Rolling the Dice with Ambrose Bierce

Abstract

The Supreme Court tells us, as a matter of law, that a moratorium is not a taking per se, not even when it extends over a period of several years, allows the affected land owners no economically rational land use, and leaves them only with their obligation to pay property taxes and make mortgage payments. I, a barefoot country lawyer, find this quite confusing because in 1987, in the First English case, the court held quite the opposite, that a denial of viable economic use of land for a similarly long period of time can be a taking per se requiring payment of just compensation. And so, since my meager intellectual resources are probably unequal to the task of plumbing this mystery, I leave to my colleagues the task of parsing Justice Stevens's reasoning in the Tahoe-Sierra case. For the moment I have had my fill of scrutinizing this intellectual shell game, though I have been known to indulge in such activity (Gideon Kanner, Hunting the Snark, Not the Quark: Has the U.S. Supreme Court Been Competent in Its Effort to Formulate Coherent Regulatory Takings Law? 30 The Urban Lawyer 307 (1998)).