The Associated Press reports via the Washington Post that in his congressional testimony, Justice Scalia allowed as how there are too many federal judges, deciding too many criminal cases, and that — here it comes — the quality of the federal judiciary is not what it used to be. See Associated Press, Justice Scalia Says Too Many Federal Judges, Too Many Federal Crimes Harm Federal Judiciary, Washington Post, October 5, 2011. Click here .
We agree, with the sorry state of federal eminent domain and inverse condemnation law being respectively Exhibits A and B for Justice Scalia’s concerns. Forty years ago, the late, great Professor Arvo Van Alstyne described the relevant decisional law as “largely characterized by confusing and incompatible result, often explained in conclusionary terminology, circular reasoning, and empty rhetoric.” (44 S. Cal. L. Rev. at 2). Not much has changed for the better and much has grown worse, notably the law of inverse condemnation.