Litigation
Cal. Litig. 2020, Volume 33, Number 2
Content
- Affirmative Action Quandaries the Affirmative Action Puzzle: a Living History from Reconstruction to Today (Pantheon:322 Pages) By Melvin I. Urofsky
- Editor's Foreword Sweet Successes — On or About 31 Flavors
- From Cla's Ceo a Personal Plea for Addressing the Root Causes of Racism
- From the Section Chair News for a New World
- Insurance Coverage Analysis Avoids Malpractice Landmines
- Intellectual Property Litigation and Other Updates in the Video Game Industry as of April 2020
- Masthead
- MCLE Article Threats, Extortion and Legitimate Advocacy
- Navigating the New Settled Statement Procedures
- Nuts and Bolts of Videoconference Dispute Resolution in the Time of Covid-19
- Recent Legislative Changes Affect Long-Standing Pre-Trial Discovery Practice
- Showing Lack of Probable Cause: Plaintiff's Burden of Proof in Opposing an Anti-Slapp Motion Attacking a Malicious Prosecution Claim
- Stringfellow Acid Pits: the Toxic and Legal Legacy By Brian Craig
- Table of Contents
- That Family Is Wrong for You: Religious Objections Before the Supreme Court
- The Puzzle of Precedent in the California Court of Appeal
- A Long and Winding Road to Undo Bad Supreme Court Law
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).