might be formulated in a way that would be consistent with existing taking doctrines. In so doing, I mean neither to endorse those existing doctrines nor advocate any particular way of accommodating judicial takings doctrine to them. Instead, I mean to present some underexplored limiting principles that could render the doctrine more tractable, it that result were desired. Whether or not any judicial takings doctrine should be pursued is another question, and one I do not take up here. (109)

1. Two Boundaries, Again

   Consider again the two contested boundaries set out in Slide 8: the public use line and the regulatory takings line. Thinking about how each of these boundaries maps onto the judicial takings context raises important issues of institutional competence. (110)

   1. Adapting the Public Use Line

      The public use line, as framed above, separates the realm of legitimate government takings with just compensation (the pay zone) from due process violations that flunk the rational basis means-ends test (the no-go zone). In the nonjudicial context, this line is outfitted with a door through which governmental actors consciously enter on the understanding that they must pay. An important initial question is whether judges have access to this same door.

      The fact that courts have no purse might suggest a negative answer (111) for two reasons. First, just as it would violate our society's transaction structure (112) to enter a restaurant and eat a meal if you knew, going in, that you had no means to pay, so too would it seem to be beyond the power of courts to consciously incur financial obligations that they have no wherewithal to meet. This is not a complete answer, however, because courts might order other parties to pay money. (113) The real issue is whether courts have any legitimate basis on which to access those monies to fund their own takings. This brings us to a second reason for doubting the power of courts to undertake eminent domain, suggested by Justice Kennedy, in his Stop the Beach opinion: that the political branches, not the courts, are the proper parties to decide when a taking "makes financial sense." (114)

      Here it becomes helpful to think again about the public use door, and what it is meant to let in and screen out. The basic test for public use is (or at least approximates) the same loose-fitting rational basis test that applies to exercises of the police power generally. (115) Moreover, courts (at least in interpreting federal constitutional requirements) have told legislative and executive branch actors that they can largely decide when to let themselves in. There are some limits, but the overall approach is highly deferential. This is explicable in the context of a means-ends test. Legislative and executive actors are thought to be institutionally competent to make judgments about how best to achieve legitimate ends in a way that courts are not.

      This does not mean, however, that courts are wholly disabled by principles of substantive due process from making means-ends judgments in the course of their work. (116) We could hardly expect a court to decide what counts as possession in a given context, or how an easement is established, or how privity requirements should apply, without resorting at some level to logical inferences about how the world works and what sorts of rules tend to produce what sorts of results. Justice Kennedy's invocation of the fiscal judgments that are implicated by the exercise of eminent domain offers a much more specific basis for limiting the court's role. John Echeverria expands on Kennedy's point, arguing that "only the political branches are in a position to make the tradeoffs between potentially expensive takings and other public funding priorities" and citing the Takings Clause's "virtually unique money-mandating nature" (117)

      Thus, courts appear institutionally ill-positioned to make the fiscally sensitive means-ends judgments that would give them access to the door to the pay zone. Judicial acts of condemnation might be regarded as due process violations in the following sense: the court is selecting property for condemnation, but lacks the budgetary and political data to enable it to coherently make the means-ends assessment that is demanded in such a case. (118) If that assessment is correct, then the judicial takings version of the public use line lacks a door; conscious choices to enter the pay zone are impermissible. The oval is instead bounded by institutional razor wire as shown in Slide 11. (119)

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      Judges might still try to engage in conscious appropriations of private property for public use in a manner akin to the exercise of eminent domain, but, on this account, those acts fall outside the realm of legitimacy as violations of due process.

      One challenge to that story runs as follows. Unless there is some federal limit on state separation of powers that would rule out courts' use of the condemnation power even if state law delegated it to them, it would appear that state law (that is, its failure to make such a delegation) is the only thing that makes the court's act of condemnation impermissible. (120) It might then seem to follow that a given condemnation could be both a compensable taking (properly within the pay zone as a matter of federal law) anda prohibited act under state law. (121) Yet here, as above, (122) it makes sense to limit what...