Re: Florida Pre-paid v. College Savings Bank

On 06/24/99, Paul Heald <heald[_at_]arches.uga.edu> wrote:
>
> On Wed, 23 Jun 1999, Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > The court also held that the 14th Amendment's prohibition on taking
> > property (including, it was argued, a patent property right) without
> > compensation did not provide a away around the immunity.
>
> I hate to quibble (actually I love to quibble), but the Court did
> not address the Just Compensation Clause question. Unfortunately, the
> Court mentioned that "The United States declines to defend the Act as
> based on the Just Compensation clause." The opinion does not further
> discuss whether infringement is a taking of property without just
> compensation. Instead, it examines the plaintiffs' claim that their
> property was taken without due process, a different and less plausible
> claim that brings into play the doctrine of Parratt v. Taylor and
> Hudson v. Palmer, doctrines that are irrelevant in takings cases.
> There is little doubt in my mind that takings claims against the
> states are still viable, and perhaps now the only way to go. But we
> shall see.

To quibble with the quibbler:

While the United States failed to defend the just compensation argument, the Court properly noted that respondents did argue this point: "College Savings argues that [state patent infringement] 'takes' the property in the patent without paying the just compensation required by the Fifth Amendment." In finding the statutory grant of federal jurisdiction unconstitutional under the 11th Amendment, the Court thus foreclosed patent takings arguments in federal courts, at least in the guise of infringement actions. Perhaps a takings case asserting jurisdiction on purely Constitutional grounds would fare differently, even in federal court. I note, promisingly, that even given Alden v. Maine's banning of statutorily requiring state court consideration of Article I statutory rights, the path to bringing a Constitutional takings case in state court would still appear to be open, given the Supremacy Clause, notwithstanding the 10th Amendment.

Elaine Combs
<ecombs[_at_]cravath.com> Received on Mon Jun 28 1999 - 18:44:58 GMT