It’s Monday, so we’re just going to ease into the week by (inter alia) reading a couple of law review articles:
- Federal Courts and Takings Litigation, by Prof. Ann Woolhandler & Prof. Julia D. Mahoney: “While Knick clearly expands the lower federal court role in takings claims, many questions remain, for it is not yet clear whether federal courts will embrace a robust federal judicial role in land use cases. This Article surveys the history of takings claims in the federal courts and recommends that going forward federal courts develop an abstention doctrine particular to takings cases in order to ensure prudent deployment of judicial resources. This Article also explains why § 1331 actions may be superior vehicles for takings cases than § 1983 actions.”
- Swallowing its Own Tail: The Circular Grammar of Background Principles Under Lucas, by Prof Gregory M. Stein: the article “argues that the “background principles” exception that Lucas claims to have recognized is, for purely linguistic reasons, not an exception to the rule of that case. Justice Kennedy alluded to this fact in his Lucas concurrence, remarking on the “inherent . . . circularity” of the Court’s analysis. Professor Glicksman recognizes this circularity and states, even in his title, that the exception swallows the rule. The Lucas Court’s discussion goes beyond circularity, however, effectively swallowing its own tail. It sets forth a rule that at best contains two clauses that are redundant and at worst intrinsically incorporates its own inconsistent exception.”
Check them both out.