TEXAS TAKINGS BBQ II

Tim Sandefur responds to my previous post (and also has a long post that I agree with at least to this extent, that the word "activism" is meaningless). He argues that Lochner is a "bogeyman" in the area of takings, but that's not quite right; it's more like a bogey-uncle, or bogey-dad, at least when we're discussing the "substantially advanced" test from Agins, since that test is an import from due process into takings. I facilitated a bit of a misunderstanding here by combining my doubts about judicial inquiry into "purpose" with the more narrow critique on the importation of due process standards that folks affiliated with GELPI have been advancing.

The narrow point still stands. Surely Tim would admit that there is a difference between jurisdiction stripping (which he takes me to me advocating, I think; my mistake in giving him that impression!), rational basis review, and the heightened standard of review that some courts have taken Agins to require or allow in takings cases. I don't have an opinion on "categorical rules" versus balancing tests; much depends on the content of the rules and on who is applying them. Tim's proposed categorical rule doesn't help clarify things very much ("a categorical rule of compensation for every taking of property for a public use"), since it's just a restatement of the Takings Clause itself. This is a testimony to Tim's belief that he is advancing the one true account of the Takings Clause, which is fine, but it's not much help for those of us who suspect that there is a lot lurking underneath the word "taking" when they read it on Tim's blog.

On another note, reader Archie calls attention to "The Takings Clause as a Comparative Right" by John E. Yee, 76 Southern California Law Review 1003 (076501.DOC), which he found via Larry Solum. I haven't read the article yet but may have something to say about it later.