Monthly Archives: April 2016

Great Dissent!

If you are a “ripeness” maven who is into the incredible intellectual, doctrinal and moral mess that is the law of ripeness in inverse taking cases, do read the brand new dissenting opinion of Justices Thomas and Kennedy in Arrigoni Enterprises v. Durham, No. 15-631,  578 U.S. ___ (2016) that came down today along with, alas, an order denying certiorari.

Go to  and see for yourself.

What this order and dissent demonstrate to us is that the ripeness mess is not a case of the Supreme Court failiure to understand the problem as we supposed in the past from time to time. It is now clear that no intelligent, English speaking person can possibly read the expository part of this dissent and still suppose that this court-created morass of Kafkaesque procedures, rampant conflicts of decision and outright judicial refusal to deal with an important constitutional issue that affects a fundamental constitutional right has been created inadvertently.

We are supposed to respect the courts because of the importance of their function. But respect has to be earned, and it is difficult to respect the prevailing “ripeness mess.”

Note that the dissent cites with approval a law journal article by Michael Berger and your faithful servant. We are flattered, but that does not change the fact that the law involved here is a mess.

Follow up. For a concise summary of the Thomas-Kennedy dissent, see the analysis of our fellow blogger Robert Thomas on

Lowball Watch — Louisiana

Word reaches us that in an eminent domain taking of a parking lot by Louisiana State University for a Medical Center, the offer was $172,000, but after trial the court awarded a total of over $500.000, including attorneys fees, business losses, and future lost profits. The Louisiana Court of Appeal affirmed, and the state Supreme Court denied review, thus making the trial court judgment final. Interest on the award (at 5%) is yet to be calculated.

In an unusual twist, the court also awarded damages for mental anguish suffered by the owner during the ten days of pre-expropriation trespass during which the condemnor removed personal property from the subject property, and cleared and graded the land.

Keep in mind, however, that under the unique provision of the Louisiana Constitution, a condemnee is entitle not just to the fair market value of his land and improvements, but to all damages, “to the full extent of his loss.”

California Choo-Choo (Cont’d.)

Be still, my heart!

An editorial in today’s Los Angeles Times slams the management of our coming “bullet train” because of its planners’ change of plans — another one — under which the first segment of the planned San Francisco to Los Angels, and a bit beyond, bullet train would be built in Northern California while the more difficult segment of the route over the Tehachapi Mountains and on to Los Angeles would come later. “But left unsaid in the  draft 2016 business plan is how exactly the [railroad] authority will get the money to build the bullet train to Southern California.” So the first segment of the bullet train would go only from San Jose to the Central Valley . . .”and the rail line would peter out in some farmland near Shafter, about 20 miles south of Bakersfield.”

“[T]he plan does not explain how the authority will come up with the estimated $43.5 billion needed to construct the rail line from the Central Valley to Los Angeles and ultimately Anaheim, which it has planned to do by 2029.”

For the whole LA Times piece, see Editorial, Who Is Going to Pay for the Bullet Train to L.A., Los Angeles Times, April 17, 2016. html

By the way; have you ever been to the farmland 20 miles south of Bakersfield? No? It’s the proverbial middle of nowhere. So take our advice and spare yourself the cost and effort of getting there.


Why Doesn’t the Judge Give that Defendant Frequent Flyer Miles?

We depart once again from our usual topics of eminent domain and land use, to share this gem with our readers. Today’s LA Times reports that a Mexican gentleman has been arrested and evidently sentenced to five years in prison. The Times article discloses that the miscreant in question had been caught escorting illegal aliens into the US 23 times in the last 17 years. No, we are not making this up; it’s sitting right here in front of your faithful servant in living black and white. See Teri Figueroa, Migrant Smuggler Gets Prison Term, L.A. Times, March 29, 2016, at p. B3. Evidently each time he was deported he turned around and came back, with a clutch of illegal aliens whom he guided through the border. Last time, says the Times, his charges complained that he robbed them before bringing them to the Promised Land

According to our calculator, that comes to one round trip 1.35 times a year. It would be appropriate, it seems to us, if at the end of each such deportation court proceeding the defendant were to say to the Judge “Thank you your Honor. See you next year.”

We tried to be funny, but it isn’t working. This is way beyond self-parody and goes a long way toward explaining why America is in trouble, and why Donald Trump’s calls for draconian border controls are finding resonance with so many people, and why he has done as well as he has in the polls.

California Choo-Choo (Cont’d.)

We offer this quote without comment, from today’s Los Angeles Times:

“[T]he agency could not identify the source of money to complete the entire Los Angeles-to-San Francisco system. That leaves a $43.5-billion gap in the business plan, scheduled for approval later this month.” Ralph Vartabedian, Senators Share Their Doubts About Bullet Train Financing With Rail Officials, L.A. Times, April 5, 2016.

For the entire LA Times article, go to