One of the cool things about my part-part-part-time gig with Mayer Brown LLP is that I get to help my colleagues on some of the most fascinating constitutional law cases around. One very recent example is the certiorari petition in Empress Casino v. Giannoulias, a case involving a pretty deep split on the important question of when a monetary exaction becomes a taking for Takings Clause purposes. The split has been aggravated by the Court's fractured opinion in Eastern Associates v. Apfel (1998) — 4-1-4 decisions tend to do that — though it existed even independently of that case.
Our very own Ilya Somin, together with Eric Claeys, Richard Epstein, Nicole Garnett, and Eric Kades, has also signed on to a law professors' amicus brief in support of the petition, written by Stephen B. Kinnaird and his Paul, Hastings, Janofsky & Walker colleagues; and this amicus brief from the Mountain States Legal Foundation, one of the oldest pro-property-rights (among other things) public interest law firms, is also very good. If you're a Takings Clause buff, check them out — this is important and very interesting stuff.
Related Posts (on one page):
- George Will on the Empress Casino Takings Case:
- Wall Street Journal Editorial on the Empress Casino Takings Case:
- Takings Clause (with Parochial Link to Two of the Volokh Conspirators):
That notwithstanding, and excepting the Conspirators, perhaps the steps from the ivory tower are too treacherous to navigate.
Did I earn myself a beer?
The reasoning depends on the court and the stage, I suspect. At the cert stage, I would think the reasoning is that clerks will note the names of professors they know or had, and that will make the case seem very important to them and therefore more likely to generate a more complete and lengthy cert pool memo that will be taken more seriously. At the merits stage, the reasoning is that the Justices will note the names of professors they respect, and that the Justices will be particularly interested in and open to the views of that group. Of course, actual mileage may vary, depending on the case and the brief.
I've never worked on a "law professors" brief, but I would guess that a handful of the professor signatories take the lead and call the shots as to the substance of the brief. I'm sure that the people at Paul Hastings had a substantial role as well and weren't just acting as paralegals and research assistants.
I don't know the answer to your question, but it's a question that's occurred to me as well.
In my experience, a lawyer writes the brief. He then e-mails around a bunch of professors and asks if anyone would sign it. When some professors agree, it becomes a law professor amicus brief. Sometimes they get a rough okay before writing the brief so they know someone will sign it before it's written. But the usual practice is for the law profs who are signing it to have no actual imput as to the brief's contents. (Of course, I am not saying that was the case here-- indeed, I would guess it wasn't, as this is a small but active group of lawprofs who I would think needed to get their 2 cents in. But that's the usual practice.)
I've never worked on a "law professors" brief, but I would guess that a handful of the professor signatories take the lead and call the shots as to the substance of the brief. I'm sure that the people at Paul Hastings had a substantial role as well and weren't just acting as paralegals and research assistants.
At least in this case, you are correct on both counts.
Don't know if that is the "usual practice." But it's not what I do.
Out of curiosity, does your position imply that raising the income tax on some top X% of earners or the estate tax on some top Y% of estates would be a taking as long as X or Y is sufficiently low? Is there a bright-line distinction that would let the Court accept your position without inviting such challenges?
If there is no bright line, won't the Court be worried that accepting your argument could lead to a string of sweet-mystery-of-progressive-taxation cases trying to locate X and Y? Or does Eastern Enterprises Kennedy/dissent style substantive due process already commit the Court to that enterprise in theory, suggesting that, as the Court hasn't already been inundated with such cases, the floodgates are unlikely to open if the rubric changes to takings.
But maybe an ability to challenge highly progressive taxes as takings would be a feature, not a bug, for some of the people writing the briefs on your side? (I honestly couldn't tell -- it's not always the briefwriter's job to set out the rule of decision for the next case, though I would be concerned about it here if I were a justice -- and I guess I'm genuinely asking.) But even for those who think that would be a feature, wouldn't there be a concern that if takings and taxes are equated, the probable reaction of the Court to protect even fairly high rates of progressivity from invalidation might, precisely because of that equation, come back to dilute the protections of the takings clause on its more traditional, non-monetized, turf?
Gosh, golly, and gee whiz, you'da thunk them folks dat writ da Consteatooshun woulda put sum limits in da thing insteada leavin it two sumone elz to de side.
What a bunch a crap! From the song:
If you haven't got a penny, / A ha'penny will do, / If you haven't got a ha' penny, / Then God bless you.
The Fifth's taking is about property, all property, every red cent or maybe even half a pence!
As always, it's about people exercising their power in an attempt to prove they have it but of course exercising it in this manner proves the person exercising it really has none. Wait til they anwser to the big judge.
Dominus providebit!
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