Rations and Takings

Abstract

Andrew Coan's judicial capacity model explains many things about the pattern of U.S. Supreme Court opinions. Among other things, it perhaps inadvertently explains why the Court makes such wretched decisions about state and local government, particularly in connection with regulatory takings claims. As Coan explains, the Court defines these small-scale regulatory issues as "normal," not requiring anything more than sporadic intervention. But because it can dodge these issues, the Court never becomes familiar with them except in the most superficial way and has little incentive to come up with sensible solutions. Instead it episodically creates off-the-cuff categories that often disrupt state and local governance practices. This article will give a number of examples from takings cases, including several mentioned in Coan's book, e.g. the "physical invasion" and "total takings" categories, as well as the Court's vexingly intrusive decisions about conditions on land use permitting. Together these decisions create confusion, ignore the patterns in which property rights normally evolve, and impede state and local efforts to deal with major environmental problems such as waste management and adaptation to climate change. Many of the Court's decisions also strongly hint at an underlying prejudice against state and local government.