We’ve already weighed in on how the Court of Federal Claims’ decision holding that the government’s takeover of AIG was an illegal exaction, but that it wasn’t a taking. But here are the thoughts of others:
- Lawprof Ilya Somin: “Court rules that federal takeover of AIG was an “illegal exaction,” but not a taking” (“As Judge Wheeler notes, the rule that illegal exactions cannot qualify as takings is based on longstanding precedent. But I am nonetheless skeptical of its validity. It seems to me that a taking occurs any time the government seizes private property, regardless of whether the government’s action was otherwise properly authorized or not. just as unauthorized government action can violate other constitutional rights, such as those protected by the First Amendment or the Fourth Amendment, so too it can violate the Takings Clause of the Fifth Amendment. Nothing inherent in the logic of either takings or illegal exactions requires them to be mutually exclusive categories. The same government action could be both.”
- Takings lawyer Nancie Marzulla: “Catch a Falling Starr” (“Despite ruling in Starr’s favor on liability for an illegal exaction, the Court awarded Starr no damages, concluding that although unauthorized the Government’s intervention kept AIG out of bankruptcy. And had AIG filed for bankruptcy, its shareholders would most likely have lost 100% of their stock value.”).
- Lawprof John Echeverria: “Zero for Starr International in Bailout Suit” (“The U.S. Court of Federal Claims today handed Maurice (“Hank”) Greenberg and his attorney David Boies a stinging defeat by declining to award a penny in monetary compensation in their lawsuit seeking in excess of $40 billion in connection with AIG bailout. (The NY Times headline for today’s story about the case starts off by asserting, “Victory for Ex-A.I.G. Chief in Bailout Suit . . .;” we have to wonder what part of goose egg they don’t understand over at the gray lady.)”).
- New York Times Dealbook: “Judge in A.I.G. Case Rebukes David Polk Law Firm” (“The decision to put two senior lawyers from Davis Polk on the stand may have been a tactical mistake by the Justice Department because it opened the door to the plaintiffs to require the firm to produce internal communications that otherwise would have remained private. Several legal scholars said putting lawyers on the stand to testify is often risky, and it clearly backfired in this case.”).
- Wall St. Journal: “Former AIG Chief Greenberg to Appeal Damages Ruling in Bailout Case” (“Mr. Greenberg said he will appeal the decision not to award shareholders any of the $40 billion in damages they were seeking, according to a statement issued Tuesday by the firm Mr. Greenberg now heads, Starr International Co. Starr was AIG’s largest shareholder in 2008. “We respectfully disagree with the trial court’s legal conclusion that, under applicable appellate cases, there is no remedy for the government’s illegal conduct,” the statement said.”).