If you know, you know.
Sad birthday wishes to what just might be our most un-favorite decision ever, Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), which turns 46 today. This in addition to the unhappy Kelo-versary earlier this week. A takings and regulatory takings one-two punch!
Time has not treated the opinion well. Practitioners, judges, and legal scholars across the spectrum have called the three-factor Penn Central test for an ad hoc regulatory taking “demanding,” “fuzzy,” a four-part test, “neither defensible as a matter of theory nor mandated as a matter of precedent,” and “problematic” and “mysterious.”
No one but the Supreme Court professes to understand what that case means. Courts mess up the basic meaning of the factors, treat what is supposed to be a fact-centric “ad hoc” test as a legal question decided on the pleadings, and gatekeep most of these cases from juries.
The definitive deconstruction of the case was Professor Gideon Kanner’s “Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York,” 13 Wm. & Mary Bill Rts. J. 679 (2005). A must-read for anyone who plays in the Penn Central sandbox. Or take a listen to the Bound by Oath podcast episode “Groping in a Fog” (also featuring Professor Kanner). Or both. As Gideon noted:
Host John Ross: The Court said, there would be quote “no settled formula” for determining when a taking requiring just compensation had occurred. But there are three factors to consider. It didn’t say how much weight courts are supposed to give each factor or what evidence litigants could use to satisfy them.
Gideon Kanner: So it was another one of these impossible-to-meet criteria. There were three factors. There’s no rule, but three factors, such as the impact on the owner, the nature of the government activity. So we all looked at each other: What the hell does that mean? All it did was confuse the law. The Court was groping in a fog.
You will walk away from the article and podcast with the impression that the issue was not well briefed, considered, argued, or resolved. The Court pulled the test out of thin air after no lower court considered it, and none of the parties briefed or argued it. Justice Brennan and the majority’s sleight-of-hand gave us the test that one later Justice called “the polestar.” For a polestar, it’s pretty weak sauce.
A reminder: Penn Central is not written in amber. One of these days, the Court is going to get the message that the decades-long experiment trying to figure out the “factors” and apply them to actual cases in a predictable way is a fool’s errand. Maybe then the Court will be ready to take a more reasoned look. If you want to be a part of rethinking Penn Central, listen to this episode of Clint Schumacher’s Eminent Domain Podcast with our colleague Jon Houghton (“Jon Houghton and His Penn Central Quest“).
But until something better comes along, let’s wish Penn Central an Un-Happy Birthday.
Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)