Our readers surely know that we often admire the work of Robert Thomas, who runs the www.inversecondemnation.com blog out of Hawaii. He has outdone himself again, with today’s piece dealing with the German expression Zugzwang, as follows.
“No, the title to this post is not based on a character from a future Harry Potter book, but a wonderful phrase borrowed from German into the world of chess. “Zugzwang,” for those of you who are neither German-speakers nor chess players, describes a situation in which a player is in a good position, but any move will put her in a worse position. And move she must.
“That’s what many property owners’ lawyers feel like when that regulatory takings case walks though their doors and they are asked “do we file now or later, and in which court?” You file now, and you may spend years litigating whether the case is ripe because it is alleged that you acted too soon. [See the wretched Estate of Hage case]. Wait, and you will be facing an argument that the statute of limitations has run. Zugzwang. Same goes for which court, state or federal. File in federal court and you’re up against Williamson County and ripeness and the argument that the taking “without just compensation” has not yet even occurred because you haven’t been denied compensation by a state court. File in state court, and when you get to federal court on your federal claims, you will be deemed to have unwillingly litigated them. Zugzwang.”
To which one might add those priceless cases in which a judge holds that the owner’s taking claim is simultaneously too early and too late. No, we are not kidding. Wish we were.