Real Estate & Property Law

Making Regulatory Takings Harder

By Robert Thomas (inversecondemnation.com)

More on the closely-followed case rent control regulatory takings decision from the Ninth Circuit, Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009), which is currently being reheard en banc by the Ninth Circuit.

Earlier, we posted a link to Professor Richard Epstein's short article, Takings Law Made Hard, in which he opines that "[j]udged by the normal canons of judicial review, the likely outcome is that the [Supreme] Court will do to ... Guggenheim what it did to Judge Kozinski [in Hall v. City of Santa Barbara, 813 F.2d 198 (1987)]: reverse and enter judgment for the defendant." 

Responding to Professor Epstein, Pacific Legal Foundation's RS Radford has posted Takings victories made harder, pointing out the "technical deficiencies" in Epstein's article that undermine his conclusions. Radford writes:

Whatever Prof. Epstein?s reasons may have been for rushing into print to condemn the Guggenheim decision, his effort has apparently not gone unnoticed. On March 12, the Ninth Circuit granted the City of Goleta?s motion to rehear the case en banc, meaning that this rare victory for property owners has been snatched away, at least for the time being. Those of us in the trenches of the never-ending war for property rights will have to fight this battle over again. If, against all odds, another hard-won victory is achieved, can we at least hope not to come under hasty fire from behind our own lines?

We recommend reading both articles and the Ninth Circuit panel's opinion, then making up your own mind.

Full post as published by inversecondemnation on March 29, 2010 (boomark / email).