The First Circuit Engrafts “Lenses” Onto Penn Central’s “Three Factors”

There is general agreement that the “polestar” case of Penn Central Transp. Co. v. City of New York is a mess. It’s not just our view (see Gideon Kanner, Making Laws and Sausages: A Quarter Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary 679 (2005)), but that of others who hold competing substantive views;  “[A] ‘totality of the circumstances’ analysis masks intellectual bankruptcy.” Thomas Merrill, “The Economics of Public Use,” 72 Cornell L.Rev. 61, 92 (1986);  “Sometimes the Penn Central analysis has been described as a ‘balancing test,’ but this seems nonsensical because the Penn Central factors are completely incommensurate.” John Echeverria, 23 UCLA Jour. Env. L. & Pol’y. 171, 208.

After all, what can you say about a case that lacks a holding because in it SCOTUS confessed that it has been “simply unable” to state the elements of an inverse condemnation action, and all it can offer is three ad hoc “factors” whose consideration may — or then again, may not — yield a precedentially usable decision. Why this field of law, and this field alone, should so baffle the intellectually  mighty U.S. Supreme Court (and its elite clerks) has never been explained — not really. As Judge James L. Oakes aptly put it, the Penn Central decision “permits purely subjective results, with the conflicting precedents simply available as makeweights that may fit pre-existing value judgments”); it merely allows judges to reach whatever results they choose, with Penn Central providing a convenient makeweight.  (56 Wash. L.Rev. 583 (1981).

Nonetheless SCOTUS has decreed that the incomprehensible doctrinal mish-mash that is Penn Central is to be regarded as the “polestar” of the pertinent law. That would be bad enough, but now we get a further complication. The U.S. Court of Appeals for the First Circuit has just complicated this wretched intellectual mess some more in The Maine Education Association Benefits Trust v. Cioppa, 695 F.3d 145 (1st Cir, 2012).  You might think that considering Penn Central’s vague “three factor test” without an indication of what weight to assign to each “factor,” would be bad enough, wouldn’t you? Nope. In the First Circuit those “factors” aren’t even real factors to be considered. Quoth their Lordships:

“[T]he context-sensitive ‘Penn Central’ factors operate not as a ‘checklist of items that can be ticked off as  fulfilled or unfulfilled,’ but rather as ‘lenses through which a court can view and process the facts of a given case.”

“Lenses”? What the hell does that mean? Will we now need to become legal opticians to discern how the courts should rule in these cases?

Once upon a time it was said that even a bad rule of law is better than a legal regime in which there is no rule at all. It appears that we have arrived at that point. Professor Paul M. Bator hit the bull’s eye back in 1990 when he presciently observed in his critique of the Supreme Court’s performance:

“[A]ll too often, when when the Supreme Court decides a case, instability and uncertainty and confusion are not alleviated, but, rather, reinforced.” Paul M. Bator, What Is Wrong With the Supreme Court? 51 U. Pitt. L.Rev. 673 91990).


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