Breemer has done good job with his brief, although I wish he had not asked for a separate ruling for circumstances where their is a physical takings(versus categorical takings).
I enjoyed : Hunting the Snark, Not the Quark and Making Laws and Sausages.

Regards,

Claude

Distributed for Conference 2-29-08 http://www.scotusblog.com/wp/uncategorized/petitions-to-watch-conference-of-22908/#more-6662.

You raise a good question. What is the Suprem Court looking for in the next takings case? The short answer is: God only knows, because the Justices evidently don’t know themselves. If you take an overview of SCOTUS inverse condemnation jurisprudence (or more accurately, jurisimprudence), it becomes clear, at least to knowledgeable lawyers, that they haven’t a clue to what they are about. In their hands a traditionally difficult area of the law has by degrees become incomprehensible and self-contradictory. They told us in Penn Central that they make their decisions in this field on an ad hoc basis, and that is true. But that also means that by definition there is no unifying doctrine or even coherence to their output. Add to that the frequent 5 to 4 decisions (in which doctrine has to be shaped to get that fifth vote) and the bottom line becomes clear: they have stumbled from case to case without much of an idea of what they are doing. For my detailed take on all this see Gideon Kanner, Hunting the Snark, Not the Quark: Has the Supreme Court Been Competent in Its Effort to Formulate Coherent Regualtory Takings Law? 30 Urban Lawyer 307 (1998). As for Penn Central, see Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rts. Jour. 653 (2005).

Enjoyed the Yamigiwa case immensely. The overrule Williamson cert petition you refer to above is Peters v. Village of Clifton. Its a physical invasion case out of the 7th Circuit. ( I know because I happen to be lead counsel). If you like, I will send you a copy of the petition. The relevant docket info is here:

No. 07-635 Title: Bruce Peters, Petitioner v. Village of Clifton, Illinois, et al. Docketed: November 15, 2007 Lower Ct: United States Court of Appeals for the Seventh Circuit Case Nos.: (06-3735) Decision Date: August 22, 2007

Also, if you have not seen it yet, you might like the 9th circuit’s Nov. 1, 2007, decision in Crown Point Development v. City of Sun Valley, 2007 WL 4225774, a published opinion burying Armendariz. The mandate recently issued, so its the law now.

Best

Dave Breemer

In reference to John Echeverria.
Here in Maine John Echeverria he managed (though his amicus) to convince the Maine Supreme Court (see Wyer V. Board of Environmental Protection, 2001) that there was no such thing as a Penn. Central analysis.

It’s not that people want to have their cases heard in federal courts it’s that they want their cases heard PERIOD.

As for your other point, see Sinaloa Lake Owners Ass’n. v. City of Simi Valley, 882 F.2d 1398, footnote 4 (9th Cir. 1989).

Government gets to choose the forum, and then if it loses the federal claims that gave rise to federal jurisdiction in the first place, the very fact that it lost is the reason why the federal court had no jurisdiction.

I guess this is why one of the justices in San Remo suggested it was time for a case to come up so the Court could reconsider the Williamson County rule.