Re: Florida Pre-paid v. College Savings Bank

On Mon, 28 Jun 1999, Elaine Combs <ecombs[_at_]cravath.com> wrote:
>
> 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.

     This last sentence makes the point I was trying to make. I agree that it would be a waste of time to try to justify the abrogation legislation under a takings rationale now, even though the Court in very annoying fashion did not address the very different rationale that the takings clause argument presents. I believed that the Clinton Justice Department loathes the Takings Clause (a favorite clause of Republicans) and thereby failed to push the winning argument. See Heald & Wells, Remedies for the Misappropriation of Intellectual Property by State and Municipal Governments Before and After Seminole Tribe: The Eleventh Amendment and Other Immunity Doctrines, 55 Wash. & Lee L. Rev. 849 (1998). The Bank, unfortunately, followed suit.

> 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.

     Sure, it's long settled that the 11th amendment does not bar takings claims in state court.

-- 
NOTE NEW EMAIL ADDRESS BELOW!

Professor Paul J. Heald
University of Georgia
School of Law
Athens, Georgia 30602
706-542-7989

heald[_at_]arches.uga.edu