The U.S. Supreme Court issued its decision today in Horne v. Department of Agriculture, reversing the Ninth Circuit and ruling that the Hornes are not subject to monetary fines for violating the Department’s raisin marketing order. The fines were invalid, the Court ruled, because compliance with the marketing order would have resulted in a taking of private property without compensation under the Takings Clause. The Court split along depressingly predictable partisan lines, with four justices (you know who they are) joining an opinion for the Court written by Chief Justice John Roberts, and four other justices (you know who they are) dissenting in whole or in part. Many people will have interesting things to say about this case, which will deserve continued study, but here is a brief recap and a few initial observations. Read the rest of this entry »
Ever since the cert. grant in Horne v Department of Agriculture in January, plus teaching responsibilities, plus a bunch of other things, I have been delinquent in keeping this blog up to date. With the Horne argument before the U.S. Supreme Court yesterday and my last class today, I feel liberated. I’ll have some observations on the oral argument in Horne tomorrow. But first, some accounting of what I have been up to:
I filed this amicus brief on behalf of the International Municipal Lawyers Association in the Supreme Court in Horne.
Thirteen briefs were filed in support of the Petitioners, and the second brief in support of the Respondent was filed by Sun-Maid Growers of California. So, at a minmum, the IMLA brief offers the Court a unique perspective.
Here is a new article on Koontz, “The Costs of Koontz,” which will be published in the Vermont Law Review, 39 Vt. L. Rev. 573 (2015). The purpose of the article is to lay out as plainly as I can the costs of Koontz in terms of (1) increased incoherence of takings doctrine, (2) impairment of separation of powers, (3) undermining of federalism values, and (4) lost effectiveness and efficiency of land protection and management.
It is a follow up to “Koontz: The Very Worst Takings Decision Ever?” published in the NYU Environmental Law Review.
Finally, this piece was just published by the Harvard Law Review Forum as a Response to an Essay by Professor Tom Merrill published in the Harvard Law Review, “Eschewing Anticipatory Remedies for Takings: A Response to Professor Merrill,” responding to “Anticipatory Remedies for Takings,” 128 Harv. L. Rev. 1630 (2015).