We were all set to take a deeper dive into the Court of Federal Claims's recent opinion in the "downstream" Harvey flooding cases (we could not do so at the time the opinion was issued last week because we were tied up doing real lawyer stuff), when our Reno, Nevada colleague Steve Silva (who most recently was on the faculty at the ALI-CLE Conference in Nashville) beat us to the punch.
On his Taking Nevada blog, Steve has posted "Major flood decision in Texas turns on Divine Intervention" --
Analyzing and comparing tort to taking is difficult. A tort is generally seen as something wrongful. A private injury committed by one person against another. A classic “taking” by exercising the power of eminent domain in direct condemnation to acquire land and pay compensation is not a wrongful act. It merely is....Further complicating things, the clearest federal mechanism for vindicating a landowner’s right to just compensation – an action under 42 U.S.C. § 1983 – IS a suit at law in tort. So, some flavors of inverse condemnation actions are shoe-horned into tort. Finally, there exists a thing called a torte, and they are delicious. This is . . . confusing.
We're not sure that we would have too much more to add to his comprehensive review and analysis.
So check it out, and thanks for doing the post, Steve.
Oh, you should follow his blog and Twitter (@StevenSilvaNV) too.
