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June 05, 2012


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Thomas' concurrence can likely be explained by his concurrence in Nordlinger v. Hahn, 505 U.S. 1 (1992), rejecting Allegheny-Pittsburgh.

Calvin Massey

The Thomas concurrence in Nordlinger explains why he would reject Allegheny Pittsburgh, but it doesn't fully explain why he would accept as rational the avoidance of the minuscule administrative burden of writing checks to identified taxpayers in specific amounts. That amounts to an incredibly deferential standard of rationality, but it's one that the Court hardly applies consistently.

James Grimmelmann

Possession is nine points in the law.

(I'm not defending the Court's decision, or attacking it, just noting how strong an intuitive pull possession exerts in shaping legal entitlements.)

Larry Catá Backer

Point well made. But not surprising given the development of legal cultures about the legal effect of the promises of large institutions in this country. A state can seek payment today from people who then accept the risk that tomorrow others may not have to pay to receive the same benefit; an employee may agree to provide labor today for a promise of future benefit knowing that tomorrow that benefit may disappear after labor has been provided. So, after reading the opinion the first thing I thought of was not government but collective bargaining contracts for benefits and wages. It is clear that the courts have come to understand that a company can induce action today on the promise of payment today (wages) and a benefit (pensions or health care, for example) tomorrow. But the company is obligated only to pay what is due and may avoid future payment (for example through bankruptcy and future bargaining). This is not to suggest a direct analogy, only a pattern of thinking from the private sector that may have some resonance here. Like a company (but in reverse perhaps) the government may keep what it collects but may bargain away its right to collect what is not yet due, even if the service has been rendered and the result is uneven. There is a lesson here for both homeowners and labor--for homeowners it is avoid paying now if there is an opportunity to pay later and for labor it is avoid acceptance of payment in the future for services performed in the present. In other cases, what is clear is clear is that there is a lower moral value on promises. As a consequence, the case promises a nice point for future empirical work--will landowners now act rationally in the face of this new set of financial risks in relations with the state.

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