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Somin rebuts Hemel

Walter earlier linked to a Forbes.com article by Daniel Hemel that took issue with property-rights-expert Richard Epstein's characterization of Didden v. Village of Port Chester, an unpublished order written by a Second Circuit panel including Judge Sotomayor (note: because Judge Sotomayor was the senior active judge on the panel, the unsigned order almost certainly emanated from her chamber, under standard Second Circuit practice).

Hemel is obviously a smart guy, and he's written some good pieces for Forbes, but the 2007 graduate of Harvard College has no apparent legal training or experience, so he can perhaps be excused for failing to understand that it makes no sense to do what he does -- credit the defendant's characterization of the facts as true -- in a 12(b)(6) motion on the pleadings, under which a judge is supposed to credit as true the plaintiff's allegations. (This isn't a case of merely conclusory allegations as in Twombly; Didden at least seems to allege facts that would trigger the rather confused pretext analysis that the court would have to undertake under Justice Kennedy's Kelo concurrence, and for which a factual record could rather easily be built by deposing the parties.)

Professor Ilya Somin, whom I interviewed about the case earlier this week, rebuts Hemel here.

Note: It's important to point out, I think, that the court didn't really engage in any extended takings analysis in Didden. It did summarily opine on the takings issue as an alternative rationale -- which isn't unusual in an unpublished opinion, which lacks any precedential weight -- but it appeared to rest its decision first and foremost on a statute-of-limitations question. That question: whether Didden's case was time-barred in 2004 because he'd failed to file a claim in 1999 after the town originally drew up the economic development plan that could have ultimately included his property (as the court found), or whether the statute-of-limitations clock actually started clicking only when the town decided to condemn his property in 2003.

The answer isn't self-evident to me; a reasonable case could be made that Didden's claim in 1999 would have suffered from ripeness and exhaustion problems. Ideally, the court would have given the statute-of-limitations claim a deeper analysis, and if it still found the case time-barred, published an opinion on the matter, without reaching a conclusion on the underlying takings claim. Unfortunately, as with Ricci, the panel essentially ducked a potentially controversial question. (In case anyone would assume that I'm accusing Judge Sotomayor herself of willfully ducking tough constitutional cases, I want to emphasize that I'm not; regardless, there were three judges on each of these panels, and I doubt if Sonia Sotomayor could persuade her fellow Article III jurists to duck a constitutional issue that they thought deserved fuller treatment.)

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.