Choice of Law in Takings Cases After Tyler v. Hennepin County (III)
Let me sum up what I’ve shown so far in this series about my forthcoming article about the Supreme Court case Tyler v. Hennepin County, Minnesota. As I showed on Monday, the U.S. Supreme Court held that surplus equity constitutes “private property” sufficient to support claims under the Takings Clause. To reach that holding, Chief Justice Roberts (author of the Court’s opinion in Tyler) consulted legal sources that seem odd to property lawyers. Takings cases like Webb’s Fabulous Pharmacies v. Beckwith seem to hold that, “[b]ecause the Constitution protects rather than creates property interests, the existence of a property interest is determined to reference to existing rules or understandings that seem from an independent source such as state law.” But Roberts did not look solely at state law; he also consulted a wide range of sources from early English and American law. As I showed yesterday, however, Roberts was not free-lancing; he was following choice of law principles familiar from federal constitutional law and federal courts doctrine. When state actors seem to be converting a federal constitutional right into a “dead letter,” the Court held in Indiana ex rel. Anderson v. Brand, federal courts can look past the most relevant sources of state law and measure a plaintiff’s federal constitutional rights independently.
In Tyler, the Court followed Brand‘s principle in part. In Brand, to measure Anderson’s contractual rights, the Court looked past the Indiana judicial opinions about her tenure and studied Indiana statutes about teacher tenure and Indiana contracts case law. In Tyler, Minnesota private creditors don’t get to keep surplus equity after foreclosures, the Court noted, and Minnesota state agencies don’t get to keep the equity in foreclosed-on property besides real estate.
But in Tyler the Court followed the Brand principle only in part. The Court consulted many legal sources besides Minnesota sources, from early English and American practice, and from its own case law. And even if the Court had followed Brand in every respect, Tyler could not have revolutionized choice of law doctrine in federal takings litigation. Tyler broke some new ground, but it didn’t and couldn’t displace earlier precedents on different choice of law takings problems.
Today, I want to take up those differences between Tyler and the approach associated with Brand. If yesterday I explained Tyler‘s federal courts context for property lawyers, today I’m explaining the property- and takings-specific aspects of Tyler for federal courts specialists. (One disclaimer before I do that. I have some sense what federal courts specialists think about Tyler, but I’m nowhere near as confident as I am about what property specialists think. So all you federal courts mavens out there: If you think I’m reading your section of the room wrong, I’ll be most grateful to be corrected before my article gets too far into production!)
Tyler departed from the approach associated with Brand in two main respects. Most important, the Court didn’t rely wholly on M
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