Jam for Justice Holmes: Reassessing the Significance of \u3ci\u3eMahon\u3c/i\u3e

When courts and commentators discuss Pennsylvania Coal Co. v. Mahon, they use the same word with remarkable regularity: famous. Mahon has achieved this fame in part because it was the occasion for conflict between judicial giants, and because the result seems ironic. Justice Oliver Wendell Holmes, Jr.--the great Lochner dissenter and a jurist generally considered a champion of judicial deference to legislatures in the sphere of economic decision-making--wrote the opinion striking down a Pennsylvania statute barring coal mining that could cause the surface to cave-in. Sharply dissenting from Holmes\u27s opinion was his consistent ally on the Court, Justice Louis Brandeis. The Mahon decision is also famous because it has become a virtual surrogate for the original understanding of the Takings Clause. Even though it is generally accepted that the Takings Clause was originally understood to apply only to physical seizures of property, the case law has now firmly established that it applies to government regulations as well. Mahon has satisfied the need of the law has grown, so has the amount of attention paid to this always prominent case. Part I of this article briefly presents the opinions in Mahon. Part II summarizes the competing schools of thought on the case\u27s place in takings history and the test Holmes employed, and discusses the general consensus that Mahon is a case protective of property rights. Part III presents the groundwork for an alternative account by reviewing the pre-Mahon case law (other than Holmes\u27s decisions), highlighting the generally overlooked cases involving regulation of businesses affected with a public interest. Part IV analyzes Holmes\u27s decisions prior to Mahon and argues that those decisions reflect a constitutional property jurisprudence that was both internally coherent and at odds with the era\u27s Supreme Court case law. Part V then shows how Mahon reflects Holmes\u27s unique and deeply innovative acceptance of deferential balancing. Finally, part VI discusses why Mahon has become so central to our takings jurisprudence and examines how a proper understanding of Holmes\u27s views would sharply alter current case law

The Original Understanding of the Takings Clause and the Political Process

The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. In 1922, however, the Supreme Court\u27s decision in Pennsylvania Coal v. Mahon established a new takings regime. In an opinion by Justice Holmes, the Court held that compensation must be provided when government regulation goes too far in diminishing the value of private property. Since that decision, the Supreme Court has been unable to define clearly what kind of regulations run afoul of Holmes\u27s vague standard. Attempts to do so, including the Court\u27s recent decisions in Lucas v. South Carolina Coastal Council and Dolan v. City of Tigard, have created a body of law that more than one recent commentator has described as a mess.” The Court and leading commentators have not seriously considered the possibility that there was an underlying rationale, worth reviving, that explains why the Takings Clause and its state counterparts originally protected property against physical seizures, but not against regulations affecting value. This article contends that the limited scope of the takings clauses reflected the fact that, for a variety of reasons, members of the framing generation believed that physical possession of property was particularly vulnerable to process failure. The article then argues on both originalist and non-originalist grounds for a process-based theory of the Takings Clause that departs dramatically from current takings jurisprudence

Introduction: Integrity in the Law: In Honor of John D. Feerick Symposium

Good morning. It is my privilege, and it truly is a privilege, to welcome you to Fordham Law School\u27s Integrity in the Law Conference, which honors John Feerick on the occasion of his retirement from the deanship after twenty years of remarkable service to the School, to the University, to the legal profession, and to the law. Dean Feerick\u27s career has been one of extraordinary accomplishment. In fact, as I was preparing my comments and looking at the list of positions he holds and has held, I was amazed, as I have been amazed in the past, that one person could achieve so much. He graduated from Fordham College and from Fordham Law School, where he was Editor-In-Chief of the Law Review. He was one of the first associates hired by Skadden Arps; he became a partner there and a leader in the field of labor law. He is a co-drafter of the Twenty-fifth Amendment. He is the author of a Pulitzer Prize-nominated book about presidential succession. He has been Chair of the New York State Commission on Government Integrity, where he worked tirelessly in the wake of the corruption scandals of the mid-1980s to make government worthy of the people\u27s trust, to make it worthy of our trust. He has been President of the Association of the Bar of the City of New York. He has been Chair of the Professionalism Committee of the ABA Section on Legal Education and Admission to the Bar. He has resolved countless labor disputes. Within the past month, he was named by Chief Judge Judith Kaye of the New York Court of Appeals to head a commission studying the judicial selection process. And then, a few days later, he was named by the City of New York and the Legal Aid Society to a three-member panel charged with working to resolve the crisis of homelessness in the City, a panel that would not have existed but for his work to broker the agreement. Again and again, when there is an intractable problem, people who fundamentally disagree agree about one thing: they agree that they can trust John Feerick. That\u27s a roster of achievement that would be enough for several lives. Far more important for John, it is a body of good works that would be enough for several lives

Introduction to Keynote Address: A Community of Reason and Rights

Introduction to the Keynote Address: A Community of Reason and Rights, delivered on October 4, 2007 at Fordham University School of Law

Takings Law and the Regulatory State: A Response to R.S. Radford

In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford provided an illuminating review of Dennis Coyle\u27s book Property Rights and the Constitution. Radford observes that, in addition to studying post-New Deal land use cases, Coyle provides an ideological framework that illuminates several key strands in the constitutional jurisprudence of property law ... [and] sets forth his own theories of the vital role of private property in creating and maintaining the American constitutional system. Radford\u27s review is a generally enthusiastic one. He sees Coyle\u27s book as providing a much-needed corrective to the existing pro-regulatory bias in the [scholarly] literature. He applauds Coyle, as well, for enriching our understanding of the competing preference systems that lead to different views about the legitimacy of land use regulation. Underlying Radford\u27s review is the idea that property rights deserve greater constitutional protection than they have received in the almost sixty years since the Supreme Court accepted the fundamental legitimacy of the regulatory state. Radford\u27s position in this regard is not novel, but reflects broader trends in the courts and in the academy. In particular, Professor Richard Epstein of the University of Chicago has argued that the Fifth Amendment\u27s Takings Clause should be interpreted to bar government actions with redistributive consequences-to bar, in other words, the modern regulatory state. At the same time, in a series of recent cases involving land use and the Takings Clause, the Supreme Court has expanded the scope of the Takings Clause, although its holdings have been narrower in scope than Epstein\u27s view would warrant. In this response, the author uses Radford\u27s review to talk about property rights and the Constitution. First, he reviews Radford\u27s interpretation and criticism of Coyle\u27s theory. Then the author discusses Radford\u27s Culture X theory in the context of Lucas v. South Carolina Coastal Council. Finally, he discusses the constitutional implications of Radford\u27s analysis

A Tribute to Hon. George Bundy Smith: Welcome and Introduction

Opening remarks at ceremony honoring Judge George Bundy Smith, including anecdotes from past students, an overview of Judge Smith’s career and accomplishments, and a recognition of distinguished guests in the audience

Judicial Review Before \u3ci\u3eMarbury\u3c/i\u3e

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this article shows that it was far more common than previously recognized: there are more than five times as many cases from the Early Republic as the leading historical account found. The article further shows that all of the cases in which statutes were invalidated fell into three categories: courts invalidated statutes that affected the powers of courts or juries, and they did so even when the legislation could plausibly be squared with constitutional text and prior practice; state courts invalidated state statutes for inconsistency with the federal constitution; and federal courts invalidated state statutes, and, again, they did so even when the statutes could plausibly be defended as constitutional. Scholars have missed this structural pattern, and the dominant view has been that only clearly unconstitutional statutes were invalidated. The article shows, instead, that the early case law reflects a structural approach to judicial review in which the level of scrutiny was closely linked to the nature of the challenged statute and that courts aggressively protected their power, the power of juries, and the power of the national government