Yesterday, I finished covering the law and doctrine from my forthcoming article about the Supreme Court case Tyler v. Hennepin County, Minnesota. As I showed on Monday, the U.S. Supreme Court held that surplus equity constitutes “private property” sufficient to support claims under the Takings Clause. As I showed on Tuesday, in the course of reaching that holding, Chief Justice Roberts made a little clearer and more orderly the principles the Court relies on when it makes choice of law decisions in takings litigation. Roberts announced that the Court was following a strategy for takings similar to the strategy it applies for other federal constitutional rights. That general strategy is associated with Indiana ex rel. Anderson v. Brand-start by measuring the right under state law, but measure it with independent sources if the most relevant state laws seem likely to convert the Takings Clause into a dead letter. As I showed yesterday, however, Tyler and earlier takings choice of law cases depart slightly from the Brand strategy. In Tyler, not only did the Court take a second look at the law of Minnesota (consistent with Brand), it also consulted early English and American general law on the question whether surplus equity has been treated as a property right.
To this point, I’ve tried to explain how Tyler follows and how it departs from different lines of doctrine. And also to this point, I’ve reserved judgment on whether the Tyler strategy is convincing normatively. I think the Tyler strategy makes a considerable amount of sense, at least when applied in the contexts in which the Court has applied it. Today, I’ll explain why-and, why I don’t find any of the other strategies likely to be better in the same contexts.
I’m going to make two separate arguments on behalf of the Tyler strategy. One argument relies on originalism. Assume that there are convincing arguments to interpret the Constitution in light of its original meaning. (I know, I know, arguments for originalism are bound to be controversial and contestable. But every justification for any constitutional-interpretation theory is fraught, and I’m persuaded by some of the cases for originalism.)
It is not easy to work out what “private property” meant originally at the Founding. (The problems get even worse if one thinks, as Justice Thomas and I do, that what I’ve been calling “Takings Clause law” in this series is actually grounded in the Privileges or Immunities Clause of the Fourteenth Amendment.) The sources that early American lawyers knew best and followed most took for granted that property exists, without spelling out exactly what it is. At the same time, competent lawyers do pretty well at sorting different legal entitlements into rights of “property,” “contract” and so on without precise working definitions. So the Tyler strategy seems promising. Ordinarily, federal courts can and will just follow state property law. But when state law seems unreliable-or, threatening to some legal entitlement that might constitute constitutional “private property”-courts can cross-check it against early general law.
My other argument for Tyler is not originalist. When federal courts decide whether particular legal entitlements constitute “private property,” they are deciding whether they should make a little broader or keep a little narrower the sphere of entitlements protected from political interference by state political processes. To figure out what “private property” means and covers, federal courts might rely on their own judgment, and they might rely instead on state law. Each approach comes with problems. On one hand, if federal courts relied entirely on state law, they would turn blind eyes to gamesmanship by state legislatures. On the other hand, if federal courts relied entirely on their own judgment, they might make serious mistakes. They might classify as constitutional property legal entitlements that are beyond the scope of property properly understood. Or, on some topic broad definitions of property might not be determinate enough to say whether a particular legal entitlement is property, and on that topic reasonable minds might differ. In such cases, federal courts might impose a one-size-fits-all answer on a question where there might be several reasonable legal answers.
Given those uncertainties, Tyler‘s strategy makes a lot of sense. That strategy is modest, and it lets federal courts put off making federal declarations of what property is and isn’t. States rely on property being a coherent and determinate concept. State tax, bankruptcy, and eminent domain statutes all act on property rights without defining those rights. If those fields of state law can all take for granted that a state has a coherent concept of property, federal takings law usually can, too. Some cases are different. In some cases, federal courts will be absolutely sure that an interest in dispute is a property right-in particular, when a piece of legislation authorizes the seizure or occupation of land and triggers the per se regulatory takings doctrine for “regulatory touchings.” In those cases, federal courts be sure that a federal right is in play no matter what state law says.
In another set of cases, though, the legal entitlement in dispute isn’t clearly at the core of private property, but there are serious arguments that the entitlement is and has consistently been classified as private property. In cases like those, it seems a reasonable compromise-between broad federal court discretion and broad deference to state law-to ask whether the entitlement was regarded as property in the English and American sources that made up the general law when the Takings Clause was ratified.
There are three main alternatives, and I don’t find any of them more satisfying. The main alternative, supported in property scholarship and in the state and local government wing of the eminent domain bar, argues that federal courts should follow state law exclusively and not look past it. To that view I have one basic reaction. Pick any other right in the Bill of Rights-free speech, religious free exercise, or freedom from unreasonable search or seizure. Would it seem right to say that a claimant’s constitutional rights (if any) were entirely creatures of the law of the state in which the claimant is bringing a constitutional lawsuit? In the 1994 case Dolan v. Tigard, the Supreme Court warned against making the Takings Clause into a “poor relation” in contrast to other Bill of Rights guarantees. Without exceptions like the ones I just described, the view that property rights are creatures of state law does exactly that.
Thomas Merrill has defended another alternative, which he calls a “federal patterning” approach. In that patterning approach, the question whether some entitlement is property is a federal question. Federal law lays out a few broad criteria that entitlements must satisfy to count as property, while in practice state law settles whether particular entitlements count as property. When federal courts study state law, they are asking whether interests that are called property rights in state law possess the criteria they must possess to count as property for the federal pattern. That approach seems well and good when states legislate on entitlements that seem central property-like the right of exclusive control associated with property. It doesn’t work so well when it isn’t clear that the entitlement in dispute satisfies federal criteria for property. Like the surplus equity at issue in Tyler. Or, like bank interest, when a government forces people to deposit money and keeps the interest for its own uses. (That practice was tried in Webb’s Fabulous Pharmacies v. Beckwith (in a court-managed interpleader fund) and in Phillips v. Washington Legal Foundation (in a program diverting interest from client funds held in trust to fund state legal service programs).)
The last alternative is to disregard general property law and follow Brand more closely-as ReaderY put it in a comment this week, to follow state law in all cases except “only in the specific case where a state gives itself an advantage that its law does not allow to other” actors in the state. I have two reactions. First, in my opinion, I would strongly oppose that strategy in cases in which a state abolished, for itself and for all citizens, some entitlement clearly central to property-like the concept of title, or the right to exclude. Second, I question a couple of assumptions I think ReaderY is making: that the general law approach broadens the scope of constitutional property, and also the discretion exercised by federal courts. If courts looked past state law whenever state law seemed to give state governments “advantages” private parties weren’t getting, I suspect they would be busier than they would be studying whether particular entitlements were recognized as “private property” by a broad and representative cross-section of sources around the time the Fifth Amendment was ratified.
And with that, I’ve gone through the main arguments in my forthcoming article. But Tyler also raises interesting jurisprudential issues. As my discussion this week has suggested, Tyler is raising in the context of takings litigation issues similar to the issues in dispute between Swift v. Tyson and Erie Railroad v. Tompkins. And the scholarship bears as much out; in his article, Merrill contrasts his “patterning” approach with what he calls “natural” and “positivist” alternatives. Tomorrow, I want to talk about some of the questions Tyler raises in jurisprudence. And, I’ll use tomorrow’s post as a “reader mailbag” covering any other questions TVC readers pose.
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