Choice of Law in Takings Cases After Tyler v. Hennepin County (IV)
Yesterday, I finished covering the law and doctrine from 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. As I showed on Tuesday, in the course of reaching that holding, Chief Justice Roberts made a little clearer and more orderly the principles the Court relies on when it makes choice of law decisions in takings litigation. Roberts announced that the Court was following a strategy for takings similar to the strategy it applies for other federal constitutional rights. That general strategy is associated with Indiana ex rel. Anderson v. Brand-start by measuring the right under state law, but measure it with independent sources if the most relevant state laws seem likely to convert the Takings Clause into a dead letter. As I showed yesterday, however, Tyler and earlier takings choice of law cases depart slightly from the Brand strategy. In Tyler, not only did the Court take a second look at the law of Minnesota (consistent with Brand), it also consulted early English and American general law on the question whether surplus equity has been treated as a property right.
To this point, I’ve tried to explain how Tyler follows and how it departs from different lines of doctrine. And also to this point, I’ve reserved judgment on whether the Tyler strategy is convincing normatively. I think the Tyler strategy makes a considerable amount of sense, at least when applied in the contexts in which the Court has applied it. Today, I’ll explain why-and, why I don’t find any of the other strategies likely to be better in the same contexts.
I’m going to make two separate arguments on behalf of the Tyler strategy. One argument relies on originalism. Assume that there are convincing arguments to interpret the Constitution in light of its original meaning. (I know, I know, arguments for originalism are bound to be controversial and contestable. But every justification for any constitutional-interpretation theory is fraught, and I’m persuaded by some of the cases for originalism.)
It is not easy to work out what “private property” meant originally at the Founding. (The problems get even worse if one thinks, as Justice Thomas and I do, that what I’ve been calling “Takings Clause law” in this series is actually grounded in the Privileges or Immunities Clause of the Fourteenth Amendment.) The sources that early American lawyers knew best and followed most took for granted that property exists, without spelling out exactly what it is. At the same time, competent lawyers do pretty well at sorting different legal entitlements into rights of “property,” “contract” and so on without precise working definitions. So the Tyler strategy seems promising. Ordinarily, federal courts can and will just follow state prope
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