See note 3 page 815-816 (discussing Keystone decision). I have not assigned Keystone.
Notice that in Keystone the Supreme Court did not overrule Pennsylvania Coal. Thus, both cases remain "the law of the land."
Is it possible to follow both X and not X? In other words, suppose a third case involving the regulation of support estates comes before a lower court. How should that case be decided? Is the regulatory confiscation of "support estates" a taking as in Pennsylvania Coal, or not a taking as in Keystone?
How did Justice Stevens attempt to distinguish Pennsylvania Coal?
See 480 U.S. at 481 ("the similarities are far less significant than the differences").
What are the differences?
1. Stevens says that in Keystone the government "has acted to arrest what it perceives to be a significant threat to the common welfare." (id. at 485)
How is this a difference from Pennsylvania Coal? Wasn't the major point of the Brandeis dissent in Pennsylvania Coal that there was no taking there because the government had acted to prevent the coal mining companies "from making a use which interferes with the paramount rights of the public" and thus a regulation "imposed to protect the public health, safety or morals from dangers threatened is not a taking?" (p. 814). And what was Justice Holmes response to this dissenting argument? See p. 813:
"The rights of the public in a street purchased or laid out by eminent
domain are those that it has paid for. If in any case its representatives have
been so short sighted as to acquire only surface rights without the right of
support, we see no more authority for supplying the latter without
compensation than there was for taking the right of way in the first place
and refusing to pay for it because the public wanted it very much. The
protection of private property in the Fifth Amendment presupposes that it is
wanted for public use, but provides that it shall not be taken for such use
without compensation."
2. Stevens also argues that the facts of Keystone are different because "there is no record in this case to support a finding, similar to the one the Court made in [Pennsylvania Coal] that the Subsidence Act makes it impossible for petitioners to profitably engage in their business, or that there has been undue interference with their investment-backed expectations." (480 U.S. at 485).
Is this a fair description of Justice Holmes' majority opinion in Pennsylvania Coal finding that the regulation in that case made "it commercially impracticable to mine certain coal?"
Did not the regulation in Keystone render it "commercially impracticable" for the coal companies to mine the 27 million mines of coal that were required to be left in the ground to provide support? Compare "certain coal" in Pennsylvania Coal with 27 million tons of coal in Keystone. (See 480 U.S. at 498: "The 27 million tons of coal do not constitute a separate segment of property for takings law purposes.")
Consider Chief Justice Rehnquist's dissent:
"In sum, I would hold that Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act effects a taking of petitioners' property without providing just compensation. Specifically, the Act works to extinguish petitioners' interest in at least 27 million tons of coal by requiring that coal to be left in the ground, and destroys their purchased support estates by returning to them financial liability for subsidence. I respectfully dissent from the Court's decision to the contrary."
What is going on in Justice Stevens' opinion in Keystone? Has he persuaded you that the differences between Pennsylvania Coal and Keystone are significant and support different results in the two cases?
Or is this a case in which Justice Stevens, without overruling Pennsylvania Coal, has clearly rejected Justice Holmes' majority opinion in the case and instead adopted Justice Brandeis's dissent? Is this intellectually honest?
Now consider this excerpt from Justice Scalia's must-read book, A Matter of Interpretation, at p. 9:
As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, every newborn American lawyer, first sees when he opens his eyes. And the impression remains for life. His image of the great judge—the Holmes, the Cardozo—is the man (or woman) who has the intelligence to discern the best rule of law for the case at hand and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule: distinguishing one prior case on the left, straight-arming another one on the right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal—good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on.
Of course, there is a big difference between the judge's role in making the common law, and her role in carrying out the commands of the Written Constitution. What is the difference?
