Takings law and appellate decision making.

AuthorPlager, Jay
PositionColloquium on Dolan: The Takings Clause Doctrine of the Supreme Court and the Federal Circuit

The issue with which we are dealing today--takings--is one of the most challenging, interesting and exciting areas of law today. I gather from the presence of so many of you here that you feel so too. The takings clause combines constitutional law with property law, with liberty notions, with history, and with significant impact on the future of this country and our people as a free people. There is something else, though, that we are talking about today that is equally interesting, at least to me. And that is that the subject of today's discussions has not just been takings law, but also appellate opinion writing. Before I turn to some comments about what we have heard today, I want to make some observations on appellate opinion writing and the reading of appellate cases.

When I was a law professor, I joined my colleagues in the wonderful sport of pointing out the ignorance and intellectual limitations of those members of the bar who somehow slipped into the judiciary. I think that was, and remains today, one of the great entitlements of being a law professor. Sometimes I wondered if there were any other entitlements--other than grading exams--but it was certainly a sport in which we all engaged. When I went on the court--which came as a surprise to me, since I had never really harbored any expectations of becoming a judge--I knew in my heart that I lusted after better opinions. I was confident that I could produce them and that they would be clear, bright, and so insightful that any law professor could do nothing but just sit there in awe. Unfortunately, there are several difficulties with that aspiration. First, there is a tension between deciding the case before you and reaching beyond its narrow facts. In many cases that come before us at the appellate level, we really do not know what the facts are. What we have is a distilled version of a record in which there was considerable conflict over who did what to whom, and, as Professor Blumm has noted,l some of these cases go through several rounds--by the time you read through four or five previous decisions, to say nothing of 150 pages of briefing, what you discover is that neither the parties nor the lower courts can really agree on exactly what happened and to whom it happened.

Second, there is the related problem of trying to fit the issue you want to write about to the case that is before you. And sometimes, the opposite is the problem: How you can fit the case to the issue you thought was in it. It is not unheard of to hear a case argued, to think you understand the case, to agree among the panel immediately after the arguments as to what the outcome should be, what the basic theory of our opinion will be, even which judge gets the writing assignment. Then, the judge, some months later while writing the opinion discovers that the case just won(*) Circuit Judge, United States Court of Appeals for the Federal Circuit. LL.M. 1961, Columbia University; J.D. 1958, University of Florida; B.A. 1952, University of North Carolina. (1) Michael C. Blumm, The End of Environmental Law? Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit, 25 Envtl. L. 171, 176 (1995). (2) Fed. R. App. P. 363 (3) James L. Huffman, Dolan v. City of Tigard: Another Step in the Right Direction, 25 Envtl. L. 143, 148 (1995)'t write because there is a gap in the record. Now, one resolution of that problem is what we call a Rule 36, which is a summary affirmance of the trial court.(2) That resolves some of the cases, but more often than not, we have to go back and try to unscramble the facts. The upshot is what Dean Huffman mentioned as the dicta of the case.(3) And what is and is not dicta. And the answer is that we often don't always know because sometimes we aren't quite sure we know the right issue. Professor Blumm noted that he wondered whether the partial takings issue in Florida Rock Industries v. United States(4) had been fully briefed and argued,(5) and the answer to that is no: It hadn't. And the reason it hadn't was because I don't know that anybody recognized the implications of that issue in the case until we discovered that the real problem was that the parties (and, unfortunately, the good trial judge) misunderstood our remand. The result was that evidence of the fair market value that shouldn't have been excluded was, and that distorted the whole decision below.(6) So we had to remand again with instructions as to what to do with the case at trial.(7) We could have withheld giving those instructions and simply remanded it, but then the case would have come back one more time, and the chances of the trial judge or the parties focusing on the issue which we now knew was at the heart of the case was sufficiently small, or at least it was a gamble we were unwilling to take. So, we laid out for the trial judge what we saw as the central issue and said: go back and straighten this mess out, and we will review it one more time. My point simply is that it is not always so easy to decide what is the case before you, what issues must be dealt with, and what is dictum.

There is a third problem that arises in the jurisprudence of opinion writing. As a law professor I could write an article with the words glistening and perfect and with which nobody could quarrel (except the editor of the law review who thought he or she always knew better). But when I write an opinion now, I have sitting over my shoulder two other judges, either one of whom, or both of whom, can say to me: "I would love to join your opinion, but you have to rewrite the first eight pages...

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