Cal. Litig. 2020, Volume 33, Number 2

A Long and Winding Road to Undo Bad Supreme Court Law

By Michael M. Berger

Michael M. Berger is Senior Counsel at Manatt, Phelps & Phillips, LLP in Los Angeles, and Co-Chair of its Appellate Practice Group. He has practiced takings law for the past 50 years, has experienced all the cases discussed in this article except the one from 1922, and has argued four takings cases in the United States Supreme Court.

What do you say when the Supreme Court establishes a critical new standard but it is simply wrong? How do you react as a lawyer? What can be done to set things right, and how long (if ever) will it take? This is such a story.

Every now and then even the ablest jurists — including those at the highest level — muff one. And when they do, it may take a while to fix. That happened to takings law 35 years ago, and it is only now in the process of being corrected. It has to do with what aficionados call "regulatory takings," i.e., takings of property caused by the impact of government regulations. And its focus is on whether the Fifth Amendment’s prohibition of uncompensated taking of private property for public use applies only to physical takings (e.g., taking a truckload of your raisins, to cite a recent example) or to regulatory takings as well (e.g., a rule making it illegal to sell your own raisins).

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