Justice Scalia

Justice Scalia R.I.P.

I am brokenhearted by the death of Justice Scalia. He was the greatest Justice of my generation, maybe of all time.

If you have a chance to read something this week, here is a link to an interview with Nino.

Super Bowl Jublia Commercial

I hope you all thought of Nollan & Dolan and "rough proportionality" when you saw the Jublia commercial during the Super Bowl yesterday.

Jublia yes, amputation no (the cure is not proportional to the disease).

Horne v. Dept of Agriculture--Physical Takings of Personal Property

When the government physically takes personal property--such as a person's raisin crop--is this a taking that requires just comepnsation?

From SCOTUSblog:

Holding: The Fifth Amendment requires the government to pay just compensation when it takes personal property, just as when it takes real property. In this case, any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking; it does not mean the raisins have not been appropriated for government use. Nor can the government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce.

The per se rule of Loretto (a physical taking is a taking no matter how small) applies both to real property (such as an apartment building) and personal property (such as raisins or corn or automobiles).

"The Government has a categorical duty to pay just compensation wjhen it takes your car, just as when it takes your home." Majority opinion at 5. Chief Justice Roberts says this principle goes back "at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings." Id.

May the government condition your privilege to participate in the raisin market on your willingness to transfer 47% of your crop to the government? May the government condition your right to participate in the landlord-tenant rental market on your willingness to allow the cable tv company to run its cables on your building?

Answer no. "'Let them sell wine'" is probably not much more comforting to raisin growers than similar laws have been to others throughout history." Id. at 12. The government can regulate the raisin industry, but it may not require raisin producers to transfer title to part of their crop as a condition to participating in the free market for raisins. This is a physical taking, not an exaction that will be upheld so longs as proportional.

{Ask yourselves is this case more like Lorretto or more like Nollan/Dolan?}