Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. V. City of New York
Kanner, Gideon, The William and Mary Bill of Rights Journal
The life of the law has not been logic: it has been experience.1
[T]he life of the law is not logic, but expethence.2
This Article does not seek to unravel the twists and turns of substantive legal doctrine said to govern regulatory inverse condemnation law. Others have done so in a fulsome fashion, and my own contribution to that subject may be found in an earlier article.3 Rather than parse the elusive substantive meaning of the Supreme Court's opinions that have provided fodder for so many critical commentaries, I inquire here primarily into how the courts got so important a subject so wrong. Though I do so primarily from the point of view of a specialized lawyer trying to understand what black letter rules, if any, govern this field of law, and how judges came to rule as they did in the Penn Central case,4 1 also believe that these legal developments should be viewed from a broader, civic point of view as well. With that in mind, I ask the readers to take a look with me at (I) how the quarter-centuryold Penn Central case arose, (ii) how it was decided as it wended its way through four court levels, and (iii) how, in spite of its dubious provenance and inconsistency with the Supreme Court's preexisting taking jurisprudence that has never been overruled, to say nothing of the Court's lack of jurisdiction to decide it,5 it somehow became the judicial "polestar" of regulatory takings law.6 The readers are invited to make their own judgments as to whether, giving due regard to how the Penn Central case was decided, it represents "landmark justice"7 or "economic lunacy,"8 to borrow the expressions oí Penn Central's admirers and critics respectively.
A personal observation seems appropriate before proceeding. My Professor title notwithstanding, I am, and throughout my forty-year-long legal career have been, an appellate lawyer practicing in the field of eminent domain and inverse condemnation. I conceive my function to be knowing the law, imparting it to my students, and bringing it to bear on a client's affairs when I act as counsel. I believe, naively perhaps, that the primary job of appellate courts is to resolve controversies in a principled fashion, and to provide society with precedents - rules that can be comprehended and applied to control similar cases so that in future controversies court rulings are reasonably consistent and the law need not be formulated all over again in each new case. Judicial result-orientation in pursuit of trendy political or ideological notions that may arise in a particular controversy, is counterproductive because such notions change continuously as popular attitudes change, and as different judges pursue different results. At the very least, changes in the law decreed by courts should be rooted in a thorough judicial knowledge of preexisting law and an understanding of the impact of contemplated change on it. That, however, was not the case in the Penn Central case. Indeed, there is now reason to believe that the revolutionary changes in takings doctrine wrought by the Supreme Court's Penn Central opinion were unintended. The way things turned out, developments in regulatory inverse condemnation law have become the antithesis of reasoned legal reform.
Penn Central lacks doctrinal clarity because of its outright refusal to formulate the elements of a regulatory taking cause of action, and because of its intellectual romp through the law of eminent domain that paid scant attention to preexisting legal doctrine. Its aftermath has become an economic paradise for specialized lawyers, a burden on the judiciary,9 as well as an indirect impediment to would-be home builders, and an economic disaster for would-be home buyers and for society at large. The vagueness and unpredictability of its rules, or more accurately the "factors" deemed significant by the Court which declined to formulate rules, have encouraged regulators to pursue policies that have sharply reduced the supply of housing and are implicated in the ongoing, mind-boggling escalation in home prices - a process that favors the well-housed rich and increasingly disfavors the middle class, to say nothing of those lower on the economic scale who are still climbing the rungs of the socioeconomic ladder. …