Best of @RichardAEpstein: Justice Anthony Kennedy in the muddled middle of the takings clause. @HooverInst

Nov 13, 2018, 05:33 AM

Image: Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., USA.; by Joe Ravi

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Justice Anthony Kennedy in the muddled middle of the takings clause. @RichardAEpstein @HooverInst Doctrinal Tangle At SCOTUS by Richard A. Epstein Monday, June 26, 2017 "...The United States Supreme Court recently handed down two opinions that reveal a deep inconsistency in its basic constitutional jurisprudence. In Matal v. Tam, the Court wisely rejected the effort of the Patent and Trademark Office to deny registration of the trade name of the Asian band “The Slants” on the ground that the name disparages Asians. The Court unanimously held first that trademark registration does not convert the name “The Slants” into government (rather than private) speech, which would allow the state vast discretion in deciding whether or not to grant the trademark. Second, the Court held that the First Amendment protects hate speech. In the words of Justice Samuel Alito, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.” The Court’s approach could not have been more different in the much watched takings case of Murr v. Wisconsin. There, a divided Supreme Court could not frame a coherent rule to determine when government regulation goes “too far” so as to constitute a taking of property for public use, such that just compensation is owed. Murr involved Wisconsin landowners who unwisely put two adjacent plots of land under common ownership instead keeping their respective titles in two separate entities. The state pounced on this conveyancing misstep, insisting that its elaborate environmental land use regulations allowed the Murrs to develop only one of these two plots. Without this slip, both could have been developed. In determining what government regulations are compensable, Justice Anthony Kennedy—writing for himself and the four liberal justices—looked to “a complex of factors” articulated in Penn Central Transportation Co. v. City of New York: “(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.” Under this test, the Court held that Wisconsin was entitled to treat the two parcels as one, even though the original boundary lines remained in place. This point was critical because, under Penn Central, an award of compensation depends on the diminution in value of “the” regulated parcel. Finding the right “denominator” for making this measurement is all important. Lump the two parcels together, and only some value is lost. Treat them separately and the value of that parcel is wiped out, guaranteeing compensation. The environmental impact of the common title, which is precisely zero, was never discussed. http://www.hoover.org/research/doctrinal-tangle-scotus