Good Read — A New Law Review Article on the “Ripeness Mess”

Don’t miss a new article by R.S. Radford and Jennifer Fry Thomas, The Accidental Abstention Doctrine, 67 Baylor L. Rev. 567 (2015). If you are a “ripeness mess” maven, the title says it all.

While the authors are being polite as is customary for law review writers,* their point is that the Supremes had no idea what they were doing when they concocted the ripeness doctrine out of the whole cloth, without it ever being raised or briefed by the parties in the Agins case which was presented to the court as a question whether the remedy in regulatory taking cases is “just compensation” like it says in the Fifth Amendment, or merely judicial invalidation of the challenged property regulation as argued by the city of Tiburon. At the time, that issue divided the courts all over the country, but instead of dealing with it honestly, SCOTUS just ducked it. It also bollixed up pertinent Tennessee law on which it relied. But that’s another story.

Moreover, the Agins holding by SCOTUS was contrary to Euclid v. Ambler Realty which held explicitly that no application for a land-use permit need be made before suing in federal court to challenge the validity of zoning. So how did the court solve that little problem? It simply ignored Euclid. And so it goes.

The issue decided by the court came out of the blue, evidently based entirely on a stray — and doctrinally wrong — sentence in the amicus brief of the Solicitor General who knew not whereof he spoke, and relied on a due process, not a taking case, as the U.S. Supreme Court later confessed in the Lingle case.

Do read the Radford-Thomas article. You will be better informed.**


*      This is an old problem; law review writers want to be polite so they produce incomprehensible verbiage that dances around judicial errors without making clear just how and how badly the court screwed things up. See, Fred Rodell, Goodbye to Law Reviews — Revisited, 48 Va. L. Rev. 279, 280 (1962).

** Full disclosure: Your faithful servant, aided by his student assistant, the late Agnes Mulhearn, did the briefing in the U.S. Supreme Court. He argued the case on behalf of the land owners, Dr. and Mrs. Agins.