Thank you, Eugene! It's always an honor and a pleasure to write for The Volokh Conspiracy. My topic this week is specialized, but it's one likely to interest quite a few TVC readers: When a federal court hears an inverse-condemnation ("takings") lawsuit, the first thing it needs to do is to determine whether the plaintiffs have constitutional "private property" sufficient to give them federal claims. What law should the court consult to determine whether the plaintiffs have "private property" sufficient to support such a lawsuit? Some TVC bloggers and readers are staunch supporters of property rights. Other TVC bloggers and readers are fascinated by the ins and outs of federal courts doctrine, and specifically the doctrines about conflicts between federal and state law in federal litigation. I hope that the question interests both sets of bloggers and readers.
The U.S. Supreme Court tackled my question in a 2023 decision, Tyler v. Hennepin County, Minnesota. The most important holding in Tyler is a holding about "private property" for takings litigation: When a government forecloses on real estate to recover on a tax debt, the real estate's owner has private property in any residual proceeds post-sale left over after the tax debt is paid off. (Property lawyers call those residual proceeds an "equitable interest," and this week I'll follow suit by calling the proceeds "surplus equity.") To reach that holding, however, the Court needed to rely on choice of law principles. And the Court's choice of law holding is interesting. An old wedding tradition encourages brides to wear "something old, something new, something borrowed, something blue." In Tyler, the "old" and the "borrowed" are the basic principles of choice of law in federal constitutional litigation. The new and the blue come in details in application of those basic principles. To decide whether Tyler had constitutional property in surplus equity, the Court canvassed a wider range of legal sources than federal courts usually consult.
I'm writing a forthcoming article about Tyler and its choice of law holding for the Journal of Law, Economics, and Policy, based at George Mason University, my university. Together with the Pacific Legal Foundation, JLEP hosted a symposium on the future of regulatory takings doctrine, and my article contributed to that symposium. I wrote the article for an audience different from the audience of a standard article in a U.S. student-edited law review—not just academics, but also bar and bench. (One of the advantages of that focus is that my article is mercifully short—only 10,500 words!) As I'll explain this week, my sense is that judges, clerks, and takings lawyers don't appreciate the niceties of the choice of law principles I study. I also have the sense that property scholars don't understand the choice of law principles, and federal courts scholars don't appreciate the complications that property law and takings law create in choice of law. But I'm not certain I'm reading my different audiences correctly. So if you think I'm reading your section of the room wrong, please post a comment or email me!
