We don’t often feature law review articles in this blog, but some deserve mention, and here are two well worth reading.
First, there is William W. Wade, Penn Central’s Ad Hocery Yields Inconsistent Takings Decisions, 42 Urban Lawyer 549 (Summer 2010). Wade is not a lawyer – he holds a Ph.D. in economics, and has been active as an expert witness in various regulatory inverse condemnation cases, so his understanding of these matters is both scholarly and pragmatic, as well as legal and economic. He won our heart and mind a while back when he wrote another article about Penn Central (Penn Central’s Economic Failings Confounded Taking Jurisprudence, 31 Urban Lawyer 277 (1999)) in which he aptly characterized the Penn Central decision by the New York Court of Appeals as “economic lunacy.” So as they say in New York, what’s not to like? We recommend that you read it and draw your own conclusion.
Full disclosure: Your faithful servant has also criticized Penn Central and has performed a full legal autopsy on that decision. Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 William & Mary Bill of Rights Journal 653 (2005). It demonstrated that Penn Central was a doctrinal and intellectual mess, to put it politely. What else can you say about a precedent which the U.S. Supreme Court deems to be the “polestar” of its taking jurisprudence, but in which it confesses its own inability to state the elements of a regulatory inverse condemnation cause of action? We could go on and on, but we won’t. Suffice it to say that the wretched Penn Central litigation produced three – count ‘em, three – appellate opinions, but none of them had anything whatever to do with the subjects discussed in the other two. You don’t believe us? Then do read our Penn Central article. Finally, in spite of New York City’s nominal victory in the courts, guess who wound up paying for the maintenance and restoration of Grand Central Terminal? That’s right, folks — New Yortk City. Which is what Penn Central contended should have been the case from the beginning of that litigation. And so it goes.
The second current Urban Lawyer article that’s worthy of note is Robert H. Thomas, Recent Developments in Challenging the Right to Take in Eminent Domain, 42 Urban Lawyer 693 (Summer 2010). The title says it all. It’s a good read that will keep you up on what is going on.
Thomas runs the www.inversecondemnation.com blog, and a classy operation it is. We recommend frequent visits to it.